Ex Parte Hollman , 79 S.C. 9 ( 1908 )

The petitioner, Jack Holman, was convicted before a magistrate and sentenced to imprisonment for violation of Section 357 of the Criminal Code. He now makes application for his discharge underhabeas corpus proceedings, upon the ground that the statute is unconstitutional.

It is objected that the constitutionality of the statute can not be tested under habeas corpus. This question has not been expressly decided in this State, but the latest practice has been to permit such question to be raised under said writ, and this accords with the general principle decided — that the jurisdiction of the Court may be considered under habeas corpus. The cases of In re Stokes,5 S.C. 71; Ex parte Bond, 9 S.C. 80; State v. Lundy, 19 S.C. 601, decide that mere irregularities or errors of law committed by the trial Court in the rendition of a voidable judgment cannot be corrected under habeas corpus, but that the only remedy is by appeal. In Ex parte Williams, 32 S.C. 583,10 S.E., 551, the Court refused to discharge a convict in the penitentiary under proceedings by habeascorpus, the grounds upon which the constitutionality of the statute was assailed being raised in an appeal then pending from the judgment. State v. Williams, 32 S.C. 124,10 S.E., 933. When, however, the judgment is void and not merely voidable, relief may be had by habeas corpus. Exparte Bond, 9 S.C. 80; Ex parte De Hay, 3 S.C. 564. Under habeas corpus this Court will inquire whether the conviction was by a court of competent jurisdiction. State v. Garlington, 56 S.C. 414, 34 S.E., 689. See, also, State v. Higgins, 51 S.C. 51, 28 S.E., 15, 38 L.R.A., 561. If the statute under which a conviction is had is null and void, as in conflict with the Constitution, the Court is without jurisdiction.

In Ex parte Keeler, 45 S.C. 537, 23 S.E., 865, 31 L.R.A., 678, this Court considered the constitutionality of the dispensary law under habeas corpus proceedings, following with approval the rule stated in Andrews v. Swartz,156 U.S. 272, "that a prisoner under conviction and sentence of another court will not be discharged on habeas corpus unless the Court that passed the sentence was so far without jurisdiction that its proceedings must be regarded as void." Among other cases the Court cited Ex parte Siebald,100 U.S. 371, 376, which is a strong case for the view that a conviction founded on a statute which violates the Constitution is void and imprisonment thereunder is illegal and relievable on habeas corpus. In that case the Court said: "An unconstitutional law is void, and is no law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment." This is now the prevailing view in the State Courts as well as the Federal Courts. 21 Cyc., 302; 15 Ency. Law, 2d ed., 204; Church. HabeasCorpus, 2d ed., 383; Stoutenburgh v. Frasier (District of Columbia), 48 L.R.A., 220; Moore v. Wheeler (Ga.),35 S.E., Rep., 116; Commonwealth v. Huntly (Mass.),30 N.E. Rep., 1128; In re Wright (Wy.), 31 Am. St. Rep., 103;State v. McMahon (Minn.), 38 L.R.A., 676; Donnell v.State (Miss.), 12 Am. Rep., 375; Ex parte Rosenblatt (Nev.), 3 Am. St. Rep., 901; Ex parte Smith (Mo.), 58 Am. St. Rep., 576, 33 L.R.A., 606; People v. Durston (N.Y.), 16 Am. St. Rep., 859. See, also, Ex parte Mato,19 Tex. App., 112; Ex parte Burnett, 30 Ala., 461; Exparte Rollins, 80 Va., 314; Brown v. Duffus, 66 Iowa, 193;Ex parte Champ, 9 Ohio, 672.

The writ was so used in Illinois in the case of People v.Turner, 8 Am. Rep., 645, but now under Revised Statutes, 1893, prescribing the cases in which the writ may be used, the Court declined to consider the constitutionality of a statute. People v. Jones, 50 N.E. Rep., 1051. In Indiana the rule is that judgment of conviction is not subject to attack on habeas corpus alleging the unconstitutionality of the statute unless a question under the Federal Constitution is raised, in which the courts of that State follow the rule inEx parte Siebold, supra: Koepke v. Hill, 87 Am. St. Rep., 162. The last mentioned volume contains an elaborate note citing numerous cases on the subject. In Georgia it is stated that if the prisoner on his trial raised the question of invalidity of the statute under which he was convicted and this point is decided against him, it then becomes resjudicata and cannot be reviewed collaterally on habeascorpus. Griffin v. Eaves, 39 S.E. Rep., 913. In the case at bar the point was not raised on trial and the inquiry now involves a question under the Federal Constitution.

