Cornell University Library HD7816.U6M51 Constitutionality of workmen's copensati 3 1924 002 403 859 LIBRARY COP Constitutionality of Workmen's Compensation Acts. by H. V. Mercer HD 781b 5' Minneapolis 19 09 THE LIBRARY OF THE NEW YORK STATE SCHOOL OF INDUSTRIAL AND LABOR RELATIONS AT CORNELL UNIVERSITY PREFATORY NOTE. A general outline of the points here considered was giv- en in an oral argument at the Atlantic City Conference, July 29th, 1909, with a promise to fill in the authorities later. This article is taken from the report of the confer- ence as published. Its length is justified, if at all, because of the importance of Workmen's Compensation Acts at this time and particularly because three state commissions ap- pointed to investigate the subject, and many others have doubted the constitutionality. The writer's particular interest in the subject was occa* sioned by his appointment in 1908 by the Minnesota State Bar Association, as the chairman of a committee charged with the duty of drafting a proposed law on the question and reporting the same back to that association at a special meeting. The investigation caused a co-operation with employers and labor leaders in a successful effort to have certain laws passed requiring more data, and creating a- commission to investigate the general subject and to re- port a bill to the legislature of 1911. Governor John A. Johnson appointed on that commis : sion Geo. M. Gillette, Minneapolis, an employer of labor; W. E. McEwen, St. Paul, the State Labor Commissioner; and H. V. Mercer, a lawyer, now Chairman of the Commis- sion. The Atlantic City Conference was called by these commissioners, invitations sent to various state and gov- ernment officials interested in the subject, as Avell as others, like labor leaders, employers, representatives of the Kus- sel Sage Foundation, insurance officials, and others; and was the first of a number of similar meetings to be held, by which, it is hoped, uniform, equitable and constitutional legislation on the subject may be effected in the various States. PROPERTY OF LIBRARY NEW YORK STATE INDUSTRIAL AND LABOR RELATIONS The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924002403859 54 LEGAL POSSIBILITY OF WORKMEN'S COMPENSA- TION ACTS. By H. V. Mercer, op Minneapolis. [The argument made at the conference was not as lengthy as this, but an outline of it; and these authorities since m provided for the record.] Would a law changing the basis of recovery by an em- ploye from that of negligence or fault of the employer to that of a risk of the industry be constitutional? Can we enact workmen's compensation acts in the Unit- ed States that will he constitutional? In our opinion, this question must be answered in the affirmative if Courts give to it the same breadth of vision as to other questions of equal public importance, but the source of its justifica- tion with the states except as to public works must be the police power. DUAL GOVERNMENT. To answer this question, we must consider that our gov- ernment is built upon a dual system, having a federal con- stitution of granted powers, including limitations, and state constitutions of limitations upon powers. In the Federal Constitution the amendments provide : Article IX. "The enumeration in the constitution, of certain rights, shall not be construed to deny or disparage oth- ers retained by the people. 55 Article X. "The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved tothe states, respectively, or to the people." In McGulloch v. The State of Maryland, et al, 4 Wheat- on, 406 (L. Ed. 596) the Supreme Court speaking through Chief Justice Marshall said : "All powers are given, to the national government, as the people will. The reservation in the 10th amend- ment to the constitution, of 'powers not delegated to the United States,' is not confined to powers not ex- pressly delegated. Such an amendment was indeed proposed; but it was perceived that it would strip the government of some of its most essential powers, and it was rejected. Unless a, specific means be expressly prohibited to the general government, it has it with- in the sphere of its specified powers." In Lane Go. v. Oregon-, 7 Wallace, 76 L. Ed. 101, Mr. Chief Justice Chase said : • "That people of the United States constitute one na- tion, under one government, and this government, within the scope of the powers with which it is in- vested, is supreme. On the other hand, the people of each State compose a State, haying its own govern- ernment, and endowed with all the functions essential to separate and independent existence. The States dis- united might continue to exist. Without the States in union there could be no such political body as the United States. * * * The general condition was well expressed by Mr. Madison in the Federalist, thus : 'The Federal and State Governments are, in fact, but different agents and trustees of the people, constitut- ed with different powers and designated for different purposes.' " i In Bufmgton v. Day, 11 Wallace, 113 (L. Ed. 122) , it is said: < \ \ \ ■ ' "It is a familiar rule of construction of the Consti- tution of the Union, that the sovereign powers vested 56 in the state governments by their respective constitu- tions, remained unaltered and unimpaired except so far as they were granted to the Government of -the United States. That the intention of the framers of the Constitution in this respect might not be misun- derstood, this rule of interpretation is expressly de- clared in the 10th article of the amendments. * * * ''The General Government, and the States, although both exist within the same territorial limits, are sepa- rate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. The former, in its appropriate sphere, is su- 1 preme, but the States within the limits of their powers not granted, or, in the language of the 10th Amend- ment 'reserved,' are as independent of the General Government as that government within its sphere is independent of the States." In United States ex rel, Turner v. Williams, 194 U. S. 296 (L. Ed. 979-986), Mr. Justice Brewer gives a .separate concurring opinion in which, referring to the 10th Amend- ment, we find this language : "The powers the people have given to the general government are named in the Constitution, and all not there named, either expressly or by implication, are reserved to the people, and can be exercised only by them, or upon further grant from them." In Tmnmg v. New Jersey, 211 U. S. 78, it is said: "It must not be forgotten that in a free represen- tative government nothing- is more fundamental than the right of the people through their appointed ser- vants to govern themselves in accordance with their own will, except so far as they have restrained them- selves by constitutional limits specifically established ; and that in our peculiar dual form of government nothing is more fundamental than the full power of the state to order its own affairs and govern its own people, except so far as the Federal constitution ex- pressly or by fair implication has withdrawn that pow- er. The power of the people of the states to make and alter their laws at pleasure, is the greatest security for liberty and justice." 57 Under this dual form of government we study the Fed- eral Constitution to see if the power to legislate on this subject has been given to the United States government; we also study both that constitution and the constitution of the particular state to see if such legislation has been prohibited to the state. This of course, upon the theory •that the Federal Government is built upon granted pow- ers, but the state government upon inherent, though limit- ed powers. QUESTIONS. Under these circumstances we must keep in mind three things ; First, Has the power of legislation upon this ques- tion been delegated to Congress by- the Federal Constitu- tion? Second, Has the power of such state legislation been prohibited by the Federal constitution? Third, Has it been prohibited by the particular states? THEORY OF TEE DISCUSSION. I. The public work is not controlled by the constitutional rule as to freedom of contract. II. The relations of the people to the governments of the United States and of the several states are based upon contract to which individual rights are enough subjected to protect the general welfare, at least under the police power. 58 III. The commerce clause of the Federal Constitution grants to Congress the right to control relations of master and servant in so far as needed in such commerce, but does not grant to the Federal Government the right to deprive the state of its police power or to regulate state commerce. (a) The commerce clause was not intended to, and does not, take away the police power of the states. (b) The states execute the police power even with re- spect to interstate commerce but do so for their self pro- tection and only to such extent as not to amount to regu- lation in the constitutional sense; except where limited they have the powers of other nations. IV. The police power of the people of the several states was never delegated by the Federal Constitution, nor prohib- ited by that instrument from reasonable state exercise. (a) The Fourteenth Amendment was not designed to destroy the state's police power. Some of the usual constitutional objections against laws are not applicable to this question for they do not apply to the state if it stays within reasonable, equal, and lawful regulations of dangerous employments. (a) The first ten amendments to the Federal Constitu- tion apply only to the Federal Government and do not re- quire the states to give the jury trial but probably would require such trial in the Federal Courts. 59 VI. The Fourteenth Amendment to the Federal Constitu- tion is a prohibition upon the states — not upon the nation- al government. (a) The privileges and immunities secured by that in- strument are those which belong to citizens of the United. States as distinguished from states. (b) Equal protection of the laws is construed by the Federal Courts as it is by the state courts to permit the reasonable classifications treating those within the class equally. This is no bar to such law. (c) The due process of law provided by the Fifth Amendment applies only to the Federal Government but in the Fourteenth Amendment it is a prohibition upon the states. (d) The Federal Constitution, however, does not control mere form of procedure in or regulate the practice of state courts. All that it requires is that at some point in the 'controversy there must be a time and place for the court to adjudicate the legal liability. (e) It is not taking private property without due pro- cess of law within the constitutional provisions to require dangerous employments to be liable for the risks of the in- jury without any particular fault in the special transac- tions. (f ) The jury trial provided by the state constitutions is the trial of such cases as embrace principles secured by the constitution when it was adopted and not a trial of matters involved only in new laws such as this would be. 60 VII. This sort of law would not take private property for public use by reason of two principles: (a) Under our social compact the private owner ha® no ownership except that which is subject to reasonable control such -as this would be. (b) The private individual has no right to complain of the taking of only so much property as is an aid to gov- ernment operation by reason of the last above principle. VIII. The Fourteenth Amendment secures the liberty of con- tract between employer and employe except when limited by the police power ; the exercise of the police power rests in the legislative department; the courts interfere to up- hold the constitution only to prevent arbitrary power from being exercised under cover of the police power. (a) The courts recognize that the employer and the em- ploye do not stand on an equality in making their con- tracts. (b) The police power is used to regulate insurance of private property and the control of employer and em- ploye. (>c) No owner of property has the right to claim that a contract previously in existence has been changed in its obligations by reason of the exercise of the police power because the implication of the power always went with that contract as a matter of law. (d) The police power can neither be legislated nor con- tracted away. 61 IX. The action of the state must not be arbitrary. (a) The ■common law was not made to meet the present conditions and is totally inadequate to meet the present conditions. (b) The law has not kept apace with industry. (c) The employe carries this risk now. (d) It is a great temptation to perjury. (e) The employer not satisfied. (f) It is unsatisfactory to the public. The compensation in the modern foreign countries along this line. (a) What advantage has been made. (b) The common law has been modified in many re- spects and there seems to be no reason why it should not be arranged, at least after a reasonable remedy is giyen in its stead. (c) The Federal Government and many of the states have been working on this change sufficient to Show that no party wants arbitrary action but only reasonable regu- lation, yet, there are doubts in the minds of many as to whether we can make the necessary laws. XI. The simplest remedy, already well justified for property insurance, is to fix a definite liability by law for hazard- 62 ous industries on condition that 'the amount of damages be submitted to arbitration — repeal the common law. XII. The fallacy in the most of our objections lies in the fact that we fail'to understand or appreciate the weight which must be given to the power to protect the public interests. The power of general welfare must always remain with <3he states subject only to reasonable and lawful regula- tions. I. PUBLIC WORK IS NOT CONTROLLED BY THE CONSTITUTIONAL RULE AS TO FREEDOM OF CON- TRACT. In AtJsm v. State of Kansas, 191 U. S. 205 (L. Ed. 148), the Supreme Court held that the freedom of contract guar- anteed by the 14th Amendment was not infringed by the provisions of the Kansas statute, making it. a criminal offense for a contractor for public work to permit or re- quire an employe to perform labor upon that work in ex- cess of eight hours per day. * That opinion was by Mr. Justice Harlan. It was stipu- lated that the labor performed was healthful, outdoor work, not dangerous, hazardous or in any way injurious in the case under consideration. In the course of that opin- ion the court said : "It may be that the state, in enacting the statute, intended to give its sanction to the view held by many, that, all things considered, the general welfare of em- ployees, mechanics, and workmen, upon whom rest a portion of the 'burdens of government, will be sub- 63 served if labor performed for eight continuous hours was taken to be a full days' work ; that the restrictions of a day's work to that number of hours would pro- mote morality, improve the physical and intellectual condition of laborers and workmen, and enable them the better to discharge the duties appertaining to citi- zenship. We have no occasion here to consider these questions or to determine upon which side is the sounder reason; for whatever may hav.e been the mo- tives controlling the enactment of the statute in ques- tion, we can imagine no possible ground to dispute the power of the state to declare that no one undertaking work for it or for one of its municipal agencies should permit or require an employee on such work to labor in excess of eight hours each day, and to inflict pun- ishment upon those who are embraced by such regu- lations and yet disregard them. , It cannot be deemed a part of the liberty of any contractor that he be al- lowed to do public work in any mode he may choose to, adopt, without regard to the wishes of the state, on the 'contrary it belongs to the state, as the guar- dian and trustee for its people, and having control of its affairs, to prescribe the conditions upon which it will permit public work to be done on its behalf, or on behalf of its municipalities. No court has author- ity to review its action in that respect. Regulations on this subject suggest only considerations of public policy. , And with such considerations the courts have no concern. "If it be contended to be the right of every one to dispose of his labor upon such terms as he deems best, — as undoubtedly it is, — and that to make it a crimi- nal offense for a contractor for public work to permit or require his employes to perform labor upon that work in excess of eight hours each day is in deroga- ,tion of the liberty both of employees and employer, it is sufficient to answer that no employee is entitled, of absolute right and as a part, of his liberty, to perform labor for the state;, and no contractor for public work can excuse a violation of his agreement with the state by doing that which the statute under which he pro- ceeds distinctly and lawfully forbids him to do." 64 And again at L. Ed., page 158 : "We are reminded by counsel that it is the solemn duty of the courts in cases before them to guard the constitutional rights of the citizen against merely ar- bitrary power. That is unquestionably true. But it is equally true — indeed, the public interests impera- tively demand — that legislative enactments, should be recognized and enforced by the courts as embodying the will of the people, unless they are plainly and palp- ably, beyond all question, in violation of the founda- mental law of the Constitution. It cannot be affirmed of the statute of Kansas'that it is plainly "inconsistent with that instrument; indeed, its constitutionality is beyond all question. * * * "Some stress is laid on the fact stipulated by the •" parties for the purposes of this case, that the work performed by defendant's employee is not dangerous to life, limb, or health, and that daily labor on it for . ten hours would not be injurious to him in any way. In the view we take of this case, such considerations are not controlling. We rest our decision upon the broad ground that the work being of a public char- acter, absolutely under the control of the state and its municipal agents acting by its authority, it is for the state to prescribe the conditions under which it will permit work of that kind to be done. Its action touch- ing such a matter is final so long as it does not, by its regulations, infringe the personal rights of others, and that has not been done." Atkin v. Kansas, 191 TJ. S. 205 (L. Ed. 148-159). This decision like many of the others recognizes the lib- erty of contract in non dangerous transactions of a private nature but not as applied to public work. 65 II. THE RELATIONS OF THE PEOPLE TO THE GOV- ERNMENTS OF THE UNITED STATES AND OF THE SEVERAL STATES ARE BASED UPON CONTRACT TO WHICH INDIVIDUAL RIGHTS ARE ENOUGH SUBJECTED TO PROTECT THE \GENERAL WEL- FARE, AT LEAST UNDER THE POLICE POWER. The "contract theory" was the basis of the American constitutional ^system. The first writer who maintained the idea on the eastern continent was Johannes Althusius, in the beginning of the seventeenth century; bnt the first work in England was Hooker's Ecclesiastical Polity. See Willoughby, Nature of State, Oh. IV, p. 62. Loioell's Essays on- Government (social compact). Hooker was a clergyman of the Church of England and it is claimed that he originated this theory in 1594, for the purpose of defending the established church against its enemies. Lowell's Essays on Government, (social compact). Willoughby, Nature of State, Ch. IV, 62. Lowell thinks that the idea that the rules derived their authority from the people was not new, yet the deduction of the lawfulness of laws from the voluntary association of individuals was new. ■ The first and perhaps the most for- mal social compact known to history was made Nov. 11th, 162Q, in the cabin of the Mayflower; it was in writing, signed by all the parties, and was clear and explicit. See copy of Loioell's Essays on, Government. 