(108 A.) formance of a public duty, and all the re- [ trustworthy, you shall be responsible for his spondent's criticism of said section 5 as an ignorance or negligence." " attempt to interfere with its right to con The statute was held to be unconstitu tract freely with its servant is without point tional, so far as it purported to make the or pertinency. mine owner liable for the negligence of the certified foreman. Such One of the tests which the respondent suggests to establish that the fire inspector is The respondent contends that, if the prohis servant is that the respondent would be responsible for the result of the inspector's visions of section 5 are held to be valid, such negligence. A master may be compelled to determination will require us to approve the respond in damages for the negligent act of constitutional soundness of all legislation his servant, but the theater manager would which may assume to fix by statute the not be liable for the negligent act of the fire-wages of private employes, when the perguard in the performance of his duties, be-formance of their duties has any relation to cause the manager can not direct or control public safety, as, for example, the wages of the acts of the fireguard. The board of fire locomotive engineers, motormen, chauffeurs commissioners has certified to the competency and the like, and finally that we must apof the fireguard. The fireguard cannot be prove legislative regulation of the wages of discharged by the manager without permis- any class of workmen with which the Gension from the board of fire commissioners. eral Assembly may see fit to deal. The manager is not the master and the fire- argument is clearly specious. All such priguard is not a servant. See Durkin v. Kings-vate employés and workmen are servants of ton Coal Co. et al., 171 Pa. 193, 33 Atl. 237, a private master, performing such master's 29 L. R. A. 808, 50 Am. St. Rep. 801, which business in accordance with the master's diwas an action of negligence for injury to a coal miner brought against the mine owner. The statute provided that no person "shall be permitted to act as mine foreman" until after examination by an examining board created by the state and a certification as to qualification by the mine inspector appointed by the Governor. The statute required all mine owners and operators to "employ" a certified mine foreman under penalty of a fine of $25 per day. The duties of the mine foreman are prescribed by the act, and the owners or operators of the mines cannot interfere with his duties. The act provides that: "For any injury to person or property occasioned by any violation of this act or any failure to comply with its provisions by any * * * mine foreman a right of action shall accrue to the party injured against said owner or operator for any direct damages he may have sustained thereby." Act Pa. June 2, 1891 (P. L. 207) art. 17, § 8. The court, holding that the mine owner was not liable in spite of the statute making him liable for the negligence of the certified mine foreman, said: "This statute, regarded as a whole, is an extraordinary piece of legislation. Through it the lawmakers say to the mine owner: 'You cannot be trusted to manage your own business. Left to yourself, you will not properly care for your own employés. We will determine what you shall do. In order to make certain that our directions are obeyed, we will set a mine foreman over your mines with authority to direct the manner in which your operations shall be conducted, and what precautions shall be taken for the safety of your employés. You shall take for this position a man whom we certify to as competent. You shall pay him his salary. What he orders done in your mines you shall pay for. If, notwithstanding our certificate, he turns out to be incompetent or un rection. That the safety of the public frequently depends upon the proper performance of their duties is merely an incident of their occupation. A fire inspector stationed in a theater is not engaged in the service of a private master. He is performing the duties prescribed by law under the direction of a public board. His duty is to the public. The public is the master, and it is for the public, as represented by the lawmaking power of the state, to fix his compensation and to regulate the terms of his employment. No principle is better settled than that compensation for the performance of public duties may be fixed by law, whether such compensation is paid from the public treasury or charged against the business in relation to which it is to be performed. The burden upon the theater manager consists in being obliged to pay the compensation of the fireman or fireguard stationed in his theater; it is a matter of no consequence to him, and it has no bearing upon the reasonableness of the charge or the constitu tionality of the act whether he be required to pay said compensation to the city, and the city pay the fireman or inspector, or that the manager be directed to pay the fireman or inspector directly. The manner of payment is a matter of detail; the vital consideration is whether such manager should be compelled to pay the charge at all. There is a long line of decisions holding that, whenever any business or line of business affects