It becomes our duty, therefore, to consider the grounds upon which it is claimed that Section 357, Criminal Code, under which petitioner was convicted, is invalid. The statute reads:

"Any laborer working on shares of crop or for wages in money or other valuable consideration, under a verbal or written contract to labor on farm lands, who shall receive advances either in money or supplies and thereafter wilfully and without just cause fail to perform the reasonable service required of him by the terms of the said contract shall be liable to prosecution for a misdemeanor, and on conviction shall be punished by imprisonment for not less than twenty days nor more than thirty days, or to be fined in the sum of not less than twenty-five dollars, or more than one hundred dollars, in the discretion of the Court: Provided, The verbal contract herein referred to shall be witnessed by at least two disinterested witnesses."

The above act was further amended by Act No. 242 of Acts of 1904 (24 Stat., 428) by adding after Section 357 of the Criminal Code a section to be known as Section 357-a, which provides that a conviction of either party mentioned in Sections 355 and 357 for violation of the said contract "shall not operate as a release or discharge of such person from the performance of any part of said contract which is to be performed subsequent to the date of the breach for which such conviction was had."

Little notice need be given to the objection that the statute violates Art. I, Sec. 17, of the Constitution providing that no one should be subject for the same offense to be twice put in jeopardy of life or liberty. The case presents no question concerning a second jeopardy for the same offense. The effect of the amendment to Section 357 is in nowise involved. Even if this amendment should be regarded invalid, it is clearly separable from the original statute and would not afford any ground for declaring a conviction under the original statute void.

It is claimed that the statute violates Art. I, Sec. 24, which declares that "no person shall be imprisoned for debt except in cases of fraud." This objection is met by consideration from either of two standpoints: (1.) If the statute be construed as providing imprisonment for debt the act made penal involves dishonesty and fraud. (2.) The statute does not provide imprisonment for debt. This provision of the Constitution implies that there may be imprisonment for debt in a case of fraud. It is dishonest and fraudulent to obtain advances in money or supplies on the faith of a contract for service and then wilfully and without just cause refuse to render the reasonable service required by the contract. In the case of Ex parte Clark, 45 Am. Dec., 394, 396, the Supreme Court of New Jersey held that a statute allowing imprisonment for debt where the debtor unjustly and unlawfully refuses to apply property under his control to the payment of his debts did not violate a similar clause of the New Jersey Constitution. The Court says: "It is one of the most dishonest things a man can be guilty of, to refuse to pay his honest debts when he has the means to do so. Whatever is dishonest is fraudulent in foroconscientiae and is so treated in a court of equity. Fraud and dishonesty are synonymous terms. The true spirit of the Constitution is this (and it speaks the enlightened and benevolent language of the age in which we life): the honest debtor, who is poor and has nothing to pay with, shall not be imprisoned at the mercy of the creditor. But if the debtor, instead of putting himself upon his honest poverty, seek to elude the jurisdiction and process of the courts; if he conceal, or assign, or remove his property to keep out of the reach of his creditors; or if he have the means in his pocket, or under his control, of paying his debt, and refuses to do so, he is a dishonest and fraudulent man." The Court further said: "Whether the fraud has relation to the time and manner of creating the debt, or to subsequent attempts to defeat the creditor's recovery of it, can make no difference. It is left to the Legislature to say what shall be deemed such fraud as shall make a man liable to imprisonment; and how it shall be proved, in order to justify the arrest of the debtor. The statute, however, does not provide imprisonment for debt.

In the case of State v. Chapman, 56 S.C. 420, 421,34 S.E., 961, this statute was construed and the Court said: "That the offense denounced is not merely the violation of a contract by a laborer employed to work the lands of another, but the offense consists in receiving advances either in money or supplies, and thereafter wilfully and without just cause failing to perform the reasonable service required of him by the terms of the contract. * * * The offense * * * would not be complete if the laborer, before receivingadvances in money or supplies, had wilfully and without just cause failed to perform the reasonable service required of him by the terms of the contract, for the gist of the offense is in failing to do so after he has received advances in money or supplies made to him upon the faith that he would perform the reasonable services required of him by the terms of the contract."