66 The theory was taken up by Hugo Grotius in 1625, in his work "De Jure Belli et Pads." He said : "That the mother of natural law is nature itself and the mother of civil law is that very obligation which arises from consent, which, deriving its force from the law of nature, may be called, as it were, the great grandmother of this law also." - Lowell also says that in "The Tenure of Kings & Magis- trates," written in 1649, Milton, in justification of Charles I., traces the outlines of the same principles afterwards developed by Locke. He further says that Hobbes took up the theory in 1651 to support the doctrine of the un- limited power of the king and that Hobbes founded all justice and law upon a, mutual transfer of rights bj con- tract. This theory enabled the English Convention to retain the crown of James II. by the following resolution : "That King James, the second, having endeavored to subvert the constitution of the, kingdom, by breaking the original con- tract between King and people, and having, by the advice of Jesuits and other wicked persons, violated the funda- mental laws, and having withdrawn himself out of this Kingdom, has abdicated the government, and that the throne is thereby vacant." About two years later John Locke published his treatise on Government. Lowell says that Locke began with the only proposition common to all writers of the theory school — "that in a state of nature all men are equal" ; that Locke said a political society was formed "when a num- ber of men agree to give up to that society their individual rights of punishing offenders, and of exacting by their own force redress for injuries. In so doing they consent that a majority (unless there is a stipulation for a larger propor- 67 tion), shall have power to make and execute laws neces- sary to accomplish the purposes for which the society is formed, and shall have authority to call upon each man to employ his force to carry out the judgment of the society." In his Theory of the' State, Buntschli says : "That the contract theory is applied quite different- ly by Hobbes, Locke and Rosseau; that according to Hobbes men only pass from a state of nature to the so- cial state by surrendering their rights to a sovereign, one, few or many (Leviathan, Ch. 17) ; that Locke supposes rights, e. g., of liberty and property, to exist in the state of nature by the original compact, and that a form of government is instituted to secure these rights (Treatise on Gov., B. II, C. 6, Sec. 2) ; that ac- cording to Rosseau men pass from the state of nature to the social state by the social contract (as in Hobbes' theory), but that the sovereign to which each surren- ders his rights is the people, so that each- is sovereign as well as subject (Cont. Soc. I., Ch. 6, this sovereign- ty is inalienable, II, C. I; III, C. 16) ; that since the time of Rosseau the contract theory has enjoyed great and widespread popularity." In the discussion of vested rights, the court said, in Oothen v. Stoningtoh, 4 Conn., at 225 : "Should there exist what I know is not only an in- credible supposition, but a most remote improbability, a case of the direct infraction of vested rights, too pal- pable to be questioned and too unjust to admit of vin-. dication, I could not avoid considering it as a viola- tion of the social compact, and within the control of the judiciary." The constitution of Mass. (1870) says: "The body politic is formed by a voluntary associa- tion of individuals; it is a social compact by which the whole people covenants with each citizen^ and each citizen with the whole people, that all shall be govern- ed by certain laws for the common good." The constitution of New Hampshire says : "All men are born equally free and independent; 68 therefore all government of right originates in the peo- ple, is founded in consent, and instituted for the gen- eral good of all." The constitution of Virginia says : "That all men are by nature equally free and inde- pendent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or 'divest their posterity, namely, their enjoyment of life and liberty, with the means of acquiring and possessing property, and pur- suing happiness and safety." The constitution of Maryland says : "All government of right originates from the peo- ple, is founded in compact only, and instituted solely for the good of the whole." Story on the Constitution, quoting froiii Number 43 of "The Federalist," says: "The fabric of American Empire ought to rest on a solid basis of the consent of the people. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority." See Note from Coke, 19 Dill. Mun. Corps. It is evident from both the letter and the spirit of the Declaration of Independence that this theory prevailed in the colonies at the time of its adoption. In Calder v. Bull, 3 Dall., at 394, L. Ed. 651, Chase, J., (U. S. Sup. Court) said: "It seems to me that the right of property, in its origin could only arise from compact, express or im- plied, and I think it the better opinion, that the right as well as the mode or manner of acquiring property, and of alienation of transferring, inherited or trans- mitting it, is conferred by society ; is" regulated by civil institution, and is always subject to the rules pre- scribed by positive law." This general right is applicable here if the public good requires its exercise. 69 In Munn t\ Illinois, 94 U. S. 113, L. Ed. 83-84, the ques- tion was whether a grain elevator should be subjected to control by the state, and while the discussion was on that question, the language of the court is such as to show the theory upon which the police power rests : "When one becomes a member of society, he neces- sarily parts with some rights or privileges which, as an individual, not affected by his relations to others, he might retain. 'A body politic,' as aptly defined in the preamble of the Constitution of Massachusetts, 'is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.' This does not confer power upon the whole people to control rights which are purely and exclusively private. Thorpe v. R. R. Co., 27 Vt. 143, but it does authorize the establishment of laws requiring each citizen to so conduct himself and so use his own property as ■ not unnecessarily to in- jure another. This is the very essence of govern- ment, and has found expression in the maxim, Sic u-tere tuo ut alienum non laedas. From this source come the police powers, which as was said by Chief Justice Taney in The License Cases, 5 How. 583, 'Are nothing more or less than the powers of gov- ernment inherent in every sovereignty — that is to say, — the power to govern men and things.' Under these powers the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such reg- ulation becomes necessary for the public good." In Adair v. United States, 208 U. S. 161, the court in re- ferring to the police powers said: "Both property and liberty are held on such rea- sonable conditions as may be imposed by the govern- ■ ing power of the state in the exercise of those powers, and with such conditions the 14th amendment was not designed to interfere. * * *" Under this theory the public — the general welfare — is protected and secured. The development of this study will 70 show that the courts recognize these mutual obligations and restrictions as between the states and the individuals on the question of individual rights. Police Poiver Defined. The right to purchase or to sell labor is part of the liber- ty protected by this (14th) Amendment unless there are circumstances which excludes the right. In the Adair case, 208 U. S. 161, L. Ed. 436, Mr. Justice Harlan said: "There are, however, certain powers existing in the sovereignty of each state in the Union, somewhat vaguely termed 'police power,' the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated, and with- out, at present, any attempt at a more specific limita- tion, relate to the safety,* health, morals, and general welfare of the public." In E olden v. Hardy, 169 U. 6. 366, (L. Ed. 380) the court said: "While this power is inherent in all governments, it has doubtless been greatly expanded in its application during the past century, owing to an enormous in- crease in the number of occupations which are danger- ous, or so far detrimental to the health of employees as to demand special precaution for their well-being and protection, or the safety of adjacent property. * * * "This power legitimately exercised can neither be limited by contract nor bartered away by litigation. "While this power is necessarily inherent in every form of government, it was, prior to the adoption of the Constitution, but sparingly used in this country." HoUen v. Hardy, 169 U. B. 366 (L. Ed. 780-93). With respect to the development of the resources of the country the court continues : 71 "As we were then almost purely an agricultural peo- ple, the occasion for any special protection of a par- ticular class did not exist. Certain profitable employ- ments, such as lotteries and the sale of intoxicating liquors, which were then considered to be legitimate, have since fallen under the ban of public opinion, and are now either altogether prohibited, or made subject, to stringent police regulations. The power to do this has been repeatedly affirmed by this court. * * * "While the business of mining coal and manufac- turing iron began in Pennsylvania as early as 1716, and in Virginia, North Carolina, and Massachusetts even earlier" than this, both mining and manufactur- ing were carried on in such a limited way and by such primitive methods that no special laws were consid ered necessary, prior to the adoption of the Constitu- tion, for the protection of the operatives, but, in the vast proportions which these industries have since as- sumed, it has been found that they can no longer be carried on with due regard to the safety and health of those engaged in them, without special protection against the dangers necessarily incident to these em- ployments. In consequence of this, laws have been enacted in most of the states designed to meet these exigencies and to secure the safety of persons peculi- arly exposed to those dangers. Within this general catagory are ordinances providing for fire escapes for hotels, theaters, factories, and other large buildings, a municipal inspection of boilers, and appliances de- signed to secure passengers upon railways and steam- „ boats against the dangers necessarily incident to these methods of transportation. In states where manufac- turing is carried on to a large extent, provision is made for the protection of dangerous machinery against accidental contact, for the cleanliness and ventilation of working rooms, for the guarding of well holes, stairways, elevator shafts, and for the employ- ment of sanitary appliances. In others, where min- ing is the principal industry, special provision is made for the shoring up of dangerous walls, for- ventilation shafts, bore holes, escapement shafts, means of sig- nalling the surface, for the supply of fresh air and the elimination, as far as possible, of dangerous gases, for safe means of hoisting and lowering cages, for a 72 limitation upon the number of persons permitted to enter a cage, that cages shall be covered, and that there shall be fences and gates around the top of shafts, besides other similar precautions. * * * "These statutes have been repeatedly enforced by the courts of the several states; their validity assumed, and, so far as we are informed, they have been uni- formly held to be constitutional. * * * "But if it be within the power of a legislature to adopt such means for the protection of the lives of its citizens, it is difficult to see why precautions may not also be adopted for the protection of their health and morals. It is as much for the interest of the state that the public health should be preserved as that life should be made secure. With this end in view quar- antine laws have been enacted, in most if not all of the states; insane asylums, public hospitals, and institu- tions for the care and education of the blind estab- lished, and special measures taken for the exclusion of infected cattle, rags, and decayed fruit. In other states laws have been enacted limiting the hours dur- ing which women and children shall be employed in factories; and while their constitutionality, at least as applied to women, has been doubted in some of the states, they have been generally upheld." 1 Holden v. Hardy, 169 IT. S. 366 (L. Ed. 780-91). In Mu-gler v. Kansas, 123 U. S. 623, it is said: "By the settled doctrines of this court the police power extends, at least, to the protection of the lives, the health and the property of the community against the injurious exercise, by any citizen of his own rights. State legislation, strictly and legitimately for police purposes, does not in the sense of the Constitution, necessarily intrench upon any authority which has ■ been confided, expressly or by implication, to the Na- tional Government." See pp. 75-82* 125-121 73 III. THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION GRANTS TO CONGRESS THE RIGHT TO CONTROL RELATIONS OF MASTER AND SERVANT IN SO FAR AS NEEDED IN SUCH COMMERCE, BUT DOES NOT GRANT TO THE FED- ERAL GOVERNMENT THE RIGHT TO DEPRIVE THE STATE OF ITS POLICE POWER OR TO REGU- LATE STATE COMMERCE. (a) The commerce clause was not intended to, and does not, take away the police power of the states. (ib) The states execute the police power even with re- spect to interstate commerce but do so for their self pro- tection and only to such extent as not to amount to regu- lation in the constitutional sense. That clause reads : "The Congress shall have power; * * * To regulate commerce with foreign nations, and among the several states, and with the Indian tribes. * * *" Const, of U. S., Art. 1, Sec. 8. Since the decision of the Supreme Court in Hotoard v. III. Cent. R. R. Co., 207 U. S. 463 (L. Ed. 297), there is no longer any doubt but that in so far as the relations of employer and employe are concerned, they are under the control of Congress when a part of the means or adminis- tration of the commerce clause, but are-not so when they relate to purely intrastate commerce. With respect to whether or not the act of June 11, 1906, regulated commerce the court said : "We think the unsoundness of the contention that, because the act regulates the relation of master and 74 servant, it is unconstitutional, because, under no cir- cumstances, and to no extent, can the regulation of such subject be within the grant of authority to regu- late commerce, is demonstrable. We say this because we fail to perceive any just reason for holding that Congress is without power to regulate the relation of master* and servant, to the extent that regulations adopted by Congress on that subject are solely confined to interstate commerce, and therefore are within the grant to regulate that commerce, or within the au- thority given to use all means appropriate to the exer- cise of the powers conferred. * * * "It cannot be said that because a regulation adopted by Congress as to such train when so engaged in in- terstate commerce deals with the relation of the mas- ter to the servants operating such train or the rela- tions Of the servants engaged in such operation be- tween themselves, that it is not a regulation of inter- state commerce. This^ must be, since to admit the au- thority to regulate such train, and yet to say that all regulations which deal with the relation of master and servants engaged in its operation are invalid for want of power, would be but to concede the power and then to deny it; or, at all events, to recognize the power and yet to render it incomplete." Howard v. III. Cent. R. Co., 207 U. S. 461 (fc. Ed. 297-308). The rule generally applied to delegations of Federal pow- er, prevails with respect to this question, that the states may act till Congress exercises its powers. Pierce v. Van Onsen, 78 Fed. 693 (6. C. C. A.) (De- cision by Harlan, Taft and I/urton). a. The commerce clause does not take, and was not intended to take, the police power from the states; but it does give to Congress such powers over the -subject as to exclude state action when Congress does act, except what is neces- sary for state protective measures. 75 In McLean v. Denver & B. G. B. B. Co., 203 TJ. S. 38-47, (L. Ed. 78) it is said: ''It has been too frequently decided by tbis court to require the restatement of the decisions, that the ex- clusive power to regulate interstate commerce is vest- ed by the Constitution in Congress, and that other laws which undertake to regulate such commerce or impose burdens upon it are invalid. This doctrine has been reaffirmed and announced in cases decided as recently as the last term of this court. While this is true, it is equally well settled, that a state or terri- tory, for the same reasons, in the exercise of the po- lice power, may make rules and regulations not con- flicting with the legislation of Congress upon the same subject, and not amounting to regulations of inter- state commerce. It will only be necessary to refer to a few of the many cases decided in this court holding valid enactments of legislatures having for their ob- ject the protection, welfare and safety of the people, although such laws may have an effect upon inter- state commerce. The principle decided in these cases is that a state or territory has the right to legislate for the safety and welfare of its people, and that this right is not taken from it because of the exclusive right of Congress to regulate interstate commerce, except in cases where the attempted exercise of authority by the legislature is in conflict with an act of Congress, or is an attempt to regulate interstate commerce." In the Adair case, 208 U. iS. 161, (L. Ed. 436) Mr. Jus- tice Harlan said : "There are, however, certain powers existing in the sovereignty of each state in the Union, somewhat vaguely termed 'police power,' the exact description and limitation of which have not been attempted by the courts. Those powers^ broadly stated, and with- out, at present, any attemp't at a more specific limita- tion, relate to the safety, health, morals, and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the state in the exercise of those powers, and with such conditions the 14th amendment was not designed to interfere." 76 This makes it clear that in the exercise of the police pow- er reasonable regulations may be made even though they may affect interstate commerce; provided they do not con- flict with the action of Congress or attempt to regulate interstate commerce. 