the public health, safety, morals, or welfare, thereby becoming a proper subject for police regulation, the fees and charges for inspection or otherwise for protecting the public against the dangers incident to such business may be imposed upon the business itself, regardless of whether any special franchise or privilege had been conferred upon such business, or that it was one affected with a public interest, or was one merely of private [ employés of the defendant. The court held interest. that the act was not in violation of the Fourteenth Amendment. In Willis v. Standard Oil Co., 50 Minn. 290, 52 N. W. 652, it was held that a statute requiring illuminating oil which was held for sale to be first inspected, and fixing the fees for inspection, was a valid exercise of the police power, and the court said: "On its face the act is a bona fide police regulation, a proper inspection law, and not a law levying a tax. What is a reasonable fee for inspection under such laws must depend largely upon the sound discretion of the Legislature, having reference to all the circumstances and necessities of the case; and, unless it is manifestly unreasonable in view of the purpose of the law as a police regulation, the court will not adjudge it a tax." In People v. Harper, 91 Ill. 357, the court held an act constitutional which created a board with powers to fix the fees for inspecting grain. In Louisiana State Board v. Standard Oil Co., 107 La. 713, 31 South. 1015, the court held that the act which required the plaintiff board to inspect coal oil through- In Consolidated Coal Co. v. People, 186 Ill. 134, 57 N. E. 880, 56 L. R. A. 266, the court held "that under the police power the Legislature has the right to provide for the inspection of mines, and also that it has the right to place the burden of the expense of such inspection upon the mine owners," and that a law was not in violation of the Fourteenth Amendment of the Constitution of the United States, as one denying equal protection of the laws, or taking property without due process of law, because it did not lay down proper rules for its impartial execution in fixing fees to be charged upon a basis of the number of men employed, size of the mine, or "some definite circumstance or condition," and fixing a reasonable number of inspections to be made annually, by which the exercise of an arbitrary discretion might be avoided. The inspection fee was fixed at not less than $6 nor more than $10 a visit. By statute it became the inspector's duty to inspect "as often as he may deem necessary and proper" and "at least four times a year." In City of New Orleans v. Kee, 107 La. 762, 31 South. 1014, the court held an ordinance constitutional which provided for inspection of laundries and required the laundry to pay the inspection fee. In Morgan's Steamship Co. v. Louisiana Board of Health, 118 U. S. 455, 6 Sup. Ct. 1114, 30 L. Ed. 237, a statute was held to be valid which required steamship vessels to submit to inspection and pay a fee therefor. Phila. (Pa.) 534; Davis Coal Co. v. Polland, 158 Ind. 607, 62 N. E. 492, 92 Am. St. Rep. 319. A somewhat novel case of a law aiming to protect the public against the dangers incident to a business is considered in State In Louisville & Nashville R. R. Co. v. v. Cassidy, 22 Minn. 312, 21 Am. Rep. 765. Baldwin, 85 Ala. 619, 5 South. 311, 7 L. R. An act making it an offense to sell spirituous A. 266, an act made it a misdemeanor for liquors without having a special license (in any railroad to have in its employ any engi- addition to all other licenses), for which a neer, fireman, brakeman, conductor, gateman, fee of $10 must be paid, "to establish a fund signalman, etc., who did not "possess a cer- for the foundation and maintenance of an tificate of fitness therefor in so far as color asylum for inebriates," was held to be a blindness and visual powers are concerned," valid exercise of the police power. In Noble issued by a medical examiner provided for State Bank v. Haskell, 219 U. S. 104, 31 Sup. by the act. The railroad company was Ct. 186, 55 L. Ed. 112, 32 L. R. A. (N. S.) obliged to pay the examination fee, fixed by 1062, Ann. Cas. 1912A, 487, the court conthe act at $3. The plaintiff brought suit to sidered a statute of Oklahoma which prorecover from the railroad his fees for exam- vided for a levy upon all banks existing (108 A.) of a percentage of each bank's average de- penalty for selling fish not inspected and posits to pay the loss arising to depositors branded. Chapter 161 provides for the inin banks which might become insolvent. The spection and survey of lumber shipped into court sustained the constitutionality of this this state, fixes the fees, to be paid by the statute, and held that, when the Legislature owner and retained by the inspector, and of Oklahoma declared that said regulation was a necessary safeguard to banking, the court cannot say that it is wrong. Upon petition for rehearing the court said (219 U. S. at page 580, 31 Sup. Ct. 300, 55 L. Ed. 341): "We fully understand the practical importance of the question, and the very powerful argument that can be made against the wisdom of the legislation; but on this point we have nothing to say, as it is not our concern." imposes a penalty for dealing in