In the case of State v. Easterlin, 61 S.C. 71,39 S.E., 250, this Court expressly decided the point in question, holding that the statute does not violate Art. I, Sec. 24, of the Constitution. The Court, after referring to the construction of the statute in State v. Chapman, supra, said: "The statute as thus construed does not provide imprisonment for debt, but even if it could be so construed, the offense made punishable involves an element of fraud." See, also, Lamar v. State (Ga.), 47 S.E., Rep., 958, and Banks v. State (Ga.), 52 S.E. Rep., 74, 2 L.R.A. (N.S.), 1007, andState v. Norman (N.C.), 14 S.E. Rep., 968.

In State v. Barden, 64 S.C. 206; 41 S.E., 959, Section 377, Criminal Code, declaring it a misdemeanor to sell personal property under mortgage or lien without the consent of the mortgagee or lienee and failure to pay the debt secured by the same within ten days after such sale or disposal, etc., was held not in violation of Art. I, Sec. 24.

There is no imprisonment under the statute in question except as a penalty for what involves moral fraud and which the Legislature has declared to be a criminal act, and it is well settled that the section of the Constitution under consideration has no application to criminal proceedings.State v. Brewer, 38 S.C. 263, 16 S.E., 1001, 19 L.R.A., 362; published also in 37 Am. St. Rep., 750, with annotations. In so far as this question may be deemed to involve the power of the State to declare the conduct described in the statute criminal, it more properly belongs to questions hereinafter considered.

It is further contended that the statute violates Art. I, Sec. 5, of the State Constitution, which provides: "The privileges and immunities of citizens of this State and of the United States shall not be abridged, nor shall any person be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws." In State v. Chapman, supra, the statute was assailed as in violation of Art. I, Sec. 5, as well as Art. I, Sec. 24, and the Court held that none of the grounds upon which the constitutionality of the act was assailed were tenable. As Section 5 of Article I above quoted is very similar in language to the fourteenth amendment of the Federal Constitution, its further consideration will be involved when we come to consider the objection based upon the fourteenth amendment.

We notice the next claim that the statute conflicts with the thirteenth amendment of the Federal Constitution, which provides:

Section 1. "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. "Congress shall have power to enforce this article by appropriate legislation."

Pursuant to the amendment Congress enacted what is known as the Peonage Statutes, Sections 1990 and 5526, Rev. Stat. U.S. Comp. Stat., 1901, pp. 1266, 3715. Section 1990 declares:

"The holding of any person to service or labor under the system known as peonage is abolished and forever prohibited in the Territory of New Mexico, or in any other Territory or State of the United States; and all acts, laws, resolutions, orders, regulations or usages of the Territory of New Mexico, or of any other Territory or State, which have heretofore established, maintained or enforced, or by virtue of which any attempt shall hereafter be made to establish, maintain or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation or otherwise, are declared null and void."

Section 5526. "Every person who holds, arrests, returns or causes to be held, arrested or returned, or in any manner aids in the arrest or return of any person to a condition of peonage, shall be punished," etc.

In the case of Clyatt v. United States,25 Sup. Ct. Rep., 429, the Supreme Court of the United States held that these statutes were within the provisions of the thirteenth amendment; that peonage under the statute may be defined as astatus or condition of compulsory service based upon the indebtedness of the peon to the master, the basal fact being indebtedness.

But Section 1990, above quoted, in so far as it expresses the purpose of the thirteenth amendment, cannot have the effect to annul the State statute under consideration. The Federal statute denounces peonage; the State statute does not sanction peonage. The Supreme Court of Louisiana in the case of State v. Murray, 40 So. Rep., 930, said: "Under the peonage system, a laborer is absolutely bound to his employer. He is absolutely compelled to stay and labor until he has paid his indebtedness. If he attempts to leave, or leaves, he can be restrained or forced to return. The employer can sell his unexpired term to any one who will pay the amount due and assume the obligations of the master." None of these incidents attach to the labor contract statute in question. The statute gives the master no dominion over the body or liberty of the servant. If the servant break his contract and leave, the master cannot coerce his return to employment. The contract is not assignable, and as a rule, with rare exceptions, is limited to the crop year ensuing. If the statute operates to prevent the laborer from violating its provisions, and so restrains him from a tortious and fraudulent breach of his duty under the specified conditions, such restraint results from the law and not from any attempt by the master to assert dominion over the liberty of the servant because of a mere contract of service.