'b. The states execute the police power within the states. . The state's police- power can only interfere with inter- state commerce for self protection. In Railway Co. v. Huson, 95 U. S. 465, L. Ed. 530-1, in reaching the conclusion that the State of Missouri had un- duly regulated interstate commerce the court stated in ef- fect that while the police power was not granted over such commerce to the federal government the rights were so nearly granted as to compel the courts to guard it with diligence against needless intrusion but admitted the fol- lowing principles: "We are thus brought to the question whether the Missouri Statute is a lawful exercise of the police power of the state. We admit that the deposit in Congress of the power, to regulate foreign commerce and commerce among the states was not a surrender of that which may properly be denominated police power." And further: "But whatever may 'be the nature and reach of the police power of a State, it cannot be exercised over a subject confided exclusively to Congress by the Fed- eral Constitution. It cannot invade the domain of the National Government," 77 And further: "Many acts of a State may, indeed, affect Com- merce, without amounting to a regulation of it, in the constitutional sense of the term. And it is some- times difficult to define the distinction between that which merely affects cr influences, and that which regulates or furnishes a rule for conduct. There is no such difficulty in the present case. While we un- hesitatingly admit that a State may pass sanitary laws, and laws for the protection of life, liberty, health or property within its borders; while it may prevent persons and animals suffering under conta- gious and infectious disease, or convicts, etc., from en- tering the state; while for the purpose of self protec- tion it may establish quarantine, and reasonable in- spection laws, it may not interfere with transporta- tion into or through the state, beyond what is abso- lutely necessary for its self protection." In the case of Mayor, Aldermaiv, et wl. of New York v. Miln, 11 Peters, 102, L. Ed. 660-62-64, there is an elaborate opinion on the.police powers. In February, 1824, the leg- islature of New York passed an act providing that the Master of every vessel arriving in New York from a foreign port, or from a port of any of the states other than New York, was required under certain penalties within a cer- tain time to report in writing, containing the names, ages, and last local settlement of every person who should have been on board the vessel during the voyage, and that if any of the passengers should have gone on board any other ves- sel and landed at any other place with a view to proceed to New York the same should be stated in the report. The corporation of the City of New York instituted an action under this law for debt against the Master of the ship Emily to recover the penalties imposed by this act, etc. ' The defendant demurred to the declaration and the judges of the circuit court being divided in opinion as to whether 78 or not this act regulated trade and commerce between New York and foreign ports and was therefore unconstitutional and void, certified the case to the Supreme Court. The Supreme Court reached the conclusion that it was not a regulation of commerce but of police. That court held that all those powers which relate to merely municipal leg- islation or which may more properly be called internal po- lice are not surrendered or restrained consequently, in re- lation to them the authority of a :state is complete, unqual- ified and exclusive. The court said on page 134j "We shall not enter into any examination of the question whether the power to regulate commerce be or be not exclusive of the States, because the opinion which we have formed renders it unnecessary ; in oth- er words, we are of opinion that the act is not a regu- lation of commerce,. but of police; and that being thus considered, it was passed in the exercise of a power* which rightfully belonged to the States." And: "The power, then, of New York, to pass this law having undeniably existed at the formation of the Con- stitution, the simple inquiry is, whether by that in- strument it was taken from the states and granted to Congress ; for if it were not it yet remains with them. "If, as we think, it be a regulation, not of commerce but police, then it is not taken from the States." And: "The Federalist, in the 45th number, speaking of this subject, says the -powers reserved to the several states will extend to all the objects, which in the or- dinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State. "And this Court in the case of Gibbons v. Of/den, (9 Wheat. 203), which will hereafter be more particular- lv noticed, in speaking of the inspection laws of the 79 states, say they form a portion of that immense mas® of legislation which embraces everything within the territory of a state not surrendered to the general gov- ernment, all of which can be most advantageously ex- ercised by the states themselves. Inspection laws, quarantine laws, health laws, of every description, as well as laws for regulating the internal co mm erce of a state, and those which respect turnpike roads, fer- ries, and are component parts of this^mass. "Now, if the act in question be tried by reference to the delineation of power laid down in the preceding quotations, it seems to us that we are necessarily brought to the conclusion that it falls within its lim- its. There is no aspect in which it can be viewed in which it transcends them. If we look at the place of its operation, we find it io be within the territory, and, therefore, within the jurisdiction of New York. If we look at the person on whom it operates, he is found within the same territory and jurisdiction. If we look at the persons for whose 'benefits it was passed, they are the people of New York, for whose protection and welfare the Legislature of that state are authorized and in duty bound to provide. "If we turn our attention to the purpose to be at- tained, it is to secure that very protection, and to pro- vide for that very welfare. If we examine the means by which these ends are proposed to be accomplished, they bear a just, natural and appropriate relation to those ends." With respect to the difficulties of defining the police power the court continues : "We choose rather to plant ourselves on what we consider impregnable positions. They are these: that a state has the same undeniable and unlimited juris- diction over all persons and things within its terri- torial limits as any foreign nation, where that juris- diction is not surrendered or restrained by the Con- stitution of the United States. That, by virtue of this, it is not only the right but the bounden and solemn duty of a state, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every act of legislation which it 80 may deem to be conducive to these ends; where the power over the particular subject, or the manner of its exercise is not surrendered or restrained in the manner just stated. That all those powers which re- late to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, conse- quently, in relation to these, the authority of a state is complete, unqualified and exclusive." And further: "We are, therefore, of opinion, and do direct it to 'be certified to the Circuit Court for the Southern Dis- trict of New York, that so much of the section of the act of the Legislature of New York as applies to the breaches assigned in the declaration, does not assume to regulate commerce between the port of New York and foreign ports, and that so much of said section is constitutional." It is thus evident that while it is sometime* difficult to draw the line between that which merely affects or -influ- ences, as distinguished from that which rules or conducts, • commerce, yet the state has the right of self preservation or police and this subject has reached a condition where self preservation and police require that its citizens be protected and compensated. Except as herein shown the states can act as freely as foreign nations. IV. THE POLICE POWER OF THE SEVERAL STATES WAS NEVER DELEGATED BY THE FEDERAL CON- STITUTION, NOR PROHIBITED BY THAT INSTRU- MENT FROM REASONABLE STATE EXERCISE. (a) The Fourteenth Amendment was not designed to destroy the state's police power. 81 Police Power not Delegated or Prohibited. A search of the Federal constitution fails to reveal any delegation of the police power within the states; neither the Federal nor state constitutions have prohibited it to the state, except to the extent of requiring equal, reason- able, and lawful regulations. Organized society retains the power to govern through the police power. This general right is applicable here if the public, good requires its exercise. In Munn v. Illinois, 94 U. f the Constitution and laws of the United States relating to the regulation of commerce with foreign nations and among the sev- '» eral states or otherwise. 1 In United. States v\ DeWitt, 9 Wall. 41, L. Ed. 593-4, through -an opinion by Chief Justice Chase, the Supreme Court said, in relation to a law making it a misdemeanor to mix certain kinds of oils : "As a police regulation relating exclusively to the internal trade of the states, it can only have effect where the legislative authority of Congress excludes territorially all state legislation as for example in the District of Columbia, Within state limits it could have no constitutional operation. This has been so frequently declared by this court; results so obviously from the terms of the constitution, and has been so fully explained and supported on former occasions, that we think it unnecessary to enter again upon the discussion." This makes it evident that the police power, generally speaking, rests in the state government, except over such territory as Congress has the power to control. In Muglerv. Kansas, 123 U. S. 623, L,Ed. 205-211-212, it is held first, that lawful state regulation in the exercise of the police power to prohibit the manufacture and sale of liquors may be enforced against persons who at the time 83 happen to own property whose chief value consists in its fitness for such manufacturing purpose without compen- sating them for the diminution in value resulting from such prohibitory enactments. The constitutionality of this stat- ute was upheld. After discussing the fact that the policy of such laws rests with the legislature and not the courts Mr. Justice Harlan isaid: "No one may rightfully do that which the law mak- ^ ing power on reasonable grounds declares to be preju- dicial to the general welfare." The Court re-quoted from New Orleans Gas Co. v. Louis- iana Light Go., as follows : "Again, in New Orleans Gas Light Co. n. Louisiana Light Co., 115 U. S. 650, 672, 29 L. Ed. 516, 524: 'The constitutional prohibition upon state laws im- pairing the obligation of contracts does not restrict the power of the state to protect the public health, the public morals or the public safety, as the one or the other may be involved in the execution of such con- tracts. Rights and privileges arising from contracts with a State are subject to regulations for the protec- tion of the public health, the public morals, and the v public safety, in the same sense, and to the same ex- tent, as are all contracts and all property, whether owned by natural persons or corporations.' "The principle that no person shall be deprived of life, liberty or property without due process of law, was embodied, in substance, in the Constitutions of nearly all, if not all, of the states at the time of the adoption of the Fourteenth Amendment; and it has never been regarded as incompatible with the prin- ciple, — equally vital, because essential to the peace and safety of society,— that all property in this coun- try is held under the implied obligation that the own- ers use of it shall not be injurious to the community." S4 And then continued the principle : "By the settled doctrines of this court the police power extends, at least, to the protection of the lives, the health and the property of the community against the injurious exercise, by any citizen of his own rights. State legislation, strictly and legitimately for police purposes, does not in the sense of the Constitution, necessarily intrench upon ( any authority which has been confided, expressly or by implication, to the Na- tional Government." State police power not delegated to the Federal govern- ment. In the Civil Rights Gases, 109 U. S. 3, L. Ed. 839-844, it is held that the Civil Rigfits Act passed March 1st, 1875, by the federal government is unconstitutional in two sec- tions as applied to the states, because it is not authorized by either the 13th or 14th amendments to the Constitu- tion, and that the 14th amendment is prohibitory only upon the states, and the 13th amendment relates only to slavery and involuntary servitude. There were a number of cases decided in that opinion. One from each of the states, Kansas, California, Missouri, New York; some of them certified up by the federal court, and one taken up on writ of error from the federal court, and the constitu- tionality was the question in all of those cases. The first section provided in effect for the full and equal enjoyment of accommodations in public places of entertainment anoT conveyance by all persons within the jurisdiction of the United States except -subject to the conditions and limita- tions established by law and applicable to all conditions irrespective of race, color or previous servitude. The second section provided that any person who should violate the first section should forfeit and pay the sum of five hundred 85 dollars to the person aggrieved to be recovered in an ac- tion of debt with full costs and also be deemed guilty of a misdemeanor and fined not less than f 500 nor more than flOOO, or imprisoned not less than 30 days or more than one year, with the provision that the- person might elect to sue for the penalty or to proceed with his right® at com- mon law or by statute, and that such election would bar other remedy, outside of the criminal proceedings, and that a judgment for the penalty in favor of the aggrieved party otr upon an indictment would be a bar to either prosecu- tion respectively. The court stated that no one would con- tend that the power to pass such law existed in the consti- tution before the amendments and said : After quoting the 14th amendment and stating that it made void all state legislation against its provisions said : "On the whole we are of opinion, that no counte- nance of authority for the passage of the law in ques- tion can be found in either the 13th or 14th Amend- ments of the Constitution." In Mngler v. Kansas, 123 IT. S. 623-667, requoting from a former decision, it is said : "That power belonged to the states when the Fed- eral constitution was adopted. They did not surren- der it and they all have it now — It rests on the funda- mental principle that every one shall so use his own as not to wrong and injure another." * This makes it clear that it was not the intention of the people to give the police power over to the federal govern- ment in matters within the jurisdictions of the states. The court proceeds to hold that Congress might legislate to counteract state action. The whole opinion rests up- on the theory that Congress had invaded the province of the states in the exercise of their polfce power and in matters not delegated to Congress by the Constitution. 86 a. The Hith amendment not designed to destroy the state's police power. In Barlner v. Connolly, 113 IT. S. 27, L. Ed. 923, it is clearly held that the 14th Amendment is not designed to interfere with the police power of the state. In that case a municipal ordinance prohibited washing and ironing in public laundries within territorial limits from ten o'clock at night to six in the morning, and it was held purely a police regulation within the competency of the ordinary municipality to pass, saying : "It would be an extraordinary usurpation of the authority of the municipality if a federal tribunal should undertake to supervise such regulations." And: < "But neither the Amendment, broad and comprehen- sive as it is, nor any other amendment was designed to interfere with the power of the State, sometimes termed its police power." V. SOME OF THE USUAL CONSTITUTIONAL OB- JECTIONS AGAINST LAWS ABE NOT APPLICABLE TO THIS QUESTION FOR THEY DO NOT APPLY TO THE STATE IF IT STAYS WITHIN REASONABLE, EQUAL, 'AND LAWFUL REGULATIONS OF DAN- GEROUS EMPLOYMENTS. (a) The first ten amendments to the Federal Constitu- tion apply only to the Federal Government and do not re- quire the states to give the jury trial but probably would require such" trial in the Federal Courts. 87 Usual Constitutional Objections that do not Apply to State Action. The objections usually urged against legislation affect- ing changes of the common law in any material portions and particularly this subject are sometimes saicTto violate the Federal Constitution by reason of the following pro- visions : 1. The 5th Amendment providing that no person shall : "Be deprived of life, liberty or property without due process of law ; nor shall any private property be tak- en for public use without just compensation." 2. The 7th Amendment provides that: "In suits at common law where the value in contro- versy shall exceed $20.00, the right of trial by jury shall be preserved and no fact tried by a jury shall be otherwise re-examined in any other court of the Unit- ed States than according to the rules of the common law." All of the provisions contained in the first ,ten amend- ments of the Federal Constitution may be dismissed, with a few brief authoritative citations from the controversy in so far as they respect states, for it is the uniform doctrine of the Supreme Court to hold those amendments to be ob- ligatory upon the Federal government, and not upon the states. In Maxwell v. Dow, 176 U. S. 581 (L. Ed. 597), the court said: "That a jury composed as at common law, of 12 jurors, was intended by the 6th amendment to the Federal Constitution, there can be no doubt." And again: "And as the right of trial by jury in certain suits at common law is preserved by the 7th Amendment, 88 such a trial implies that there shall be an unanimous verdict 01,12 jurors in all federal courts where a jury trial is held." -The court then proceeded to say in effect, that it would seem quite clear that the Utah constitution, under consid- eration, providing for 8 instead of 12 jurors, was not suffi- cient, if it be held that the 6th amendment was applicable to prosecutions of citizens of the United States in state •courts; but with .respect to that constitutional amendment it repeated the often-decided doctrine, as follows : "They (referring to the first 10 amendments) were intended as restraints and limitations upon the pow- ers of the general government, and were not intended to and did not have any .effect upon the powers of the respective states." Again, in TJgTibcmks v. Armstrong, 208 U. S. 481 (L. •Ed. 582 ) , referring to the ,6th and 8th Amendments to the Constitution, the, court says: "The claim rests upon an entire misapprehension of the rights of the plaintiff in error under these amendments. The 6th and 8th amendments do not limit the powers of the states, as has many times been decided." The .Supreme Court was asked to hold that the 14th Amendment of its own force applied the first ten to the states, but refused so to hold. SeeMawwell v. Dow, 176 U. S. 581 (L. Ed. 597). This principle disposes of all of those Federal objections to the administration of laws in the state courts, except un- der the 14th Amendment. 