such lumber which has not been inspected and surveyed. Chapter 162 provides for the inspection of hoops, fixes the fees to be paid by the owner and retained by the inspector, and imposes a penalty for shipping hoops which have not been inspected. Chapter 163 provides for the inspection of scythe stones, fixes the fees, to be paid by the owner and retained by the inspector, and imposes a penalty for selling or exporting sythe stones which have not It is no just criticism of the amount of been inspected. Chapter 164 provides for the compensation fixed by law for public office inspection of saleratus, soda, and cream of or public service that perhaps some person tarter, fixing a fee for inspection and certifmay be found in the community who will un-icate of analysis, which is to be paid by the dertake to perform it for less. The provi- dealer and retained by the inspector, and sions of section 5, wherein the General As- imposes a penalty for selling such articles sembly in its legislative discretion has fixed when impure. Chapter 165 provides for the $3 per day as the compensation of a fire- measure and sale of grain, meal, and salt, guard, cannot be regarded as unconstitution- fixes the fees, to be paid by the owner and real because the respondent, before the passage tained by the official measurer, and imposes of the act, was able to make an arrangement a penalty for the sale of such articles from a with Mr. Gallagher to act for $2 per day. vessel or railroad car in quantities greater Such a principle, if adopted by this court, than 25 bushels without having the same would lead to a declaration of the unconsti- duly measured and duly certified by the tutionality of a great number of acts of the official measurer. Chapter 166 provides that General Assembly in which a fee is fixed or "all cotton sold in this state, unless specially compensation provided for the performance agreed, shall be weighed" by the official of some public act. weigher. Said chapter fixes the fees, which are to be paid by the owner and retained by the weigher. Chapter 170 provides for the inspection, sale, and keeping of inflammable and explosive fluids, fixes the fees, to be We have in this state many statutes providing for inspection and inspection fees. See the following chapters of General Laws 1909: Chapter 220 requires the insurance commissioner to examine insurance com panies, and the insurance company to pay paid by the dealer and retained by the inthe commissioner the expense of such exam- spector, and imposes penalties for keeping ination. Chapter 157 provides for the in- or selling certain petroleum oils and products spection and branding of beef and pork, and fixes the fees which are to be paid by the dealer and retained by the inspector, and imposes penalties in certain cases for sale without inspection. Said chapter 157 and section 6 of chapter 30 were amended by chapter 1026 of the Public Laws of 1914, by fixing a salary for the state inspector, and providing that the inspection fees should be turned over to the general treasurer; but the cities and towns may still elect inspectors of beef and pork and "provide for their compensation by salary or fees." Chapter 158 provides for the inspection of hides and leather, and fixes the inspector's fees, which are to be paid by the owner and retained by the inspector. Chapter 159 provides for the inspection of lime, fixes the inspection fees, to be paid by the burner of the lime and retained by the inspector, and imposes a penalty for selling or exporting lime not branded by the inspector. Chapter 160 provides for the inspection of fish, fixes the in- Perhaps the market man, like the theater spection fees to be paid by the owner and manager, would prefer to have his business retained by the inspector, and imposes a inspected and regulated by his own servant. thereof which have not been inspected. Chapter 171 provides for weighing of neat cattle, fixes the fees for weighing, one-half of which shall be paid by the seller and onehalf by the buyer, to be retained by the town weigher and imposes a penalty on persons "slaughtering or weighing any neat cattle, and being obliged to account for the same to the owner or seller thereof as aforesaid, who shall not weigh and account" for all "parts of such cattle denominated weighable as aforesaid." Chapter 194 provides for sealing of weights and measures, fixes the fees, which are to be paid by the owner and retained by the official sealer, and imposes a penalty for using weights or measures which have not been sealed. Chapter 195 provides for gauging, fixes the fees, to be paid by the owner and retained by the gauger, and imposes a penalty for selling commodities by gauge or gauge marks not made by an official gauger. We have no doubt that the market man In McLean v. Arkansas, 211 U. S. 547, could save a considerable expense by having 29 Sup. Ct. 208, 53 L. Ed. 315, the court said: his large number of weights and measures sealed by one of his employés possessing the requisite skill. It is probable that such market man could arrange with his employé to do the work for a compensation much less than the statutory fee of the public sealer. That fact, however, has no bearing upon the question of the constitutionality of the statute relating