Independent of the peonage statutes of Congress, however, the thirteenth amendment is self-executing and renders null and void any State legislation authorizing involuntary servitude except as a punishment for crime after due conviction.Clyatt v. United States, 25 Sup. Ct. Rep., 429.

Does the statute authorize involuntary servitude? The laborer has the utmost freedom to make or refuse to make farm labor contracts. No account of indebtedness to the landowner existing at the time of the contract can afford the slightest basis upon which the laborer may be coerced against his will into making such contract, nor is any such indebtedness within the contemplation of the statute. After the making of the contract, the laborer is not bound to obtain any advances in money or supplies from the landowner. He may, if he so wills, make his contract so that at the end of each day or week he may receive, not advances on the faith of labor to be performed but compensation for labor already performed, and thus provide for his necessities, or if he is willing and able to do so, he may secure such supplies as he needs from any other source. The statute cannot reach him if he refrains from inducing the landowner to make advances to him on the faith of his contract, even though he break his contract and go to work elsewhere to supply his necessities. If his necessities and his inability to secure advances from any other source compel him to invoke the needed advances from the landowner, such environment of his choice comes not from the statute, but from his lamentable situation which the law does not make and is powerless to unmake. If the laborer's poverty and poor credit elsewhere compel him to seek advances from the landowner after the contract to labor, he is fortunate in so far as the statute tends to induce the landowner to render assistance on the faith of the contract. As already stated, even after the advances are made by the landowner, if the laborer wilfully and without just cause breaks his contract and quits the service of the landowner there is no power under the statute to compel his return to service. His going into service, remaining in service, or returning to service after breach of contract is voluntary. The only involuntary servitude imposed by the statute is as punishment for what the statute declares to be a crime whereof the party has been duly convicted.

In the case of State v. Williams, 32 S.C. 124,10 S.E., 876, the Court in considering Section 2084 of the General Statutes, a labor contract statute like the one under consideration (except in one particular which rendered it unconstitutional, but which was remedied by the present statute), held explicitly that such labor contract statute did not violate Art. I, secs. 1, 2 and 20 of the State Constitution of 1868, which were as follows:

Section 1. "All men are born free and equal; endowed by their Creator with certain inalienable rights; among which are the rights of enjoying and defending their lives and liberties, of acquiring, possessing and protecting property and of seeking and obtaining their safety and happiness.

Sec. 2. "Slavery shall never exist in this State; neither shall involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted."

Sec. 20. "No person shall be imprisoned for debt except in cases of fraud, etc."

The Court, speaking through that able, learned and just-minded jurist, Justice McIver, who afterward adorned this Court as its Chief Justice, said: "If the General Assembly sees proper to make the violation of a particular species of civil contracts a criminal offense, we are unable to discover in the provisions of the Constitution anything which forbids such legislation. No person is required to enter into such a contract unless he chooses to do so; and if he does so he must take the consequences affixed by the law to the violation of a contract into which he has voluntarily entered, just as he subjects himself to the consequences of any other violation of the law. We are unable to discover any feature of ``involuntary servitude' in the matter. Every one who undertakes to serve another in any capacity parts for a time with that absolute liberty which it is claimed that the Constitution secures to all; but as he does so voluntarily, it cannot be properly said that he is deprived of any of his constitutional rights; and if he violates his undertaking, he thereby of his own accord subjects himself to such punishment as the law-making power may have seen fit to impose for such violation." The generality of this language of course is to be construed in the light of the particular acts which the Legislature declared to be criminal, and if applicable to the statute then under consideration, it may well apply to the statute here involved as construed in State v.Chapman and State v. Easterlin, supra.