89 Jury Trial Could not be Avoided in Federal Court. Theoretically the Federal Government has no common law; hut, its judges considering a case from a particular state sit with power co-ordinate with the state courts to determine what the common law of that state is as appli- cable to the subject. In Smith v. Alabama, 124 U. S. 465 (L. Ed. 508), the court said: "There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. Wheaton v. Peters, 33 U. -S. 8 Pet. 591 (L. Ed. 1055) . A determination in a. given case of what that law is may be different in a court of the United States from that which prevails in the judicial tribu- nals of a particular State. This arises from the cir- stance that the Courts of the United States, in cases within their jurisdiction, where they are called upon to administer the law of the State in which they sit or by which the transaction is governed, exercise an inde- pendent though concurrent jurisdiction, and are re- quired to ascertain and declare the law according to their own judgment. This is illustrated by the case of W. Y. Cent. R. R. Co. v. Loclcwood, 84 U. S. 17 Wall. 357 (21 L. Ed. 627) where the common law prevailing in the state of NeAv York, in reference to the liability of common carriers for negligence, received a different interpretation from that placed upon it by the judi- cial tribunals of the State, but the law as applied was none the less the law of the State." And again : "There is, however, one clear exception to the state- ment that there is no national common law. The in- terpretation of the Constitution of the United States 90 is necessarily influenced by the fact that its provis- ions are framed in the language of the English com- mon law, and are to be read in the light of its history. The code of constitutional and statutory construction which, therefore, is gradually formed by the judgments of this court, in the application of the Constitution and the laws and treaties made in pursuance thereof, has for its basis so much of the common law as may be implied in the subject, and constitutes a common, law resting on national authority. Moore v. U. S., 91 U. S. ?70." Smith v. Alabama, 124 U. S. 465 (L. Ed. 508-512). The Statutes of the State, by Act of Congress, are Rules of Decision for the Federal Law Courts. Sec. 721 of the Revised Statutes of the United States provides : "Sec. 721. (Laws .of the states, rules of decision.) The laws of the several States, except where the Con- stitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply." See Piatt v. Lecocq, 158 Fed. 723 (8 C. C. A.). There is the further rule that any corporation organized under the Federal law depends upon that law for its ex- istence and therefore may litigate its cases in xhe Federal court. Texas & Pac. Ry. Co. v. Cox, 145 U. S. 593, L. Ed. 829. Any remedy provided must take these facts as the settled law under the Constitution. The laws of the state would be administered in the Fed- eral Court as a rule of decision to determine the right to /recovery and the amount thereof; but the common law injury in the cases prescribed by the Constitution would be tried by a. common law jury. 91 With respect then, to trial by jury, the right exists in Ithe Federal Court, according to the Federal Constitution (and Amendments, and cannot be limited by acts of Con- gress, or of the states. With respect to trial by jury in the state courts, that Is a matter of state action. This makes it clear that the laws of the state on this question will be enforced in the Federal courts as adding to the laws of Congress, provided of course they but po- lice, as distinguished from regulate, interstate commerce. VI. THE FOURTEENTH AMENDMENT TO THE FED- ERAL CONSTITUTION 18 A PROHIBITION UPON THE STATES, NOT UPON THE NATIONAL GOV- ERNMENT. The portion of which reads : "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." (a) The privileges and immunities secured by that in- strument are those which belong to citizens of the United States as distinguished from states, (b) Equal protection of the laws is construed by the Federal Courts as it is by the state courts to permit the reasonable classifications treating those within the class equally. This is no bar to such law. - (c) The due process of law provided by the Fifth Amendment applies only to the Federal G-overnment but 92 in the Fourteenth Amendment it is a prohibition upon the states. (d) The Federal Constitution, however, does not con- trol mere form of procedure in or regulate the practice of state courts. All that it requires is that at some point in the controversy there must he a time and place for the .court to adjudicate the legal liability. (e) It is not taking private property without due pro- cess of law within the constitutional provisions to require dangerous employments to be liable for the risks of the in- jury without any particular fault in the special transac- tions. (f) The jury trial' provided by the state constitutions is the trial of such cases as embrace principles secured by the constitution when it was adopted and not a trial of matters involved only in new laws such as this would be. This amendment of its own force is a prohibition upon the states — not upon the national government. Taking these clauses up separately, what do they mean? Certainly not to abridge the police powers except as to equal, reasonable, and lawful action. a. Privileges and Immunities. It seems to be the, general rule that the privileges and im- munities of citizens of the United States, guaranteed by the Federal Constitution, are the privileges and immuni- tiesgiven.by that instrument, and not the privileges and immunities created by state laws. Von Hoist also says that Cooley, Priaciples, 247, ex- 93 expresses the indisputable view that the adoption of this provision in the Fourteenth Amendment was superfluous inasmuch as the states had not the right before, but from the adoption of the provision it is evident that the privi- leges and immunities of the citizens of the United States and of the state do not exactly correspond and calls atten- tion to the citations of the Federal Supreme Court in the "Slaughter House Cases," 16 Wall. 79, and says that: "In the same case it decided, however, that so far' as the privileges and immunities of states were concerned, their safety and protection are incumbent on the states, and were not put by the Fourteenth Amend- ment under the special care of the federal govern- ment." - Von Hoist Const. Law, 248. The amendment gave no new privileges or immunities to the citizens of the states, but only additional guarantees to those then existing. See Boutwell on the Const., at end of First Cent. Minor v. Hoppersett, 21 Wall. 162, L. Ed. 627. • ■ The office of the United States is limited to the enforce- ment of the duty of the states to secure the equality of im- munities and privileges. U. S. v. Cruiksliank, 92 U. S. 542, L. Ed. 588. It provides that persons in like circumstances, subject to the same law shall be entitled to the same privileges and that the law shall operate equally upon all persons sub- ject to it; and the equal right to resort to the appropriate courts for redress cannot be prohibited. Mo. v. Lewis, 101 U. S. 22-30, L. Ed. 989. Mo. Pac. Ry. Co. v. Mackey, 127 U. S. 205, L. Ed. 107. In Minor v. Hoppersett, 21 Wall. 160, L. Ed. 627, the court then said : 94 "Other proof of like character might be found, but certainly more cannot be necessary to establish the fact that sex has never been made one of the elements of citizenship in the United States. In this respect men have never had an advantage over women. The same laws precisely apply to both. The Fourteenth Amendment did not effect the citizenship of women any more than it did of men. In this particular, therefore, the rights of Mrs. Minor do not depend up- on the amendment. She had always been a citizen from her birth, and entitled to all the privileges and immunities of citizenship. The amendment prohib- ited her privileges and immunities as a citizen of the United States; but it did not confer citizenship on her, that she had before its adoption." But see Midler v. Oregon, 208 U. S. 412. Wherein it is held that the state may regulate hours of labor of women — even though not for men — under the po- lice power. The whole tenor of the United States Constitution shows that the rights which it guarantees are those which existed at the time of its enactment, or those which were express- ly created by it. This makes it evident that it was the understanding &i the people when they adopted this provision that certain rights and privileges existed which they desired to "secure" —not "grant" — to the people of the state. In Mawwell v. Dow, 176 U. S. 581 (L. Ed. 597), .the court discussed the 14th Amendment, and the fact that' there is a citizenship of the United States and of the state, "Which were distinct from each other, dependent upon different characteristics and circumstances in the individual ; that it was only privileges and immuni- ties of the citizen of the United States that were placed by the amendment under the protection of the Fed- eral Constitution, and that the privileges and im- munities of a citizen of a state, whatever they might 95 be, were not intended to have any additional protec- tion by the paragraph in question, but they must rest for their security and protection where they have here- tofore rested."' Maxwell v. Dow, 176 U. S. 581 (L. Ed. 597). The court calls attention to the fact that in the case of Minor v. Hoppersette, 21 Wallace, 162, 22 L. Ed. 627, it was held : "It was held that the right of suffrage was not nec- essarily one of the privileges or immunities of citizen- ship before the adoption of the 14th amendment, and although a woman was in one sense a citizen of the United States yet she did not obtain the right of suf- frage by the adoption of that amendment. The right to vote is a most important one in our form of govern- ment, yet it is not given by the amendment." The court continues to review a number of cases on the question, and, quoting from the case of In re Kemmler, 136 IT. S. 436, L. Ed. 519, said : " 'Protection to life, liberty and property rests pri- marily with the states, and the amendment furnishes an additional guaranty against any encroachment by the states upon these fundamental rights which be- long to citizenship and which the state governments were created to secure. The privileges and immuni- ties of citizens of the United States as distinguished from the privileges and immunities of citizens of the states are, indeed, protected by it ; but these are privi- leges and immunities arising out of the nature and essential character of the national government and granted and secured bv the constitution of the Unit- ed States.' " Later the court said : "There is' no intimation here that among the privi- leges or immunities of a citizen of the United States are the right of trial bv jury in a state court for a state offense, and the right to be exempt from anv trial for an infamous crime, unless upon presentment by a grand jury." Maxwell v. Bow, 176 U. S. 581 (L. Ed. 597) . 96 It is clear then that the right of trial by a jury in a state court is not a privilege or immunity of the United States, but it probably would be in the United States Cir- cuit Court at common law. In the Maxwell case, supra, it was also decided that the adoption of the 14th amendment to the Federal Constitu- tion did not have the effect of making all the provisions contained in the first ten amendments operative in state courts, on the ground that the fundamental rights protect- ed by those amendments are, by virtue of the 14th amend- ment, to be regarded as privileges or immunities of citi- zens of the United States. This being a matter for state action, this question has no practical effect. Equal Protection. Taking up equal protection next, we find another prohi- bition in the above amendment, A thorough study of this important question leaves none in doubt that the equality here meant is equality before the law, not in politics; equality to all similarly situated. See Ymv Hoist Const. Law, 247. The question of equality before the law was the great question between the Plebeians and Patricians in early Rome, and it was at the end of a constitutional struggle of 150 years that the Plebeians gained their equality. , See Morey's Outlines of Roman Law. Art. Enc. Britannica, Tit. Rome. Wells, Short History of Rome. 97 Maine says that the fundamental doctrine that all men are equal is one of a large number of legal maxims which Eoman Juris Consulates considered strictly a juridical maxim ; and it was founded upon supposed law natural. Maine's Ancient Law, 92. In the discussionof the "contract theory" of the state, Grotius, Milton, Hobbes, Locke, Rousseau and all other followers of that school began with one idea — "that in a state of nature all men are equal." See Index "Contract Theory" to. Hooker's Ecclesiastical Policy (1594). t Grotis, De Jure Belle et Pads ( 1625 ) . Milton, Tenure of Kings & Magistrates (1649) . Hobbe's Leviathan, Ch. II of Part III (1651). Locke on Government (1653). Rousseau's Contract Soc. Willoughby, Nature of State. Lowell's Essays on Government. All men are created equal; they are endowed by their Creator with certain inalienable rights, and among those are life, liberty and the pursuit of happiness. Declaration of Independence. Constitution of Nebraska. Constitution of New Hampshire. Constitution of Vermont. Constitution of Virginia — see others. All men, when they form a social compact, are equal in rights. Constitution of Connecticut. Constitution of Florida. Constitution of Oregon. Constitution of Texas. 98 All freemen when they form a social compact, are equal in rights. Constitution of Alabama. Constitution of Arkansas. Constitution of Kansas. Constitution of Mississippi. The same principle is recognized in those foreign states that have modern constitutions, all of which have been formed after our own -system and some of them patterned from its provisions. Constitution of Switzerland. Constitution of Mexico. Constitution of Prussia. Constitution of Italy, etc. "All Swiss shall be equal before the law.'' Constitution of Switzerland, Art. 4. , No person shall be judged by special law or special tri- bunal. Constitution of Mexico. "All Prussians shall be equal before the law." Constitution of Prussia, Art. 4. "All the inhabitants of the Kingdom, whatever their rank or title, shall enjoy equality before the law. All shall equally enjoy civil and political rights." Constitution of Italy, Art. 24. The law should be the same for all, both in protecting and punishing. This equality is asserted to be a self evi- dent truth which existed independently of any human lav,' and before it. Ritchie, Natural Rights, Pages 244-5. 99 It also seems to be the general rule that the matter of equal protection of the laws is. construed by the Federal Court as it is by our own state court, to permit reasonable classifications if all withm the class are treated alike. In Holden v. Hardy, 169 U. S. 366, L. Ed. 780, it is said: "The 14th Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two states separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other no such right. Each state prescribes, its own modes of judicial pro- ceeding. If diversities of laws and judicial proceed- ings may exist in the several states without violating the equality clause in the 14th Amendment, there is no solid reason why there may not be such diversities in different parts of the same, state. "The same subject was also elaborately discussed by Mr. Justice Matthews in delivering the opinion of this court in Hurtado v. California, 110 U. S. 516, 530 (28: 232, 237) . 'This flexibility and capacity for growth and adaption is the peculiar boast and excellence of the common law. * * * The Constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of Eng- lish law and history; but it was made for an unde- fined and expanding future, and for a people gathered and to be gathered from many nations and of many tongues. And while we take just pride in the prin- ciples and institutions of the common law, we are not to forget that in lands where other systems of juris- prudence prevail, the ideas and processes of civil jus- tice are also not unknown. Due process of law, in spite of the absolutism of continental governments, is not alien to that code which survived the Roman Em- pire as the foundation of modern civilization in Eu- rope, and which has given us that fundamental maxim of distributive justice — suum cuique tribuere. There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age.; and as it was the characteristic principle of the 100 ^ommon law to draw its inspiration from every foun- tain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experience of our own situation and system will mould and shape it into new and not less useful forms.' We have seen no reason to doubt the soundness of these views." Holden v. Hardy, 169 U. S. 366. Reasonable Classification Proper. In Atchison, Topeka* & Santa Fe Ry. Co. v. Matthews, 174 U. S. 96 (L. Ed. 909), the Supreme Court held that equal protection of the laws, guaranteed by the 14th Amendment of the Constitution, does not forbid classifi- cation. The fact of inequality produced by classification does not determine its constitutionality. In that case the Kansas statute provided that in an ac-> tion against a railroad company for damages by fire caused by operating the railroad, the plaintiff need only establish the fact that the fire complained of was caused by operat- ing the railroad and the loss and his damages, and that such proof should be prima facie evidence of negligence, and al- lowing the plaintiff a reasonable attorney's fee. The court held that that was not invalid as denying equal protection of the law. Upon this the court said: "The equal protection of the laws which is guaran- teed by the Fourteenth Amendment does not forbid classification. That has been asserted in the strongest language. Barbier v. Connolly, 113 U. S. 27 (28 L. Ed. 823). * * * "But neither the amendment — broad and compre- hensive as it is — nor any other amendment, was de- signed to interfere with the power of the state, some- times termed its police power, to prescribe regulation to promote the health, peace, morals, education, and good order of the people, and to legislate so as to in- 101 crease the industries of the state, develop its resources, and add to its wealth and prosperity. From the very necessities of society, legislation of a special character, having these objects in view, must often be had in cer- tain