RATHBUN, J. (dissenting). I am obliged to dissent from the opinion of the majority, and have, as I deem it my duty to do, without attempting to analyze said opinion in detail, here set out at length my opinion as to the legal principles involved in the constitutional question before us. I do this for the reason that the majority opinion appears to me to completely disregard the essential facts involved in the case, fails to make application of very elementary principles of the common law of contracts, and particularly because said opinion adopts a novel and surprising position, opposed to the uniform decisions of this court, and, so far as I can ascertain, to the decisions of all courts, as to the relative powers of the legislative and judicial departments of government.

The above-entitled proceeding is a criminal complaint, preferred against said respondent corporation in the district court of the Sixth judicial district. The matter is before us upon the certification of a constitutional question. Said complaint charges that the respondent

"being the person and corporation holding the license pertaining to the Bijou Theater, unlawfully did neglect and refuse to pay to Robert S. Gallagher, a suitable person approved by the board of fire commissioners of said Providence,

(108 A.)

dence impairs the obligation of a contract existing between the defendant and Robert S. Gallagher, and is in violation of article 1, section 10, of the Constitution of the United States.

The section in question is plainly an attempt on the part of the General Assembly, in the exercise of its police power, to legislate for the safety and welfare of the people. As was stated by this court in Opinion to the Governor, 24 R. I. 603, 605, 54 Atl. 602, 603:

perform such duties as from time to time may | against fire in a theater in the city of Provibe prescribed by said chief of the fire department to guard against fire, and to protect life and property in case of fire therein, and in case said chief of the fire department at any time shall withdraw his approval of any such person, another person approved by said chief of the fire department shall be employed in his stead; and no such employé approved as aforesaid shall be discharged by such licensee or licensees from his said employment except with the prior approval of said chief; and said chief from time to time may prescribe a distinctive uniform and badge to be worn by every such employé during the time he is performing such duties; and said chief from time to time may assign any officers or members of the fire department thereof to inspect such theaters and see whether such persons are properly performing their said duties therein, and such officers or members at all reasonable times upon showing their credentials shall be admitted free of charge into all parts of all theaters in said cities."

The respondent's various claims as to the unconstitutionality of said section are substantially as follows:

(1) That said section compelling the holder of a license pertaining to a theater in the city of Providence to pay $3 per day to the person employed to guard against fire and to protect life in case of fire in such theater, and in providing that the salary of the person so employed to guard against fire and to protect life in such theater shall not be reduced, except with the prior approval of the board of fire commissioners of the city of Providence, deprives the defendant of its liberty and property without due process of law, in violation of section 1 of the Fourteenth Amendment of the Constitution of the United States.

(2) That said section, by imposing an unequal burden on the defendant as against the burdens imposed on other persons holding theatrical licenses in other cities in the state of Rhode Island, and in providing that the salary of the person employed to guard against fire and to protect life in a theater in the city of Providence shall not be reduced, except with the prior approval of the board of fire commissioners of the city of Providence, denies to the defendant the equal protection of the laws, in violation of section 1 of the Fourteenth Amendment of the Constitution of the United States. (3) That the provision of said section compelling the holder of a license pertaining to a theater in the city of Providence to pay $3 per day to the person employed by such holder to guard against fire does not distribute the burdens of the state fairly among its citizens, and is in violation of article 1, section 2, of the Constitution of the state of Rhode Island.

(4) That the provision of said section compelling the holder of a license pertaining to a theater in the city of Providence to pay $3 per day to the person employed by such holder to guard against fire and to protect life in such theater deprives the defendant of its liberty and property without the judgment of its peers, and is in violation of article 1, section 10, of the Constitution of the state of Rhode Island.

(5) That the provision of said section fixing the salary of the person employed to guard 108 A.-57

"There is also a common assent that the Legislature has the right of control in all matters affecting public safety, health, and welfare, on the ground that these are within the indefinable, but unquestioned, purview of what is known as the police power. It is indefinable, because none can foresee the ever-changing conditions which may call for its exercise; and it is unquestioned, because it is a necessary function of government to provide for the safety and welfare of the people."

In Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923, the court said:

"But neither the amendment [the Fourteenth Amendment], broad and comprehensive as it is, nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people."