In the case of State v. Murray, 40 So. Rep., 930, 931, the Supreme Court of Louisiana sustained a statute of that State which provided that whoever violates a contract of labor, upon the faith of which money or goods have been advanced, shall be punished by fine, etc., unless the party had tendered the money or goods obtained. The Court held that the statute did not violate the thirteenth amendment, using in part this language: "If the question were before us of an attempt on the part of the employer, because of his laborer's indebtedness, to compel him to continue to perform his daily task, the result would in all probability be different. But here no such question presents itself. There could not have been the least coercion by the master or employer to compel the continuance of the work. The laborer became the debtor wilfully in order to obtain a small amount without performing any labor whatever. The employer did not deprive him of his liberty, but he deprived his employer of his property. He went off with that which was not his and for which he did not labor, and now his contention is that the statute is unconstitutional and in its constitutionality does not reach even such an act of bad faith as that which he has committed. There can be no law which prohibits the condemnation of such acts. If no man has a right to keep another in involuntary servitude, no man by false words has the right to obtain property of another and keep it as his own."

In view of the foregoing considerations and in the absence of a controlling decision of the Supreme Court of the United States to the contrary, we are bound to hold that the statute is not obnoxious to the thirteenth amendment.

It is finally urged that the statute is in conflict with thefourteenth amendment of the Federal Constitution, which provides:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The clauses of this amendment somewhat overlap each other and a consideration of one involves more or less a consideration of the other. It is undoubtedly true that the "privileges and immunities" of a citizen as well as his "liberty" involve the right, not only to be free from physical restraint, but the right to follow any lawful business or avocation in life and to make all proper contracts in furtherance thereof. Butchers' Union Co. v. Crescent Co.,111 U.S. 757; Allgeyer v. Louisiana, 165 U.S. 578. It is equally true that labor is property and the right to contract for labor is a property right. The statute in no sense interferes with the laborer's right to pursue his calling. It does not obstruct his freedom of contract. So far as the statute affects these matters, it promotes the industrious pursuit of the laborer's calling and vitalizes his reasonable contracts to that end. Freedom and liberty in the pursuit of a calling and in making necessary contracts is one thing; license to break contracts and quit the pledged work tortiously and fraudulently after acquiring another's property on the faith of the contract is quite another thing. The general right of a laborer to contract with whom he will and to terminate such contract at will, subject to civil liability for breach, is conceded. But this general statement is subject to modification. Freedom of contract is not absolute and unlimited but is subject to modification. Freedom of contract is not absolute and unlimited but is subject to such restrictions as the Legislature may impose under the police power of the State. Johnson v. Spartan Mills, 68 S.C. 339,47 S.E., 695; Rose v. Harlee, 69 S.C. 527, 48 S.E., 541.

In Barbier v. Connolly, 113 U.S. 27, the Supreme Court of the United States declared that the fourteenth amendment was not designed "to interfere with the power of the State, sometimes termed its police power, to prescribe the regulations to promote the health, peace, morals, education and good order of the people and to legislate so as to increase the industries of the State, develop its resources and add to its wealth and prosperity." In Wilkerson v.Rohrer, 11 Sup. Ct. Rep., 865, 866, Chief Justice Fuller, speaking for the Court, declared: "The power of the State to impose restraints and burdens upon persons and property in conservation and promotion of the public health, good order and prosperity is a power originally and always belonging to the States, not surrendered to them by the general government nor directly restrained by the Constitution of the United States and essentially exclusive." This, of course, does not mean that State legislation under the mere guise of police regulation can destroy a right secured by the Federal Constitution, but it means that legislation relating to a subject properly within the police power and reasonably designed to effectuate such public purpose does not infringe upon the fourteenth amendment. The fundamental inquiry then is whether the legislation is fairly within the police power of the State.