districts, such as for draining marshes and irri- gating arid plains. Special burdens are often neces- sary for general benefits — for supplying water, pre- venting fires, lighting districts, cleaning streets, open- ing parks, and many other objects. Regulations for these purposes may press with more or less weight upon one than upon another, but they are designed, not to impose unequal or unnecessary restrictions up- on anyone, but to promote, with as little inconvenience as possible, the general good. Though, in many re- spects, necessarily special in their character, they do not furnish just ground of complaint if they operate alike upon all persons and property under the same circumstances and conditions. Class legislation, dis- criminating against some and favoring others, is pro- hibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons simi- larly situated, is not within the amendment," And again : "It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. * * * Indeed, the very idea of classification is that of inequality so that it goes without saying that the fact of inequality in no manner determines the matter of constitution ality." Atchison, Topelca & Santa Fe Ry. Co. v. Matthews, 174 U. S. 96 (L. Ed. 909-915). So here the responsibilities may press more heavily upon one than another, but this design will be equality. In Mallet n. North Carolina, 181 U. S. 589 (L. Ed. 1015), the court had under consideration a law of North Caroli- na providing that the state in a, criminal case might have the allowance of an appeal from one district and not from 102 another was not a denial of the equal protection of the laws, guaranteed hy the Fourteenth Amendment, saying: "In Missouri v. Lewis, 101 U. S. 23, sub nom ; Bow- man v. Leims, 25 L. Ed. 989, it was held that, by the 14th amendment of the Constitution of the United States, a state is not prohibited from prescribing the jurisdiction of the several courts, either as to their territorial limits, or the subject-matter, amount, or finality of their respective judgments or decrees. * * * "Each state has the right to make political subdivis- ions of its territory for municipal purposes, and to reg- ulate their local government. As respects the admin- istration of justice, it may establish one system of courts for cities and another for rural districts, ont system for one portion of its territory and another sys- tem for another portion." Mallet v. North Carolina, 181 U. S. 589 (L. Ed. 1015-20). Validity of Mining Inspection Law. In Consolidated Coal Co. v. Illinais, 185 U. S. 203, L. Ed. 872, the court had under consideration an act of 1897 in the state of Illinois, with respect to coal mines, which act ex- empted all mines (from the operation of the act if they did not have to exceed five employees ; it also confided to the inspectors some discretion as to the number of times that each mine should be inspected, and to regulate the charges therefor to be made by the mine owner. It was held that the act was not repugnant to the Four- teenth Amendment, the court saying at page 875 : "The regulation of mines and miners, their hours of labor, and the precautions that shall be taken to in- sure their safety, health, and comfort, are so obviously within the police power of the several states that no citation of authorities is necessary to vindicate the general principle. * * * It is true that the act of 1897 amended the former law of 1895, by limiting its application to coal mines, 'where more than five men 103 are employed at any one time.' This is a species of classification which the legislature is at liberty to adopt, provided it be not wholly arbitrary or unreason- able. * * * In the case under consideration there is no attempt arbitrarily to select one mine for inspec- tion, but only to assume that mines which are worked upon so small a scale as to require only five operatives would not be likely to need the careful inspection pro- vided for the larger mines, where the workings were carried on upon a larger scale or at a greater depth from the surface, and where a much larger force would be necessary for their successful operation. It is quite evident that a mine which is operated by only five men could scarcely have passed the experimental stage, or that precautions necessary in the operation of cnal mines of ordinary magnitude would be required in such cases. There was clearly reasonable foundation for a discrimination here." Again on page 877 : "In enacting a law with regard to the inspection of mines, we see no objection, in case the legislature find it impracticable to classify the mines for the pur- poses of inspection, to commit that power to a body of experts who are not only experienced in the opera- tion of mines, but are acquainted with the details nec- essary to be known to make a reasonable classification, although it may affect the amount of fees to be paid by the mine owners." Consolidated Goal Go. et al, v. Illinois, 185 U. S. 203, L. Ed. 873. This is a binding precedent for reasonable classification and inspection. State Police Power Allows Classification on Reasonable Basis. But, of course, as all other states, Minnesota has a po- lice power, and it applies to the question of employer and employe in dangerous employments. 104 Our court has held valid a law requiring Street Rail- ways to make enclosure to secure motormen from weather exposures. In State v. Dow S. timith, 58 Minn. 35, in de- ciding this question our court said : "Any one acquainted with the extreme cold of much of the weather in this climate between the 1st of No- vember and the 1st of April, and who knows, as every- body does, that the motorman on an electric car is obliged to stand in one place, always on the alert, his whole attention given to the means of controlling the motive power and the brake, and to looking out' ahead, and unable, with due regard to his duties, to give attention to protecting himself from the cold, must appreciate that, when going at the rate of eight or nine miles an hour, perhaps against a head wind, and with the mercury below zero, the position of the motorman is one not merely of discomfort, but of ac- tual danger to health, and sometimes to life, and the tendency of which is to disable him to some extent to perform his duties in the way that care to safety of his passengers and of travelers on the street requires. "It has never been questioned that the police power of the state extends to regulating the use of dangerous machinery, with a view to protecting, not only others, but those who are employed to use it; and if it be conceded, as it must be, that the state may intervene by regulations in such a case, we do not fee why it may not in such a case as this. "The act is within the police power. "When a subject is within that power, the extent to which it shall be exercised, and the regulations to effect the desired end, are generally wholly in the dis- cretion of the legislature. The legislature might in this case have required the use of the prescribed en- closure only at such times when the cold reached a certain degree, or when storms prevailed, but it was thought fit to make sure of the result aimed at by cov- ering the time of year when extreme cold and bitter storms may occur at any time; and that was within its exclusive province. "The objection that this is class legislation is based on the fact that the act-is confined to street cars pro- pelled by cable, steam, or electricity, and does not in- 105 elude street cars drawn by mules and horses, or car- riages or wagons; and it is assumed that here is an attempt at purely arbitrary classification for the pur- pose of the act. "The evil sought to be remedied does not exist in case of the slowly-going mule or horse car, or carriage or wagon, to the same degree as in the case of cable, electric, or steam cars. "But, where ar. evil exists in a variety of cases, it is a sufficient ground for classification in legislating, so as to include some and exclude others, that in the former the evil can be remedied, while in the latter it cannot be. '"The man in control of the cable, electric, or steam railway car may be boxed in without impairing his power of control in the slightest degree; but to box in the driver of a horse or mule car, or of a stage-coach or carriage or wagon, separating him from his ani- mals, while of course, it could be done, would bring about greater evils than those sought to be remedied. The difference in this respect between cars included in this act and those not included is, such as, to justify difference in legislating." This power has likewise been extended to protect fish and animals. State v. Mrozinski, 59 Minn. 465; State v. Roe- man, 58 Minn. 393 ; State v. Tower Lumber Co., 100 Minn. 38, and to the regulation of foods, State v. Horgan, 55 Minn. 183, and oil inspection, Willis v. Standard Oil Co., 50 Minn. 290; State ex rel City of Minneapolis v. Great Northern Railway, 98 Minn. 380-389, State ex rel City of Dulutlv v. Northern Pacific Railway Company, 98 Minn. 429-432. The opinions in the railway cases above mentioned clear- ly show that the general police powers are exercised under the state system. In Doboins v. Los Angeles, 195 U. S. 223 (169) , the court again, speaking of these various matters, with respect to municipal legislation, requotes from H olden v. Hardy, to 106 show that it is simply a qu.es.tion of whether the statute has been adopted in the exercise of a reasonable discretion, or whether the action is a mere excuse for an unjust discrimi- nation or the oppression or spoliation of a particular class, saying: "The state has undoubtedly the power, by appropri- ate legislation, to protect the public morals, the pub- lic health, and the public safety ; but if, by their neces- sary operation, its regulations looking to either of those ends amount to a denial to persons within its jurisdiction of the equal protection of the laws they must be deemed unconstitutional and void." Dobbins v. Los Angeles, 195 U. S. 223 (L. Ed. 169- 175). This means all within the same conditions and classes. It may be taken then as the settled law of the Supreme Court, and, we think, equally so of the states, that a law necessary as a police regulation to protect employes, may be based on classification of the dangers of the employ- ment, if the classifications are based upon reasonable and not arbitrary grounds, and apply equally to all of the same class similarly situated. There is no difficulty about complying with this principle. Due Process of Law. The due process of law provided by the Fifth Amendment applies, of course, to the Federal government, but as con- tained in the 14th Amendment it is a prohibition upon the states. This is a matter then that must be understood. The Constitution of Minnesota provides : "Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property or 107 character" (Const. Art. I, Sec. 8). We must not overlook the fact that this, too, is one of several constitutional pro- visions the intention of which was to secure each person within the state from injuries inflicted by others, and to grant him redress in case of such injuries. In short, the liability is enacted for a prevention, the redress is given for compensation. We must alike remember that this is the only provision, aside from the general scheme of govern- ment, which expressly secures, by specific enactment, per- son, property, or character through remedial laws. It is the outgrowth of many centuries, it had a well defined meaning at the time of the adoption of this constitution ; it meant to "secure" — not "grant'' — redress for injuries, as the law then viewed them, and into that law we must look for its interpretation. Von Hoist. Const. Law. 288-9. Submit the question to history and we see the truth. Under the Roman Law there were three legal maxims; "to live honestly, to hurt no one, to give every one his due." Sandars Justinian (Hammond), L. I., Title I., Parag. 3, p. 68. Among the delicts was what Romans called injuria. When specifically used this term had reference to an in- jury done to the person or reputation, as in the case of an assault or .slander. The Praetorian law softened the rigor .of the XII Tables, and allowed the injured person to re- cover such compensation as the nature of the case required. The injured party could bring either a civil or criminal ac- tion against the offender, and not only was the perpetrator of the injury liable, but any person who counselled him was also liable, and the damages might be aggravated by pecu- liar circumstances. McKen~ie ibcd, 261-2. 108 In England a portion of Magna Gharta was : "No freeman shall be taken or imprisoned, or dis- seized or out-lawed or banished, or anyways destroyed, nor will we pass upon him, nor will we send upon him, unless by the lawful judgment of his peers or by the law of the land. We will sell to no man, we will not deny to any man, either justice or right.'/ Hurd Habeas Corpus, 65-73. Spooner, in his essays' on trial, makes an historical ,and critical examination of the chapter and says that its legal import is : "No freeman shall be arrested, or imprisoned, or de- prived of his freehold, or his liberties, or free customs, or, be outlawed, of exiled, or in any manner destroyed (harmed) , nor will we (the king) proceed against him, nor send any one against him, by force or arms, un- less according to (that is in execution of) the sen- tence of his peers, and (or 'or' as the case may re- quire), the common law of England (as it was at the time of Magna Gharta, in 1215) ." Hurd on Habeas Corpus, 73. Spooner's Trial by Jury, 49. In 1660, Pufendorf said : "In the series of absolute duties, or such as obliged men antecedently to any Human Institution, this seems with justice to challenge the first and noblest place. THAT NO MAN HUET ANOTHEE, AND THAT IN CASE OF ANY HUET OE DAMAGE DONE BY HIM, HE FAIL NOT TO MAKE EEPAE- ATION." Pufendorf, Law of Nature & Nations, Bk. Ill, Ch. 1. After specifying that the "judicial power of the United States shall be vested in one Supreme Court," etc., the Con- stitution of the United States proceeds to say : "The judi- cial power shall extend to all cases in law and equity, aris- ing under this constitution, the laws of the United States, 109 and treaties made, or which shall be made, under this au- thority," etc. Const, of U. S., Art. Ill, Sec. 1 and 2. The Ordinance of 1787 provided that the inhabitants of the Northwest Territory should be entitled to "judicial pro- ceedings according to the course of the common law." See Ordinance of 1787, Art. II. The various sections of Art. I, of the Constitution of Wis- consin, during the time it included Minnesota, secured the equality of citizens, liberty of the press, right of redress through the courts for injuries or wrongs committed. The Organic Act of Minnesota provided that the inhabitants should be possessed of the same rights as they were given under the Laws of Wisconsin at that time; the schedule of the Minnesota Constitution provided for a continuance of those rights during the period of transformation; the Con- stitution of Minnesota included the same provisions; they are the fundamental law of the state, today. The constitutions of almost all the states have provis- ion for remedies of the law and whether they say "in laws," "according to law of land," "due course of law," "all courts shall be open, and every man for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law," it matters not; they mean the same. They are collected in Hough's American Constitutions, Vol. II. But the Federal Constitution does not control mere forms of procedure m or regulate the practice of state courts. In Mawwell v. Dow, 176 U. S. 581 (L. Ed. 597), it is said : 110 "A state cannot deprive a person of his property without due process of law, but this does not neces- sarily ,imply that all trials in the state courts, affect- ing the property of persons, must be by jury. This re- quirement of the constitution is met if the trial is bad according to the settled course of judicial proceed- ings. * * * "Due process of law is process due according to the law of the land. This process in the states is regu- lated by the law of the states. Our power over that law is only to determine whether it is in conflict with the supreme law of the land — that is to say, with the constitution and laws of the United States made in pursuance thereof — or with any treaty made under the authority of the United States." Maxwell v. Dow, 176 U. S. 581 (L. Ed. 597). It is thus sure that due process may be had according to the regular state practice without a jury trial. In a recent case, in speaking of procedure, the court said: "It does not follow, however, that a procedure set- tled in English law at the time of the emigration, and brought to this country and practiced by our ances- tors, is an essential element of due process or la-p. If that were so, the procedure of the first half of the 17th century would be fastened upon the American jurisprudence like a 'straight jacket, only to be un- loosed by constitutional amendment." Twining, v. New Jersey, 211 U. S. 78. And: " 'That (said Mr. Justice Matthews, in the same case,, p. 529 ) would be to deny every quality of the law but its age and to render it incapable of progress or improvement.' " Twining v. New Jersey, 211 U. S. 78. It then proceeds to call attention to the fact that among the notable decisions are those denying jury trial, both in criminal and civil cases, and then says : Ill "The cases proceed upon the theory that, given a court of justicewhich has jurisdiction and acts not ar- bitrarily but in conformity with the general law upon evidence and after inquiry made, with notice to the parties affected and opportunity to be heard, then all the requirements of due process of law, so far as it re- lates to procedure in court and methods of trial and character and effect of evidence, are complied with." The opinion then cites the case of Iowa Central v. Iowa, 160 U. S. 393, which says : "But it is clear that the 14th amendment in no way undertakes to control the power of the state to deter- mine by what process legal rights may be asserted or legal obligations enforced, provided the method of procedure adopted gives reasonable notice and affords fair opportunity to be heard before the issues are de- cided." , The opinion then re-quotes from Louisville & Nashville R. R. Co. v. Schmidt, 177 U. S. 230, L. Ed. : "It is no longer open to contention that the due pro- cess of law clause of the 14th Amendment to the Con- stitution of the United States does not control mere forms of procedure in state courts, or regulate practice therein." Twining r. W. J.. 211 IT. S. 78 (L. Ed. 97). Further on in the opinion it said: "Due process requires that the court which assumes to determine -the rights of the parties shall have juris- diction and that there shall be notice and opportunity for hearing given the parties. * * * Subject to these two fundamental conditions, which seem to be universally prescribed in. all systems of law estab- lished by civilized countries, this court has up to this time sustained all state laws, statutory or judicially declared, regulating procedure, evidence and methods of trial, and