In

It is beside the mark for the respondent to claim that it is beyond the power of the General Assembly to provide these regulations for the conduct of the theatrical business in this state, because the operation of a theater is a private business. The purpose of the statute is not primarily to regulate the business of the holders of theater licenses, but to guard the safety of those who attend theatrical entertainments. the city of Providence upon every secular day the audiences in the many theaters number thousands, a large proportion of whom are women and children. Experience has forcibly demonstrated the great hazard to which such audiences are subjected in the absence of safeguards for their protection and constant vigilance that such safeguards are maintained. It has been shown in many instances that the maintenance of such regulations for the safety of audiences cannot prudently be left to the initiative or to the control of the theater managers or their employés. Although the operation of theaters may in law be regarded as a form of private business, the care for the safety of theatrical audiences clearly presents a field for the exercise of the police power of the state for the public welfare. Tannenbaum v. Rehm, 152 Ala. 494, 44 South. 532, 11 L. R. A. (N. S.) 700, 126 Am. St. Rep. 52; Hartford v. Parsons, 87 Conn. 412, 87 Atl. 736, Ann. Cas.

1916A, 1182.

The respondent contends that said section, in requiring that it, as the operator of a

theater in the city of Providence, should employ a fire guard or inspector at a salary of not less than $3 per day, and that said guard should not be discharged, nor his salary reduced, except with the approval of the board of fire commissioners, interferes with the respondent's right to freely contract with its servant, and thus deprives it of its liberty without due process of law. It has been held that the right to make contracts is embraced in the conception of liberty guaranteed by the Fourteenth Amendment. This was pointed out by the court in Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. 427, 41 L. Ed. 832; Lochner v. N. Y., 193 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937, 3 Ann. Cas. 1133; Adair v. U. S., 208 U. S. 161, 28 Sup. Ct. 277, 52 L. Ed. 436, 13 Ann. Cas. 764; Coppage v. Kansas, 236 U. S. 1, 35 Sup. Ct. 240, 59 L. Ed. 441, L. R. A. 1915C, 960.

549, at page 567, 31 Sup. Ct. 259, 262 (55 L. Ed. 328), says:

"But it was recognized in the cases cited, as in many others, that freedom of contract is a qualified and not an absolute right;" and further that the right to make contracts "is subject also, in the field of state action, to the essential authority of government to maintain peace and security, and to enact laws for the promoof those subject to its jurisdiction." tion of the health, safety, morals, and welfare

Said Justice then cites, at page 568 of 219 U. S. (31 Sup. Ct. 262, 55 L. Ed. 328) a list of cases in the United States Reports which support the doctrine which he has enunciated. In Chicago, etc., R. R. Co. v. McGuire, supra, the court held:

That the "state has power to prohibit contracts limiting liability for injuries made in advance of the injury received, and to provide that the subsequent acceptance of benefits under such contract shall not constitute satisfaction of the claim for injuries received after the contract," and that "such a statute does not

In State v. Read, 12 R. I. 137, the defendant had been convicted on a complaint charging him with "keeping and exposing for sale certain drinks, food, and merchandise" in violation of the following statute:

It may be noted in passing that the respondent and the majority opinion place great reliance upon the authority of the cases just cited, but the legislation under re-impair the liberty of contract guaranteed by view in those cases had no reference to the Fourteenth Amendment." health, safety, morals, or the public welfare, and it is in the regulation of those matters alone that the legitimate field is presented for the exercise of the police power. In Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. 427, 41 L. Ed. 832, the court was considering the application of a statute of Louisiana, regulating insurance upon property in said state, to a contract of insurance made in New York. In Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937, 3 Ann. Cas. 1133, a statute of New York regulating the hours of labor of bakers was declared to have no relation to public health and not an exercise of the police power. In Adair v. United States, 208 U. S. 161, 28 Sup. Ct. 277, 52 L. Ed. 436, 13 Ann. Cas. 764, an act of Congress making it an offense for a public carrier to discharge an employé because he was a member of a labor organization was held not to be within the power of Congress in the regulation of interstate commerce. In Coppage v. Kansas the court was considering a statute of Kansas making it a misdemeanor for an employer to require an employé to agree not to become or remain a member of a labor organization during the time of the employment. Those cases, therefore, are not in point upon the question now before us. They all admit that, when the police power may properly be exercised for the preservation of public health and safety, as Mr. Justice Pitney says in Coppage v. Kansas, 236 U. S. 1, 35 Sup. Ct. 240, 59 L. Ed. 441, L. R. A. 1915C, 960:

"Such police regulations may reasonably limit the enjoyment of personal liberty, including the right of making contracts."