The statute is presumptively valid. Whoever seeks to overthrow it must show beyond a reasonable doubt that it violates some constitutional inhibition. The power of the State to create and punish public offenses is undoubted. There is high warrant for saying that the State may declare an act innocent in itself to be criminal. People v. West, (N.Y.), 12 N.E. Rep., 610; Lawton v. Steele,14 Sup. Ct. Rep., 499, 503. In the last mentioned case the Court said: "The power of the Legislature to declare that which is perfectly innocent in itself to be unlawful is beyond question, and in such case the Legislature may annex to the prohibited act all the incidents of a criminal offense including the destruction of property denounced by it as a public nuisance." This, we suppose, is true when the act, though involving no moral turpitude in itself, may yet by its prevalence and tendency under peculiar circumstances injuriously affect the public. But the act declared to be criminal in the statute in question is not innocent in itself; it involves moral turpitude, it involves dishonesty and fraud as already pointed out, and the right of the Legislature to make such an act punishable as a crime will hardly admit of serious doubt. The statute is not unconstitutional because it fails to expressly make a fraudulent intent a necessary ingredient of the crime. People v. West, supra. The conduct denounced by the statute could, however, be seldom committed except with a fraudulent intent.

In Lamar v. State (Ga.), 47 S.E. Rep., 958, the Court, sustaining similar legislation, said: "If the Act prescribes a punishment for a simple violation of a contractual obligation, it is beyond the power of the General Assembly. But if its purpose is to punish for fraudulent and deceitful practices, it is valid even though the fraud and deceit may arise from the failure to comply with a contractual engagement. * * * The right of the law-making power to declare fraudulent practices a crime does not seem to have ever been seriously questioned."

The statute of Alabama which was pronounced unconstitutional in Toney v. State, 141 Ala., 120, 109 Am. S. Rep., 23, made it a misdemeanor for a laborer under contract to work farm lands to break his contract and enter into another contract with a different person without the consent of his employer and without sufficient excuse and without giving notice of the said contract to the person with whom he makes the new one. The act was condemned because of the restrictions it purports to place on the right to make contracts for employment. The South Carolina statute places no restriction on the right of the laborer to make a similar contract of employment with another after the breach of the former contract. It merely punishes for a fraudulent breach of the first contract after obtaining advances on the faith of it. The distinction is wide and vital, as indicated by the Louisiana and Georgia cases already cited. On the other hand, in State v. Thomas,114 Ala., 77, 113 Am. St. Rep., 17, another Alabama statute, not limited to farm labor contracts, but providing that a failure or refusal of any person who has entered into the contract of service and obtained any money or property thereby to perform such service or refund such money or property without just cause, shall be prima facie evidence of an intent to defraud, was held to be constitutional. The principle of this last-mentioned case supports the South Carolina statute, unless the limitation of the legislation to farm labor contracts is an unlawful discrimination, a matter to be now considered.

Legislation is not unequal nor discriminatory in the sense of the equality clause of the Constitution, merely because it is special or limited to a particular class. The decisions of the United States Supreme Court establish that the Legislature has power to make a classification of persons or property for public purposes, provided such classification is not arbitrary and bears reasonable relation to the purpose to be effectuated, and that the equality clause is not violated when all within the designated class are treated alike,Barbier v. Connolly, 113 U.S. 27; Soon Hing v. Crowley,113 U.S. 703, 709.

In the last-mentioned case the Court said: "The discriminations which are open to objection are those where persons engaged in the same business are subjected to different restrictions or are held entitled to different privileges under the same conditions." In Railway Co. v.Mackey, 127 U.S. 205, the Court sustained the constitutionality of a Kansas statute imposing upon railroad corporations future liability for damages to employees by negligence of their fellow-servants, notwithstanding no such liability existed against any other person or corporation, because the Court considered that the legislation met a particular necessity and all railroad corporations without distinction were made subject to this same liability. This case shows pointedly that a classification may be reasonable and yet not include all engaged in a general business, as the business of carrying freight and passengers, but may be limited to those who carry freight and passengers in a particular way, as railroads, to the exclusion of all other common carriers.