held them to be consistent with due pro- cess of law." 112 The court proceeds to follow that view with a holding that there must be sufficient caution to guard him against the arbitrary action of government. It makes quotations from its own opinions in the past to the same effect. The effect then of this portion of this amendment is to deny to the state the right of taking away the citizens' property without due process of law and it must give the party reasonable notice and a fair hearing before decision. This, however, relates to process or procedure only, as the words would indicate; not to the right to take property if a constitutional law so provides Upon complying with such process. The state's procedure is for the states so long as their acts are not arbitrary. There must be some time and place and a court to ad- judicate the law of liability if desired. Fault not Necessarily the Basis of Liability Mere. In Freund's Police Power, Section 631, the author says: "If the rule of absolute liability is held to be un- 'Constitutional, it must be on the ground that justice and equality forbid that a person be required to make good the loss of another, unless some fault or culpa- bility can be imputed to him. This is the position taken by the courts of Alabama, Montana, Wyoming and Utah. But while the common law does require fault of some kind as a general principle, it has always recognized • some exceptions (trespass of cattle, fire, etc. ) and it 'cannot be said that the rules of the com- mon law represent the only and final conclusions of justice. The principle that inevitable' loss should be borne not by the person on whom it may happen to fall, but by the person who profits by the dangerous business to which the loss is incident, embodies a very 113 intelligible idea of justice, and which seems to "be in accord with modern social sentiment. Moreover, the rule of absolute liability is established in our law in the case of fires caused by locomotives and has been sanc- tioned by the United States Supreme Court (165 U. S. 180). It also underlies the rule of respondeat su- perior, since the employer cannot relieve himself for liability for acts done by the servant within the scope of his employment, by proof of the greatest possible •care in the selection of the servant. Logic and con- sistency, therefore, demand that liability irrespective of negligence should not be denounced as unconstitu- tional. The required element of causation may read- ily be found jn the voluntary employment of danger- ous instruments or agencies." The case of Chicago Rock Island & Pacific Railway Com- pany v. Zernecke, 183 U. S. 582, L. Ed. 339, was an action brought by the administratrix of the estate of Zernecke, deceased, to recover damages, under a statute of the State of Nebraska, for the death of Zernecke, caused by the de- railment of the train of defendant upon which Zernecke was a passenger. The statute in question provided as follows : "Every railroad company, as aforesaid, shall be lia- ble for all damages inflicted upon the person of pas- sengers, while being transported over its road, except in cases where the injury done arises from the crim- inal negligence of the person injured, or when the in- jury complained of shall be the violation of some- ex- press rule or regulation of said road actually brought to his or her notice." Neb. Oomp. Laws, 838. The defendant in its answer denied the. plaintiff's alle- gation of negligence, and alleged that the derailment was caused by some person unknown to the company, and not in its employment or under its control who wilfully, mali- ciously and feloniously removed and displaced from the track certain spikes, nuts, angle-bars, etc., and otherwise 114 tore up and destroyed the track. The defendant upon the trial offered witnesses to sustain the allegations of its an- swer. This testimony upon objection by the plaintiff was rejected. • In this case the court said : "The specific contention is that the company is de- prived of its defense, and not only declared guilty of negligence and wrong doing without a hearing, but adjudged to suffer without-wrong doing, indeed even for the crimes of others, which the company could not have forseen or have prevented. "Th\is described the statute seems objectionable. Regarded as extending the rule of liability for injury to persons which the common law makes for the loss of or injury to things, the statute seems defensible. And it was upon this ground that the supreme court of the state defended and vindicated the statute. The court said, 'The legislation is justifiable under the po- lice power of the state, so it has been held. It was enacted to make railroad companies insurers of the safe transportation of their passengers, as they were of baggage and freight ; and no good reason is sug- gested why a railroad company should be released from liability for injuries received by a passenger while being transported over its line, while the corpor- ation must respond for any damages to his baggage or freight.' "Our jurisprudence affords examples of legal liabil- ity without fault, and the deprivation of property without fault being attributable to its owner. The law of deodands was such an example. The personifi- cation of the ship in admiralty law is another. Oth- er examples are afforded in the liability of the hus- band for the torts of the wife — the liability of a mas- ter for the acts of his servants." This case has been followed in GMcago, B. I, & P. v. Eaton, 183 U. S. 589, and in Chicago, Burlington & Quincy B. B. v. Wolfe, 187 U. S. 638. Judged by the question of actual fault, such law could hardly find favor; but judged as a system of general lia- bility because of general conduct of business necessarily causing specific cases which cannot be specifically antici- pated, the law seems to have splendid precedent in the au- thorities just cited. Indeed, there is conduct which so far as the state is concerned is hazardous to life and limb; the pursuit of the conduct is dangerous to society and spe- cific individuals ; if the state does not prohibit, it must reg- ulate; if regulation does not do, then compensation is next best. Minnesota Constitution. The bill of rights is similar in the different states, gener- ally speaking. It is provided by Section 7 of Article 1 of the Constitu- tion of Minnesota that no person shall be "Deprived of life, liberty or property without due process of law." Due Process of Law m the ^States. In State v. Billings, 55 Minn. 467, the court said : "The first inquiry is as to what is 'due process of law.' In Bardwell v. Collins, 44 Minn. 97, (46 N. W. 315), it was said that no complete or exhaustive defi- nition of the term had ever been attempted by the' courts, because it was incapable of any such definition. All that could be done was to lay down certain, general principles, and apply them to the facts of each case as they arise. Mr. Webster's exposition of the words, 'law of the land,' and 'due process of law,' viz: 'The general law, a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. * * * But it may be stated gen- erally that due process of law requires that a party shall be properly brought into court, and that he shall have an opportunity, when there, to prove any. fact 116 which, according to the constitution and -the usages of the common law, would be a protection to him or to his property. People v. Board of Supervisors, 70 N. Y. 228. Due process bf law requires an orderly pro- ceeding adopted to the nature of the case, in which the citizen has an opportunity to be heard, and to de- fend, enforce, and- protect his rights. A hearing, or an opportunity to be heard, is absolutely essential." In the case of State ex- rel Barter Asphalt Paving Company v. District Court of St. Louis County, 90 Minn. 457, the conditions were peculiar. The company had been awarded a contract for paving a portion of a street in Duluth. The contract provided for percentage payments as the work progressed. The work progressed until practically finished ; the company made request of the board of public works to make an estimate, which it did. It certified the estimate and the council passed a resolu- tion ordering the payment and directing a draft to be drawn on the city treasurer. The company asked the city clerk to give an order on the treasurer and he refused. Duluth had a charter provision allowing appeals to be taken to the court in such cases by the tax payers. The respective quotations will show the views taken by the court, 90 Minn. 461-4 : "We have no doubt that the provision of the char- ter requiring the presentation of all claims to the city council for adjustment and allowance was an appro- priate subject for charter supervision, and from that it would seem to follow logically that it was also prop- er to continue the subject, and provide the manner in which the determination of the city council allowing or disallowing a claim might be removed to the dis- trict court for judicial investigation and determina- tion ; and we hold without further remark that it was within the power of the framers to embody in the char- ter the provisions under consideration. 117 "It is contended that the provisions of the charter are invalid, because they do not constitute due process of law. The charter provision was taken almost whol- ly from G. S. 1894, 644, providing for similar appeals from the board of county commissioners, which has been in force in this state for forty years or more, and the validity of which has never been questioned, so fai as our information extends. On the contrary, the stat- ute has been resorted to on numerous occasions, both by persons having claims -against counties and by the county attorney at the instance of taxpayers. Thom- as v. County Commrs. Scott Co., 15 Minn. 254 (324) ; Kroshus v. County of Houston, 46 Minn. 162, 48 N. W. 770; Davis v. County of Le Sueur, 37 Minn. 491, 35 N. W. 364. The statute is a very servicable one, and provides an orderly method of settling claims and demands against counties without the necessity of the formal commencement of an action in court, and the provision allowing the appeal at the instance of tax- payers was intended as a safeguard; and to assist in the protection of the public funds. Claims against such bodies must be presented to their administrative officers, and by them passed upon, from whose decis- ion an appeal to the district court is provided, where, without formality of procedure, the matter is brought to trial and speedy determination." ''Every person is entitled to a certain remedy in the law for the redress of all injuries or wrongs he may receive in his person, property, or character. But he is not entitled to any particular remedy. Due process of law means an orderly proceeding adapted to the na- ture of the case, in which the citizen has an opportuni- ty to be heard to defend, enforce, and protect his rights; and, where such opportunity is, granted by the law, the citizen cannot complain of the procedure to which he is required to conform. "In a case like that under consideration, where a claim is made against a city or county, the presenta- tion of the claim to the administrative officers for their action is the initiation of proceedings to enforce its payment. By the presentation the claimant adopts that method of enforcing his rights. He is bound to follow up his claim, and pursue the remedy pointed out by the charter or statutes for its enforcement, and is af- 118 forded ample opportunity for a^ complete investiga- tion and hearing upon the merits of his claim. And, though no notice of appeal is required to be served upon him, he is apprised by the law of the manner of talcing such appeals ; and, unless he wholly aband- ons his claim after its allowance by the city, he will have actual knowledge that it has been taken. This answers every purpose, and is, 'due process of law.' "The administrative, officers, the board of county commissioners or the city council, in passing upon and allowing or disallowing the claims, act quasi judicial- ly. They determine the legal rights of the parties, and there is no force to the suggestion that the charter is invalid because it provides for an appeal from a non- ' judicial to a judicial tribunal." In speaking of a decision of the U. S. Land Department in Lamson v. Coffin, 102 Minn. 493-500, our court said : "That was the only tribunal qualified or with juris- diction to determine the existence of the facts essen- tial to the alleged right, and its conclusion therein precludes further inquiry by the courts." In Murray v. Hobolcen, etc., Co., 18 How. 280 (L. Ed. 372) , the Supreme Court also said : "It is true, also, that even in a suit between pri- vate persons to try a question of private right, the ac- tion of the executive power upon a matter committed to its determination by the constitution and laws is conclusive." It would seem that the state can require claims against it to be presented first to another department than the courts ; if a system were worked out by which the claims could be assumed by the -state this could be done here, prob- ably. We will leave that for further investigation. ' It is sufficient here and now to say that fault is not nec- essarily the basis of liability in dangerous employments. 119 Trial by Jury. It may be said, that the right of trial by jury is abridged. To this there are two answers : 1. The amount being fixed quite definitely by law, and arbitration first required, the right of trial by jury could still exist as it does now if the agreement were not reached. 2. If the right of action thus created should be held to be one not in existence at the time of the adoption of the constitutional provision, then that provision would not ap- ply- In Board of County Com. v. Morrison, 22 Minn. 178, the court said : "Whether the tax payer is entitled to a jury trial in these proceedings is an important question, as it af- fects both the power of the state to collect its revenues by a speedy and convenient mode, and the security of the citizen against oppression and illegal acts. It is claimed that because legal rights are involved and are to be determined, it is a proceeding at law, and that in all proceedings at law the right to a trial by jury is guaranteed by the constitution." Board of County Com. v. Morrison, 22 Minn. 178-9. And after citing many special proceedings such as those in Eminent Domain, Assignment of Property for High- ways, Appointing Guardians, Summary Convictions for Petty Offences, etc., the court said : "The general principle upon which these cases were decided was that the several constitutions intended only to preserve the right of trial by jury in those cases where it existed at tho adoption of the respective constitutions, and that rights of persons or property coming in question in those controversies in which, be- fore that time, the right was not recognized do not 120 come within the meaning of the constitutional guar- anties." Board of County Com, v. Morrison, 22 Minn 178- 181. At the time of the adoption of our constitution no such risk as would be here involved— outside of fault— was a legal right. This would not be a common law liability but a statutory one. The common law liabilities for fu- ture may be repealed. Martin v. Pittsburg, etc. Co., 203 U. S. 284 (L. Ed. 184). This has been partially done every time the liability has been lessened or changed. VII. THIS SORT OF LAW WOULD WOT TAKE PRI- VATE PROPERTY FOR PUBLIC USE BY REASON OF TWO PRINCIPLES. (a) Under our special compact the private owner has no ownership except that which is subject to reasonable control siich as this would be. (b) The private individual has no right to complain of the taking of only so much property as is an aid to gov- ernment operation by reason of the last above principle. Would this take private property for public use? The prohibition in the Federal Constitution against tak- ing private property for public use, is like the trial by jury not material in the state court for it refers to the Federal government; but the bill of rights of the states generally cover this same point. The constitution of Minnesota 121 Art I, Sec. 12, provides : "Private property shall not be taken, destrdyed or damaged for public use, without just compensation therefor first paid or secured." All Property Held Subject to the Social Compact. In Mugler v. Kansas, 123 U. S. 623-665, it is said with re- spect to deprivation of property without due process : "It has never been regarded as incompatible with the principle, equally vital, because essential to the peace and safety of society, that all property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the com- munity." See cases under Subd. II, supra. In Knox v. Lee and Parker v. Dams, 79 U. S. 457 (L. Ed. 307) the supreme court, at p. 307, said: "Indeed, the whole history of the government and of congressional legislation has exhibited the use of a very wide discretion, even in times of peace, and in the absence of any trying emergency, in the selection of the necessary and proper means to carry into effect the great objects for which the government was fram- ed, and this discretion has generally been unques- tioned, or if questioned sanctioned by this court. This is true not only when an attempt has been made to execute a single power specifically given, but equally triie when the means adopted have been appropriate to the execution, not of a single authority, but of all the powers created by the constitution." In McCullou-gh v. Maryland, 4 Wheaton, 416, L. Ed. 605, in the holding that Congress had not exceeded its powers in creating the national bank Chief Justice Marshall mid: "Let the end be legitimate; let it be within the scope 122 of the Constitution, and all means which are appro- priate, which are plainly adapted to that end, which are not prohibited but consistant with fhe letter and spirit of the Constitution are constitutional." In the Knox case, the court further said: "It may be conceded that Congress is not authoriz- . ed to enact laws in furtherance even of a legitimate end, merely because they are useful, or because they make the government stronger. There must be some relation between the means and the end; some adapt- edness or appropriateness of the laws to carry into execution the powers created by the constitution. But when a statute has proved effective in the execution of powers confessedly existing, it is not too much to say that it must have had some appropriateness to the execution of ^those powers. The rules of construc- tions heretofore adopted, do not demand that the re- , lationship between the means and the end shall be di- rect and immediate. Illustrations of this may be found in several of the cases above cited. The char- ter of a bank of the United States, the priority given to debts due the government over private debts, and the exemption of federal loans from liability to state taxation, are only a few of the many which might be given. The case of Bank v. Fenno, 8 Wall. 533 ( 75 U. S. XIX 482) presents a suggestive illustration. There a tax of ten per cent on state bank-notes in circula- tion was held constitutional, not merely because it was a means of raising revenue, but as an instrument to put out of existence such a circulation in competi- tion with notes issued by the government. There,, this court speaking through the Chief Justice avowed that it is the constitutional right of Congress to pro- vide a currency for the whole country ; that this might be done by coin or United States notes, or notes of na- tional banks; and that it cannot be questioned Con- gress may constitutionally secure the benefit of such a currency to the people by appropriate legislation. It was said that there can be no question of the power of this government to emit bills of credit, to make them receivable in pavment of debts to itself; to fit them for use bv those who see fit to use them in all the transactions of commerce; to make them a currency 123 uniform in- value and description, and convenient and useful for circulation. Here the substantive power to tax was allowed to be employed for improving the currency. It is not easy to see why if state bank notes can be taxed out of existence for the purposes of indi- rectly making United States notes more convenient and useful for commercial purposes, the same end may not be secured directly by making them a legal ten- der." Knox i\ Lee and Parker r. Dams, 79 U. >S, 457, L. Ed. 307. In United States r. Lynah, 188 IT. S. 445 (L. Ed. 539) the court said: '•There have been many cases in which a distinction has been drawn between the taking of property for public uses and a consequential injury to such proper- ty by reason of some public work. In the one class the law implies a contract, a promise to pay for the property taken, which, if the taking was by the general government, will uphold an action in the court of claims ; while in the other class there is simply a tor- tious act doing injury over which the court of claims has no jurisdiction. Thus in Northern Transporta- tion Company r. Chicago, 99 IT. S. 635, 25 L. Ed. 836, the 'city, duly authorized by statute, constructed a tunnel along the line of La Salle Street, and under the Chicago River. The Company claimed that it was de- prived of access to its premises by and during the construction. This deprivation was not permanent but continued only during the time necessary to complete the tunnel, and it was held that there was no taking of the property but only an injury, and that a tempo- rary injury thereto. In the course of the opinion, af- ter referring to the PumpeJly Case, 13 Wall. 166, 20 L. E<1. 