to the sealing of weights and measures. It is the policy of the law to surround a public official with a degree of independence, the better to enable him faithfully to perform his duties to the public. My conclusion that section 5 provides for the performance by the fire inspector of a public duty, and not of a private service for the theater manager, is really determinative of the questions before us, because, as I have already said, it is undoubtedly within the power of the General Assembly to fix the compensation and regulate the employment of this public inspector. I will, however, consider at length the contention of the reconsider at length the contention of the respondent that the provisions fixing the compensation of this public servant at $3 per day, providing that his salary shall not be reduced by the theater manager, and that he may not be discharged by the theater manager are entirely arbitrary, and have no reasonable relation to the protection of audiences in theaters in the city of Provi dence. "The Legislature, being familiar with local conditions, is, primarily, the judge of the necessity of such enactments. The mere fact that a court may differ with the Legislature in its views of public policy, or that judges may hold views inconsistent with the propriety of the legislation in question, affords no ground for judicial interference, unless the act in question islative power." is unmistakably and palpably in excess of leg Courts, as evidenced by their opinions in many cases, have scrutinized very carefully the claims that legislation in question before them was within the scope of the police power. When, however, it has been determined that the matter as to which regulation has been provided did have such a relation to the public health, safety, morals, and welfare as to present a proper occasion for the exercise of the police power, then it has been recognized that a very wide discretion rests in the Legislature in determining the policy or the methods to be employed in its exercise. In Holden v. Hardy, 169 U. S. 366, at page 397, 18 Sup. Ct. 383, 390 (42 L. Ed. 780) the court said: "Though reasonable doubts may exist as to the power of the Legislature to pass a law, or as to whether the law is calculated or adapted to promote the health, safety, or comfort of the people, or to secure good order, or promote the general welfare, we must resolve them in favor of the right of that department of government." For the proper understanding of the cases In speaking of the limits of judicial disin which a party has questioned the consti-cretion the court in Wilson v. New, 243 U. S. tutionality of legislation purporting to be en- 332, at page 359, 37 Sup. Ct. 298, 306 (61 L. acted under the police power, the distinction Ed. 755, L. R. A. 1917E, 938, Ann. Cas. between the question of legislative power 1918A, 1024), said: and the matter of legislative policy must always be borne in mind. Mr. Justice Hughes, in Chicago, etc., v. McGuire, 219 U. S. at page 569, 31 Sup. Ct. 263, 55 L. Ed. 328, says: "The principle involved in these decisions is that, where the legislative action is arbitrary and has no reasonable relation to a purpose which it is competent for government to effect, the Legislature transcends the limits of its power in interfering with liberty of contract; but where there is reasonable relation to an object within the governmental authority, the exercise of the legislative discretion is not subject to judicial review. The scope of judicial inquiry in deciding the question of power is not to be confused with the scope of legislative considerations in dealing with the matter of policy. Whether the enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired result, whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner, are matters for the judgment of the Legislature, and the earnest conflict of serious opinion does not suffice to bring them within the range of judicial "While it is a truism to say that the duty to enforce the Constitution is paramount and abiding, it is also true that the very highest of judicial duties is to give effect to the legislative will, and in doing so to scrupulously abstain from permitting subjects which are exclusively within the field of legislative discretion to influence our opinion or to control judgment." This principle has been adopted by this court without a contrary opinion down to the In East Shore Land Co. v. present time. Peckham, 33 R. I. 541, at page 548, 82 Atl. 487, 491, this court said: "All statutes are presumed to be valid and constitutional, and the burden of proving the unconstitutionality of any statute is upon the party raising the question; furthermore, the rule is that he must prove it beyond a reasonable doubt." In State v. Kofines, 33 R. I. 211, at page 216, 80 Atl. 432, 435 (Ann. Cas. 1913C, 1120), the court said: "A reasonable doubt is to be resolved in fa (108 A.) tained. Cooley on Constitutional Limitations, [ance in service depended upon the continued p. 252, and cases cited. "Before an act is de- approval of the board, and who should not clared to be unconstitutional, it should clearly be discharged by said licensee, except with appear that it cannot be supported by any rea- the prior approval of said board. The next sonable intendment or allowable presumption." People v. Supervisors of Orange, 17 N. Y. 235, when by chapter 1718 of the Public Laws it change came in the January session, 1919, was provided that the proprietor of a theater in Newport should pay $3 per day, instead of $2 per day, to the city for the services of a fireman stationed in a theater. By the. provisions of chapter 1780, Public Laws 1919, section 5 was again amended to the form in which it now stands, the essential parts of which have been quoted above. 