If such a classification is permissible, is not one which would place farm labor contracts in a class as distinct from other labor contracts also permissible? We are not unmindful of the rule that quasi public corporations, such as railroads, being the creatures of statute, may the more easily be subjected to certain statutory regulations, but such a consideration was not controlling in Railway Co. v. Mackey, supra, for other corporate common carriers whose employees may be injured by the negligence of a fellow-servant, were not made subject to the regulations. So inErb, Receiver, v. Morasch, 20 Sup. Ct. Rep., 820, it was held that an exception of a dummy railroad operated by steam, or an electric railroad, in an ordinance limiting the speed of railroad trains within the city, does not make an unreasonable classification in denial of the equal protection of the laws. Responding to the suggestion that there was testimony that the operation of the street railroad was in fact more dangerous than operation of the railroad in the hands of plaintiff receiver, the Court said: "It is not a question to be settled by the opinion of witnesses and the verdict of a jury upon the question whether one railroad in its operation is more dangerous than another. All that is necessary to uphold the ordinance is that there is a difference, and that existing, it is for the city council to determine whether separate regulations shall be applied to the two. * * * Given the fact of a difference, it is part of the legislative power to determine what difference there shall be in the prescribed legislation."

In Missouri, etc., R.R. Co. v. May, 24 Sup. Ct. Rep., 638, the Court sustained a Texas statute imposing a penalty in favor of contiguous landowners against railway companies for permitting Johnson grass or Russian thistle to mature and go to seed upon their road, although no such penalty was imposed against others who might communicate the seeds of such plants to the railroad right of way, nor against other carriers, nor as between contiguous landowners. The Court answered all such suggestions by saying: "When a State Legislature has declared that, in its opinion, policy requires a certain measure, its action should not be disturbed by the courts under the fourteenth amendment, unless they can see clearly that there is no fair reason for the law that would not require with equal force its extension to others whom it leaves untouched. * * * Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts."

If the purpose of the statute has been construed by the State Court to be merely to compel the payment of indebtedness, there would be good ground for holding it an unreasonable classification to make the regulation apply to only one class of debtors. Gulf, etc., Ry. v. Ellis, 165 U.S. 157;17 Sup. Ct. Rep., 257. But, as has been shown, such is not the purpose of the statute, and it is usual under the principle of comity for the Federal Courts to accept the settled construction placed upon a statute by the State Court, except in matters of commercial law and general jurisprudence. So that the Federal question presented is whether the statute as construed by the State Court violates the Federal Constitution.

In the case of Connolly v. Union Sewer Pipe Co.,22 Sup. Ct. Rep., 431, the Court declared that the Illinois trust act violated the fourteenth amendment in exempting agricultural products and live stock in the hands of the producer or raiser from its provisions. Under that statute, all, except the producers of the agricultural commodities and raisers of live stock, who combined their capital, skill or acts for any of the purposes named in the act to destroy competition and control prices, could be punished as criminals, while agriculturists and live-stock raisers in respect of their products or live stock in hand, were exempted from the operation of the statute and might combine and do that which, if done by others, would be a crime against the State. It is not hard to see that this would be an unreasonable classification and exemption in a statute designed to prevent and punish combinations in restraint of trade in agricultural products and live stock as well as other commodities. In view of the purpose of the statute, the mere distinction between agricultural products and live stock in the hands of the producer or raiser and the same articles of a domestic trade open to all in the hands of the purchaser from the producer or raiser, seems arbitrary. Our statute is clearly distinguishable from the statute considered in the Connolly case. While the right to make contracts for farm labor is open to all, the right to secure advances on the faith of such contracts and then wilfully and without cause refuse to restore the property in the manner required by the reasonable terms of the contract is not a right open to all; indeed, it is lawfully open to none. Such conduct violates the maxim of the common and civil law that one must so use his own as not to injure another. It involves a wilful trespass upon the rights of another. It may be penalized by punitive damages in a civil remedy, or if the Legislature should deem such redress utterly futile and see fit to punish it criminally, we see no constitutional restraint upon such action.

In Halter v. Nebraska, 27 Sup. Ct. Rep., 419, the Court held that it was lawful for the State of Nebraska to declare it a misdemeanor to use representations of the national flag upon articles of merchandise for advertising purposes, notwithstanding an exception was made in favor of newspapers, periodicals, books, pamphlets, etc., on which should be printed representations of the national flag disconnected from any advertisement. In distinguishing the Halter case from the Connolly case, the Court stressed the fact that in the Connolly case, the Court stressed the fact that in the Connolly case domestic trade in agricultural products and live stock was "open to all, subject to such regulations applicable alike to all in like conditions as the State may legally prescribe," whereas in the Halter case it was considered that no one had the right to use the country's flag merely for advertising purposes.