557, and Eaton v. Boston, C. & M. R. Co., 51 N. H. 504, 12 Am. Rep. 147, we said (p. 642,. L. Ed., p. 338) : 1 " 'In those cases, it was held that permanent flood- ing of private property may be regarded as a "tak- ing. 1 ' In those cases there was physical invasion of real estate of the private owner, and a, practical ouster of his possession. But in the present case there was 124 no such invasion. No entry was made upon the plain- tiff's lot. All that was done was to render for a time its use more inconvenient." b. There is no Vested Bight Contrary to the Social Compact. In the case of Gibson v. United States, 166 U. S. 269, L. Ed. 995, the Supreme Court said : "The 5th amendment to the Constitution of {he United States provides that private property shall 'not .be taken for public aise without just compensa- tion.' Here, however, the damage of which Mrs. Gib- son complained was not the result of the taking of any part of her property whether upland or submerged, or a direct invasion thereof, but the incidental conse- quence of the lawful and proper exercise of a govern- mental power. "The applicable principle is expounded in Northern Transp. Co. v. Chicago, 99 U. S. 635, L. Ed. 336. In that case plaintiff being an owner of lands situated at the intersection of La Salle Street, in Chicago, with the Chicago River, upon which it had valuable ware- house and dock accommodations with a numerous line of steamers accustomed to land at that dock, was in- terrupted in his use thereof by the building of a tunnel under the Chicago river, by authority of the state leg- islature, in accomplishing which work it was necessary to tear up La Salle Street, which precluded plaintiff from access to his property for a considerable time; also to build a coffer dam in the Chicago river which excluded his vessels from access to his docks ; and such an injury was held to be damnum aczque injuria. This court said again s peaking through Mr. Justice Strong : " 'But acts done in the proper exercise of govern- mental powers and not directly encroaching upon pri- vate property, though their consequences may impair its use, are' universally held not to be a taking with- in the meaning of the constitutional provision. They do not entitle the owner of such property to compen- sation from the state or its agents, or give him any 125 right of action. This is supported by an immense weight of authority. Those who are curious to see the decisions will find them collected in Gooley on Consti- tutional Limitations, p. 542 and notes." In the case of Vanderburgh) v. City of Minneapolis, 98 Minn. 329, the court said : "And it cannot be doubted that where private rights are invaded by legislative authority in the interests of the general public, there is a taking or damaging . for public use, within the meaning of the constitution, entitling the injured party to compensation, except perhaps in cases where an exercise of the police power is involved." In the case of State v. Board of County Commissioners, 98 Minn. 89, on page 94, the court said : "A further doubt also arises whether the county or its officers could be held responsible in damages for work done for the public good in its governmental ca, parity under the police power or power of eminent do- main {Lien v. Board of Co. Commrs. of Norman Coun- ty, 80 Minn. 58, 82 N. /W. 1094) and whether such dam- ages be not merely incidental to an authorized act." In Adair v. United States, 208 TJ. S. 161, it is said : "This court has said that 'in every well ordered so- ciety, charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may, at times, under the pressure of great dangers, be subjected to such restraint, to be en- forced by reasonable regulations, as the safety of the general public may demand." Adair v. V. S., 208 U. S. 161 (L. Ed. 436). If the police power could not make reasonable regula- tions the state could not exist. Indeed it would seem that substantially all the direct benefits of organized society are based on this limitation of personal rights that the public may benefit. This seems 126 especially true in a government based as is ours on the compact theory. In Conn, the court said : "The principle of the common law, that for a law- ful, reasonable and careful use of property, the owner cannot he made liable, is not so wrought into the con- stitution or into the very idea of property that it can- not be departed from by the legislature where protec- tion to persons or to property may require it." Orissell v. Housatonic R. R. Co., 54 Conn. 447. In the case of Johnson v. City of St. Louis, 172 Federal, 40 (8 C. C. A.) the court said : "As -we understand the decisions of that court (Missouri) this is their result: The word 'damaged' in that Constitution includes damage to adjoining property from the establishment or the change of a grade of a street or alley, from the reduction of a street or alley to an established grade, and from the pollution of the waters of a creek witl sewage, and for these damages recoveries may be had thereunder, although they were lawfully inflicted. On the other hand, the word 'damaged' in that Constitution ex- cludes damage to adjoining property by depreciation of its value, by obstruction of access to it, by noise, by smoke, by cinders, by the cracking and falling of the walls of buildings from the removal of lateral sup- port when these injuries are caused either by the open- ing of a stone sidewalk and basement wall and the erection of poles therein, or by the construction and operation of a fire engine house, or by the construc- tion and operation by steam of a railroad upon the street just in front of a lumber factory, or by the lay- ing of a sewer or a pavement in an alley lower than the foundation of the buildings upon the abutting property whereby their lateral support is weakened and they become cracked and injured. The case at bar falls within the latter class. The plan of the sew- er in question here was not necessarily dangerous to the plaintiff's property. The city had the right to make and use it. The excavation for it was to be 127 made, and it was made wholly within the alley. The plaintiff knew it was to be made and was aware of the danger that his building would settle and crack therefrom in time to have propped and protected it, and according to the decisions of the Supreme Court of Missouri his damage was damnum absque injuria, and he was entitled to no compensation for it under the Constitution of that state.'' This whole question relates to the use of property; it may be machinery or the right of contract — each equally property — but it is nevertheless, a limitation upon the use. This limitation is based upon the theory that the use is dangerous and the consequences must follow as a legal duty. Judged by the usual rule of following moral obli- gations with human law this legal duty is a proper one. Judged by the implied ■condition that law only recognizes the ownership and use of property by virtue of the social compact, the owner is not an absolute one except in the private sense — his rights are always subservient to the necessary public control. When he enters or adopts the social compact he impliedly so agrees. 128 VIII. THE FOURTEENTH AMENDMENT SECURES THE LIBERTY OF CONTRACT BETWEEN EMPLOYER AND EMPLOYE EXCEPT WHEN LIMITED BY THE POLICE' POWER; THE EXERCISE OF THE POLICE POWER RESTS IN THE LEGISLATIVE DEPART- MENT; THE COURTS INTERFERE TO UPHOLD THE CONSTITUTION ONLY TO PREVENT ARBI- TRARY POWER FROM BEING EXERCISED UNDER COVER OF THE POLICE POWER. (a) The courts recognize that the employer and the em- ploye do not stand on an equality in making their con- tracts. (b) The police power is used to regulate insurance of private property and the control of employer and em- ploye. (c) No owner of property has the right to claim that a contract previously in existence has been changed in its obligations by reason of the exercise of the police power because the implication of the power always went with that contract as a matter of law. (d) The police power can neither be legislated nor con- tracted away. This is the great Federal Constitutional question with respect to [Workmen's Compensation Acts. Can we say that employer and employee must stand by regulations up- on this question. In my opinion, Yes. The police power— the public power to protect the in- terests of humanity for public preservation is the safety valve here. 129 Freedom of Contract is Liberty. In Adair v, U. 8., 208 U. S. 161 (L. Ed. 436), Mr. Jus- tice Harlan re-quotes fru-m Lu;j:nir r. Kcu: York, 198 U. S. 45, as follows : "The general right to make a contract in relation , to his business is part of the liberty of the individ- ual protected by the 14th amendment of the federal constitution." Later on the court says : ''Under that provision no state can deprive any per- son of life, liberty or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right." Adair v. U. S., 208 U. S. 161 (L. Ed. 436). The court held in that case that the constitution was violated in this respect by an Act of Congress interfering with the right to discharge employes from membership in a labor union, as there was no reasonable connection be- tween that union and the commerc3 clause; but the court was not unanimous. Mr. Justice McKenna and Mr. Justice Holmes wrote dis- . senting opinions, and contended that it would be for the value of all concerned, and within the powers and prin- ciples recognized by that court, to recognize the organiza- tion of the laboring-man with respect to interstate com- merce; Mr. Justice McKenna saying : "We are dealing with rights exercised in a quasi- piiblic business, and therefore subject to control in the interest of the public." Mr. Justice Holmes said: "But I could not pronounce it unwarranted if Con- gress should decide that to foster a strong union was for the best interest, not only of the men but of the rail- roads and the country at large." 130 In Gray v. Building Trades Council, 91 Minn. 171-182, our court said: "The constitution of our state guaranties liberty to every citizen, and a certain remedy in the laws for all injuries or wrongs which he may receive in his per- son, property, or character, and the rights so guaran- teed are fundamental, and can be taken away only by the law of the land, or interfered with, or the en- joyment thereof modified, only by lawful regulations adopted as necessary for the general public welfare. * * * A person's occupation or calling, by which he earns a livelihood and endeavors to better his con- dition, and to provide for and support himself and those dependent upon him, is property within the meaning of the law, and entitled to protection as such ; and as conducted by the merchant, by the capitalist, by the contractor or laborer, is, aside from the goods, chattels, money, or effects employed and used in .con- nection therewith, property in every sense of the word." Liberty of contract not absolute when applied to em- ployer and employee m dangerous employments. In Holden v. Hardy, 169 U. S. 366 (L. Ed. 780), the Su- preme Court held that the right of contract may be limited by the state police power with respect to the hours of la- bor in underground mines. After a somewhat extended discussion of what is meant by the police powers of the state and the decisions resting thereon, and the fact that the changes under our system .must be made to co-operate with the advance of law to meet the changing conditions of society, the court said : "Of course it is impossible to forecast the character or extent of these changes, but in view of the fact that, from the day Magna Gharta was signed to the present moment, amendments to the structure of the law have been made with increasing frequency, it is impossible to suppose that they will not continue, and the law be 131 forced to adapt itself to new conditions of society, and, particularly, to the new relations between employers and employees, as they arise. * * * 'This right of contract, however, is itself subject to certain limitations which the state may lawfully im- pose in the exercise of its police powers." Holden v. Hardy, 169 U. S. 366 (L. Ed. 780). See pp. 145148 In Atchison, etc. Ry. Go. v. Matthews, 174 U. S. 96 (L. Ed. 909), in discussing a statute of Kansas providing that in fire cases it should be sufficient to establish that. they were occasioned by the operation of a railroad, the loss and the damage, to make a prima facie case of negligence, the court said : "But neither the amendment— broad and compre- hensive as it is — nor any other amendment was de- signed to interfere with the power of the state, some- times termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people, and to legislate so as to in- crease the industries of the state, develop its resourc- es, and add to its wealth and prosperity." Atchison, etc., Ry. Go. v. Matthews, 174 U. S. 96 L.Ed. 909). In the case of Johnson v. Scntihcm Pacific Ry. Go., 196 U. S. 1, it was held that the equipment of cars with auto- matic couplers might be required by congress. The Chief Justice said, at p. 17 (L. Ed. 369) in that opinion : t "The primary object of the act was to promote the public welfare by securing the safety of employees and * travelers, and it was in that aspect remedial, while for violations a penalty of $100 recoverable in a civil ac- tion, was provided for, and in that respect it was pe- nal. But the design to give relief was more dominant than to inflict punishment, and the act might well be held to fall within the rule applicable to statutes to prevent fraud upon the revenue, and for the collection 132 of customs, — that rule not requiring absolute strict- ness of construction." Johnson v. Southern Pacific Co., 196 U. S. 1 (L. Ed. 369). Interference with Right of Contract Because of Inequality of Persons. See pp. 166-168 In Knoxville Iron Co. v. Harbison, 183 U. S. 13 (L. Ed. 55), the court had under consideration a provision for the, redemption of store orders in money under the Ten- nessee Act of March 17, 1889, requiring all persons who issued such orders to employes^ in payment of wages, to re- deem them in money on any regular pay day, or at any time within thirty days after they were issued ; it held the act was not unconstitutional as an arbitrary interference with the right of contract, but was a legitimate exercise of the general legislative power, as well as of the police power. The court quotes somewhat from the Tennessee decis- ions, and then says at page 61 : "The supreme court of Tennessee justified its con- clusion by so full and satisfactory a reference to the decisions of this court as to render it unnecessary for us to travel over the same ground., It will be sufficient to briefly notice two or three of the latest cases. "In Holden v. Hardy, 169 U. S. 366, L. Ed. 780, 18 Sup. Ct. Eep. 383, the validity of an act of the state of Utah, regulating the employment of working- men in underground mines, and fixing tl\e period of employment at eight hours per day, was in question. There, as here, it was contended that the legislation deprived the employers and employees of the right to make contracts in a lawful way and for lawful pur- poses; that it was class legislation, and not equal or uniform in its provisions ; that it deprived the parties 133 of the equal protection of the laws, abridged the priv- ileges and immunities of the defendant, as a citizen of the United States, and deprived him of his property and liberty without due process of law. But it was held, after full review of the previous cases, that the act in question was a valid exercise of the police pow- er of the state, and the judgment of. the supreme court of Utah, sustaining the legislation, was affirmed. - "Where a contract of insurance provided that the in- surance company should not be liable beyond the ac- tual cash value of the property at the time of its loss, and where a statute of the state of Missouri provided that, in all suits brought upon policies of insurance against loss or damage by fire, the insurance company should not be permitted to deny that the property in- sured was worth at the time of issuing the policy the full amount of the insurance, this court held that it was competent for the legislature of Missouri to pass such a law, even though it places a limitation upon the right of contract. Orient Ins. Go\. v. Daggs, 172 U. S. 557, L. Ed. 552, 19 Sup. Ct. Rep. 281. "In St. Louis, I. M. & fif. R. Go. v. Paul, 173 U. S. 401, L. Ed. 746, 19 Sup. Ct. Rep. 419, a judgment of the supreme court of Arkansas sustaining the valid- ity of an act of the legislature of that state, which pra- vided that whenever any corporation or person en- gaged in operating a railroad should discharge, with or without cause, any employee or servant, the unpaid wages of any such servant then earned should become due and payable on the date of such discharge with- out abatement or deduction, was affirmed. It is true that stress was laid in the opinion in that case on the fact that, in the Constitution of the state, the power to amend corporation charters was reserved to the state, and it is asserted that no such power exists in the pres- ent case. But it is also true that, inasmuch as the right to contract is not absolute in respect to every matter, but may be subjected to the restraints demand- ed by the safety and welfare of the state and its inhab- itants, the police power of the state may, within de- fined limitations, extend over corporations outside of and regardless of the power to amend charters. Atch- ison T. & fif. F. ff. Co. v. Matthews, 174 U. S. 96, L. Ed. 909, 19 Sup, Ct, Rep, 609." 