241.' ***Therefore it is incumbent upon the respondents to satisfy this court beyond all reasonable doubt that the act in question is unconstitutional in the particulars complained of." The opinion of this court in Cleveland v. Tripp, 13 R. I. 50, at page 65, was as fol lows: "Our conclusion is that the complainants are not entitled to relief. We have reached this conclusion, not without much hesitation, but in obedience to the rule that a statute duly enacted, however questionable it may be in point of constitutionality, is not to be pronounced void for unconstitutionality until this court is clearly convinced of it." In the Opinion to the Governor, 24 R. I. cases cited above. 603, 606, 54 Atl. 602, 603, this court said: "Both this court in State v. Peckham, 3 R. I. 289, and the Supreme Court of the United States in Munn v. People, 94 U. S. 113 [24 L. Ed. 771, have declared that the Legislature is the exclusive judge of the propriety and necessity of legislative interference within the scope of legislative power. If a state of facts could exist which would justify legislation, it is to be presumed that it did exist." We will now consider the policy or the method adopted by the General Assembly in section 5 for the purpose of guarding the safety of audiences in theaters in the city of Providence. It would tend to a better understanding of this policy of the General Assembly if we should note the historical development in this state of legislation of this character. By section 5, c. 131, Gen. Laws 1909, it was provided that the board of fire commissioners, or, in case there was no such board, the chief of the fire department, in every city should station in every theater during the time any audience was present therein a fireman, and the licensee of the theater should pay such city for the attendance of said fireman $2 for every day during which a performance should be given in such theater. By reason of the great increase in the number of theaters in the city of Providence the demands upon the fire department by reason of the assignment of firemen for service in the theaters became so great that by chapter 1366, Pub. Laws 1916, it was provided that, instead of a fireman being stationed by the board of fire commissioners in each theater in the city of Providence, the licensee of such theater should "employ" a suitable person, approved by said board, who should be stationed in such theater, who should there perform the duties prescribed by said board, and who should have no other duties, whose continu It cannot be questioned that by the original provisions of section 5 a city fireman stationed in a theater was not the servant of the theater manager, but was a person performing a public function, and for that public service it was within the power of the Legislature to compel the theater manager to pay the city. This is in accord with the cases cited above. For the reasons that we have named the city was relieved of the duty of assigning members of the fire department for service in theaters, and the theater manager was permitted to select a person who should act as a fireguard in his theater but with great particularity the duties of the fireguard or inspector so selected are designated and his relations to the fire board are defined. It is clear that the Legislature intended that in every respect, save in the method of selection, the fireguard should exactly take the place of the city fireman. Everything that the city fireman had formerly done the fireguard must do; and the exclusive oversight and control which the board of fire commissioners had over its fireman was continued in it over the fireguard selected by the theater manager. If, instead of permitting the theater manager to select a person for the approval of the board, the statute had provided that the theater manager should choose for service in his theater one from a body of theater fire inspectors first selected and established by the board of fire commissioners, would the situation have been different? been different? In either case the manner of selection would be an immaterial circumstance. The essential matter in determining the legal status of the fireguard in his relations to the theater manager is the nature of his service. It was unmistakably public service formerly performed by the public fireman. The inspector is exercising a public function and discharging a public duty. There can be no question that for that public duty the Legislature might fix the compensation. At first in its discretion the Legislature did not fix the compensation, but left it to such arrangement as should be made between the theater manager and the inspector. Later in its discretion the Legislature saw fit to name the minimum amount of compensation |