In Holden v. Hardy, 18 Sup. Ct. Rep., 385, the United States Supreme Court sustained a statute of Utah forbidding under penalty the employment of workingmen for more than eight hours per day in mines and in the smelting, reduction, refining of ore and metal; in Commonwealth v.Hamilton Mfg. Co., 120 Mass. 383, the Massachusetts Supreme Court sustained a statute prohibiting the employment of women in any manufacturing establishment for more than sixty hours per week; and in People v. Havnor,43 N.E. Rep., 541, the New York Supreme Court sustained a statute making it a misdemeanor for a barber to carry on his business on Sunday but excepting from its operation the keeping open of barber shops in New York City and Saratoga Springs on that day up to 1 o'clock P.M. Many other illustrations might be given to show that it is not essential to valid police regulations concerning labor contracts that they must apply to all laborers, but that the regulations may apply only to a more restricted class of laborers. "The question in each case," says the Court in Holden v. Hardy, supra, "is whether the Legislature has adopted the statute in the exercise of a reasonable discretion or whether its action be a mere excuse for an unjust discrimination, or the oppression or spoliation of a particular class."

South Carolina is essentially an agricultural State. Upon this industry the public welfare depends more largely than upon any other. While every business and industry needs assurance of a steady supply of labor for its successful prosecution, this need presses more keenly upon the agriculturist than upon any other because of distinct and peculiar conditions. With industries conducted generally in populous centers and within doors, the all-year employment, the seemingly more remunerative wages, the brief and regular intervals of wage payment, the social and school advantages, the more comfortable surroundings, possibly tend to induce for them a more steady and reliable supply of laborers. While it is quite probable that advances may to some extent be made to such laborers and also that some of them may break contracts and quit employment without cause after such advances, yet it cannot be affirmed beyond a reasonable doubt that the Legislature had no ground for supposing that the regulation in question should apply to farm contracts only, as a remedy for an evil peculiarly affecting the agricultural industry. A prevailing custom between landowner and laborer is to enter into farm labor contracts near the beginning of the year. The landowner, isolated upon his farm, as a prudent man wants to know what labor he may count upon in the production of the crops that year so as to make his arrangements accordingly. He must adjust his operations with the seasons and the uncertain elements. The loss resulting from the failure of a single day's work at critical times can seldom be recovered.

Usually when the contract is made the severe winter is on. The laborer is supplied with a house and has privilege of taking firewood, these generally without charge, but work is slack then upon the farm and the laborer and his family often need food and clothing, which he has not earned and for which he cannot pay the cash. Then he generally secures advances from the landowner on the faith of his contract.

A very prevalent form of labor contract is the snare system, in which the landowner furnishes land, stock, tools, seed and fertilizers in whole or in part, and the laborer undertakes to supply all the necessary labor, for which he is to receive an agreed portion, frequently one-half, of the crop. Or the contract may be for stipulated wages in money payable at the end of the month or year or at such time as may be agreed upon. When the busy work-time on the farm arrives, the laborer is generally in debt to the landowner for advances secured on the faith that he will perform the stipulated work. It is then the dishonest laborer repudiates his obligation, and not only fraudulently deprives the owner of his property but frequently brings disaster on the landowner's farming business. The frequency of such conduct and its evil influence on the farming industry called for some remedy. The utter futility of mere civil remedies against the average farm laborer and the necessity for some remedy no doubt prompted the act in question. We think the legislation lies fairly within the discretion of the Legislature under the police power; and that it is not a violation of the fourteenth amendment because it penalizes certain conduct of farm laborers as distinguished from other laborers.

Nor is it discriminating because it does not also provide punishment for the landowner. It punishes alike all who may be guilty of the offense described, and if the landowner is not included it is because in the nature of things he could not be guilty of the specific conduct declared to be criminal. The fact that the landowner may do some wrong to the laborer equally deserving of punishment should the Legislature see fit to make it penal, is not at all relevant to the question as to the power of the Legislature to make the certain conduct of the laborer criminal. State v. Chapman,56 S.C. 420, 34 S.E., 961.

For these reasons I dissent from the opinion of the majority of the Court.

CIRCUIT JUDGES KLUGH, PRINCE and HYDRICK concurin this opinion.