Mr. Justice Hughes, in commenting upon

"Section 1. Whenever any religious society shall hold any camp, tent, grove, or other outdoor meeting, for any purpose connected with the object for which such religious society was organized, no person, without the consent of such religious society or of its proper officers, shall keep in any shop, tent, booth, wagon or carriage, or other place for sale, or expose for sale any spirituous or intoxicating liquors, or other drinks, or food, or merchandise of any kind, or hawk or peddle any such liquors, or merchandise within one mile of the place of such meeting: * * * Provided, however, that nothing herein contained shall be construed to prevent innkeepers, grocers, or other persons from pursuing their ordinary business at their usual place of doing business, nor to prevent any perabode." Laws R. I. 1877, c. 629. son from selling victuals in his usual place of

The defendant had leased land for the purpose of selling food, but the statute prohibited his enjoying the privileges provided for in his contract. He, as well as all landowners, except "innkeepers, grocers or other persons," "pursuing their ordinary business at their usual place of doing business," and a person "selling victuals in his usual place of abode," within one mile of the meeting were by the act denied the liberty of acquiring property by making contracts for the sale of food and other merchandise. But this court held that the statute was constitutional as a valid police regulation.

In the case of In re Williams, Petr., 79 Kan. 212, 98 Pac. 777, the court upheld a

(108 A.)

state, and unless the regulations are so utter- is fixed by law. The licensee cannot prely unreasonable and extravagant in their na- scribe his duty, such direction being vested ture and purpose that the property and the per- in the fire commission; the licensee may sonal rights of the citizen are unnecessarily, and not require or receive services from the inin a manner wholly arbitrary, interfered with or destroyed without due process of law, they spector beyond the duties prescribed by said do not extend beyond the power of the state board. If said board is not satisfied with to pass, and they form no subject for federal the manner in which the inspector performs interference." his duties, he must be replaced by another power is given to the board, and not to the inspector approved by the board; and the licensee, to prescribe the uniform and the badge to be worn by such inspector.

We have at this length considered the respondent's claim that under the Fourteenth Amendment there has been secured to the theater manager the absolute and unqualified right to contract as to the service and the compensation of the fireguard or inspector stationed at its theater, and that said section 5, in violation of the Fourteenth Amendment, has undertaken to control the contract between it. as a master and said inspector as a servant. In making this contention the respondent and the majority opinion completely lose sight of the fundamental principles underlying the relation of master and servant. These principles are too elementary to require statement, save for the fact they have been entirely disregarded by said argument and majority opinion. The relation of master and servant exists only when

"the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or, in other words, not only what shall be done, but how it shall be done." 26 Cyc. 966.

"He is to be deemed a master who has the superior choice, control, and direction of the servant, and whose will the servant represents, not merely in the ultimate result of the work but in the details." 26 Cyc. 965.

Said section does use the word "employ" with reference to the appointment of such inspector. The respondent seizes upon said word as indicative of the nature of the inspector's service, and appears to assume that, since masters "employ" their servants, the employment of the inspector by the licensee makes said inspector the servant of the licensee. Such reasoning magnifies the use of a somewhat indefinite word into an indication of legislative intent contrary to and inconsistent with all the other provisions of said section. It is plain that the limit of the intention of the General Assembly in the use of the word "employ" was to permit the theater licensee in Providence to nominate for the approval of the fire commissioners, or to select for their approval, the person who should act as fire inspector in the theater of such licensee; but the person so not become in the slightest particular the nominated, when approved by the board, did servant of such licensee, but became the person charged with the performance of a public duty under the direction of the board of fire commissioners. For the court to give the conclusive force to the word "employ" which the respondent urges would be to question the deliberate action of a co-ordinate branch of the government upon a mere verbal quibble, and to magnify what is clearly circumstantial into something essential and intrinsic.

An examination of said section 5 unmistakably indicates that the relation there established between a theater operator and a fire inspector is entirely lacking in the elements essential to the relation of master and servant. Disregarding for the time those provisions the validity of which the respondent questions-viz. fixing a minimum salary and providing that the fireguard may not be dis- Under the statute the nature of the duties charged, or his salary reduced, "except with to be performed by the theater fireguards the prior approval of said board"-it appears in each of the cities of the state are the that in the city of Providence the licensee of same, whether said fireguard be a member a theater shall employ a suitable person, of the fire department of such city or a perapproved by the board of fire commissioners, son selected by the theater licensee and apwho shall be stationed in such theater dur- proved by the board of fire commissioners ing the time any audience is present therein, or the chief of the fire department of such who shall perform the duties prescribed by city, save that in the city of Providence it is the board to guard against fire, and to pro- specially provided that the duties of the firetect life and property in case of fire in such guard shall be restricted to the public duty theater, who shall not have any other duty, of guarding against fire, and protecting life and in case said board at any time shall and property in case of fire, and that he withdraw its approval of such person, anoth- shall have no other duty. This provision er person, approved by said board, shall be would completely exclude the performance employed in his stead. The theater licensee by the inspector of any service for the theahas neither the unrestricted choice, control nor direction of the inspector. Such licensee can only employ an inspector approved by the board of fire commissioners. The period dur

ter licensee in the ordinary conduct of its business as the operator of a theater. It is clear to us that the fireguard stationed in a theater is not the servant of the theater