134 Knoxville Iron Go. v. Harbison, 183 U. S. 13 (L. Ed. 55-61). This case not only interferes with the right of private contract in a negative way, but affirmatively requires -the employers to pay in cash rather than in property, if the cash be demanded. This is quite a strong precedent for the doctrine of affirmative action regulating payment to em- ployes which could not be based on any other theory than police protection. If the state did not have an interest in saying that proper contracts or obligations were made it had no business in this controversy. In the ease of Harbison v. Knoxville Iron Go v , 53 S. W. 955, the court said : rt In other words, the effect of the act is to convert into cash obligations such unpaid merchandise orders, etc., as may be presented for money payment on a regu- lar pay day, or as much as 30 days after issuance. Un- der the act the present defendant may issue weekly orders for coal as formerly, and may pay them in that commodity, when desired by the holder; but, instead of being able, as formerly to compel the holder to ac- cept payment of such orders in coal, the holder may, under the act, compel defendant to pay them in money. In this way, and to this extent the defendant's right of contract is affected. Under the act, as formerly, every employe of the defendant may receive the whole or a part of his wages in coal orders, and may collect the orders in coal, or transfer them to some one else for other merchandise or for money. His condition is bettered by the act, in that it naturally enables him to get a better price for his coal orders than formerly, and thereby gives him more for his labor; and yet, al- though the defendant may not, in that transaction, re- alize the expected profit on the amount of coal called for in the orders, it in no event pays more in dollars and cents for the labor than the contract price. "The scope and purpose of the act are thus indicat- ed. The legislature evidently deemed the laborer at 135 some disadvantage under existing laws and customs, and by this act undertook to ameliorate his condition in some measure by enabling him', or his bona fide transferee at his election, and at a proper time, to de- mand and receive his unpaid wages in money, rather than in something less valuable. Its tendency, though slight it may be, is to place the employer and employee upon equal ground in the matter of wages, and, so far as calculated to accomplish that end, it deserves com- mendation. * * * "Furthermore, the passage of the act was a legiti- mate exercise of police power, and upon this ground also the legislation is well sustained. The first right of a state, as of a man, is self-protection, and with the state that right involves the universally acknowl- edged power and duty to enact and enforce all such laws, not in plain conflict with some provision of the state or federal constitution, as may rightly be deemed necessary or expedient for the safety, health, morals, comfort, and welfare of its people. * * * "This power is an important and comprehensive one, and its application must be expected and allowed to expand, and take in new subjects from time to time, as trade and business advance, and new condi- tions arise. The scope of its exercise, within the bound already mentioned, is limited only by the requirement that it shall not arbitrarily and unreasonably affect the citizen in his life, liberty and property. * * * "It is readily seen from the analysis already given that the limitation placed upon the right of contract by this act is not arbitrary and oppressive, but entire- ly just and reasonable. While in some sense qualify- ing certain contracts of the employer, it in no sense works a great hardship upon him. It only requires that in certain events he shall pay the wages of his employe in money, rather than in something less de- sirable. The legislature, as it thought, found the em- ploye at a disadvantage in this respect, and by this enactment undertook to place him and the employer more nearly upon an equality. This alone commends the act, and entitles it to a place on the statute book as a valid police regulation. * * * "It is neither prohibitory nor penal; not special, but general; tending towards equality between em- 136 ployer and employe in the matter of wages ; intended and well calculated to promote peace and good order, and to prevent strife, violence, and bloodshed. Such being the character, purpose, and tendency of the act, we have 'no hesitation in holding that it is valid, both as general legislation, without reference to the state's reserved police power, and also as a wholesome regu- lation adopted in the proper exercise of that power." Hwroinson v. Knoxville Iron Co., 53 S. W. 955-59. When the case of LocJmer v. N. Y., 198 U. S. 45 (L. Ed. 937), came before the court, it was held that the New York law limiting the hours of employment in bakeries was an arbitrary interference with contract and therefore could not be sustained as a police regulation, because the. bakers' trade was not unhealthy and they were not wards of the state any more than other laborers and could not be limit- ed in their right of contract. The court said : "Of course, the liberty of contract relating to labor includes both parties to it. The one has as much right to purchase as the other to sell labor. * * * "We think the limit of the police power has been reached and passed in this case. * * *■ "The state therefore, has power to prevent the in- dividual from making certain kinds of contracts, and in regard to them the Federal Constitution offers no protection. If the contract be one which the state, in the legitimate exercise of its police power, has the right to prohibit, it is not prevented from prohibiting it by the 14th Amendment.* * * "It is manifest to us that the limitation of the_ hours of labor as provided for in this section of the statute under which the indictment was found, and the plaintiff in error convicted, has no such direct re- lation to, and no such substantial effect upon, the health of the employee, as to justify us in regarding the section as really a health law. It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his em- ployees (all being men, sui juris), in a private busi- ness, not dangerous in any degree to morals, or in 137 any real and substantial degree to the health of the employees. Under such circumstances the freedom of master and employee to contract with each other in relation to their employment, and in denning the same, cannot be prohibited or interfered with, without violating the Federal Constitution." ' Lockner v. N, Y., 198 U. S. 45 (L. Ed. 937-44). The above quotation clearly leaves room for such legis- lation if dangerous to either health or body. This case, although by a bare majority opinion as to whether that was a dangerous employment, nevertheless treated the question in all respects as being the settled doc- trine that the state cannot interfere with the right of pri- vate contract merely because it would desire to regulate employer and employe if there were no police power neces- sary. It seems to us difficult for any person bound as we are with the duty of a neutral investigation of this sub- ject to overlook the weighty arguments of the dissents in the above decision. Notwithstanding the Lockner decision, the case of Mid- ler v. Oregon, 208 U. S. 411 (L. Ed. 551) , held that the Ore- gon statute limiting the hours of labor of women in laun- dries was valid, although if it related to me it might not, by saying : "Even though all restrictions on political, personal, and contractual rights were taken away, and she stood, so far as statutes were concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection ; that her physical structure and a proper discharge of her maternal functions — having in view not merely her own health, but the well be- ing of the race — just'fy legislation to protect her from the greed as well as the passion of men. The limita- tions which this statute places upon her contractual powers, upon her rights to agree with her employer as to the time she shall labor, are not imposed solely for 138 her benefit, but also largely for the benefit of all. Many words cannot make this plainer." 'Mutter v. Oregon, 208 U. S. 411 (L. Ed. 551-556). With respect to the limitations upon the right of con- tract, the court said : "It is undoubtedly true, as more than once declared by this court, that the general right to contract in re- lation to one's business is part of the liberty of the in- dividual, protected by the 14th Amendment to the Fed- eral Constitution; yet it is equally well settled that this liberty is not absolute and extending to all con- tracts, and that a state may, without conflicting with the provisions of the 14th Amendment, restrict in many respects the individual's power of contract. Without stopping to discuss at length the extent to which a state may act in this respect, we refer to the following cases in which the question has been con- sidered : Allgeyer v. Louisiana; 165 U. S. 578, L. Ed. 832, 17 Sup. St. Rep. 427; Holden v. Hardy, 169 U. S. 366, L. Ed. 780, 18 Sup. Ct. Rep. 383; Lockner v. New York, supra." Midler v. Oregon, 208 IT. S. 411 (L. Ed. 551-555). TKe Police Power Applied to Contracts for Property In- surance. In the interests of the police power the state may pro- vide that the contract of fire insurance shall be so regulat- ed as to prevent insurance companies from showing that the value of the property destroyed after insurance before the fire occurred. This could only be on broad grounds of public good. It was decided in Insurance Co. v. Dagg, 172 U. S. 55. (L. Ed. 552), where the court said: "In Minneapolis & St. L. By. Company v. Beckwith, 129 U. S. 26 (L. Ed. 585) , a law of Iowa making a class of railroad corporations for special legislation was sustained. 139 (3) " 'What it is for a state to deprive a person of life, liberty, or property without due process of law' is not much nearer to precise definition today than it was said to be by Mr. Justice Miller in Davidson v. New Orleans, 96 U. S. 97 (L. Ed. 616). "The process 'of judicial inclusion and exclusion' has proceeded, and yet this court, in Holden v. Hardy, 169 U. S. 366 (L. Ed. 780), again declined specific defi- nition. Mr. Justice Brown, speaking for the court, said : 'This court has never attempted to define with precision the words 'due process of law,' nor is it nec- essary in this case. It is sufficient to say that there are certain immutable principles of justice which in- here in the very idea of free government, which no ■ member of the Union may disregard, — as, that no man shall be condemned in his person or property without due notice and an opportunity of being heard in his own defense.' These principle were extended to the right to acquire property and to enter into contracts, with respect to property ; but it was said 'This right of contract, however, is itself subject to certain limi- tations which the state may lawfull impose in the ex- ercise of its police powers." " Insurance Co. p. Daggs, 172 U. S. 563 (L. Ed. 552-5). See St. Louis Iron Mountain, etc-, Ry. Co. v. Paul, 173 U. S. 404 (L. Ed. 746). c. All Contracts are Made Subject to the Police Power. In Beer Company v. Massachusetts, 97 U. S. 25, in a liquor case the court held that all rights are held subject to the police power of the state and that the legislature may provide for the discontinuance of that which is in- jurious to the health, notwithstanding individuals or cor- porations may thereby suffer inconvenience, saying : "If the public safety or the public morals required the discontinuance of any manufacture or traffic the 140 hand of the legislature cannot be stayed from provid- ing for its discontinuance by any incidental inconven- ience which individuals or corporations may suffer. All rights are held subject to the police power of the state." See Mugler v. Kansas, supra. The court repeated in that opinion, what it has laid down in other cases, this caution : "Of course we do-not mean to lay down any rule at variance with what this court has decided with regard to the paramount authority of the Constitution and laws of the United States relating to the regulation of commerce with foreign nations and among the sev- eral states or otherwise." L. Ed. 593-4. In Holden v. Hardy, 169 U. S. 366, in speaking of re-. forms likely to come in the law with respect to employer and employe the court said : "That while the cardinal principles of justice are immutable, the methods by which justice is adminis- tered are subject to constant fluctuation, and that the Constitution of the United States which is necessarily to a large extent inflexible and exceedingly difficult of amendment should not be so construed as to /de- prive the states of the power to so amend their laws as to make them conform to the wishes of the citizens ais they may deem best for the public welfare without bringing them into conflict with the supreme law of the land." After reciting that it would be impossible to forecast the character and extent of such changes but that they had come from Magna Charta down, said : "It is impossible to suppose that they will not con- tinue and the law be forced to adapt itself to new con- ditions of society and particularly to the new regula- tions between employers and employes as they arise." With respect to the right of contract it said : "This right of contract, however, is itself subject to 141 certain limitations which the state can lawfully im- pose in the exercise of its police powers. While this power is inherent in all governments it has doubtless been greatly expanded in its application during the past century owing to an enormous increase in the number of occupations which are dangerous." Ee-quoting from Commonwealth v. Alger, 7 Cush. 84, to show that every holder of property under organized society holds it'under the implied liability that his use of it may be so regulated as to protect others in the enjoyment of their property, and in the rights of the community, the re- quotation continues : "All property in this commonwealth as well that in the interior as that bordering on tide waters is de- rived directly or indirectly from the government, and held subject to those general regulations which are necessary to the common and general welfare. Eights of property like all other social.and conventional rights are subject to such reasonable limitations in their en- joyments as will prevent them from being injurious and to such reasonable restraints and regulations es- tablished by law as the legislature under the govern- ing and controlling power vested in them by the Oon- v stitution may think necessary and expedient." Continuing the court said : "This power legitimately exercised could never be limited by contract nor bartered away by legislation." The majority opinion in the case of Lochner v. New York, 198 U. S. 45 refers to Holden v. Hardy as one of the cases wherein the court has treated the police powers with liberal construction, but the Loclmer case although holding against the validity of that law admits the rule to be that both property and liberty are held on such reasonable con- ditions as may be imposed by the governing power of the state in the exercise of those (police) powers, and with such conditions the Fourteenth Amendment was not de- 142 signed to interfere, and later on in the opinion said : ' "The state, therefore, has power to prevent the in- dividual from making certain kinds of contracts, and in regard to them the federal Constitution offers no protection." The reasonable control of moral conduct, health provis- ions and bodily protection have always been conceded to stand above individual rights of conduct. Organized so- ciety is charged with general security and protection. It must use good judgment to ascertain the necessities and execute the remedies. The individual just act in subser- vience to this protection and within this judgment, if such it be as distinguished from arbitrary action. The state may provide the remedy. Indeed in Rolden v. Hardy the court said : "These employments when too long pursued the leg- islature has judged to be detrimental to the health of the employes, and so long as there are reasonable grounds for believing that this is so, its decision upon this subject cannot be reviewed by the federal courts." At page 57 the court said : "This is not a question of substituting the judg- ment of the court for that of the legislature. If the act be within the power of the state it is valid although the judgment of the court might be totally opposed to the enactment of such a law, but the question would still remain: Is it within the police power of the •state, and that question must be answered by the court." See cases under subdivision — herein, holding that prop- erty is held subject to the resumption of this right. A thief is not immune from restraint by the bill of rights, the sufferer from a contagious disease cannot go unre- strained to pursue his individual happiness or liberty; the murderer cannot go unpunished because his body would 143 be hurt by execution, and they ean only claim due process of law. It is true that the thoughtless employer and em- ployee would dislike to be restrained for ±he general good but he who suffers from contagious disease is equally free from fault, yet equally dangerous in action. In the inter- ests of the public he must be restrained or limited in his liberty and individual rights. The rights of his property are thereby invaded but only to the extent that the state determines necessary in the interests of public health. We might drive men to war for the public good ; we might re- strain them from leaving the state or the government in times of war; the right of habeas corpus might be sus- pended in time of war; military systems may be substi- tuted for civil authorities in time of war. All these things are unusual restraints upon individual liberty and civil rights but they are done, they are upheld, and necessarily must be so when proper circumstances arise for the pro- tection of the public good. This must remain so long as the government is able to preserve its own existence. It is upon this theory that the court is able to protect and pre- serve this power, and to hold as it did in Muller v. Oregon, 208 U. S. 412, L. Ed. 551, that while the liberty of contract is a property right of the individual "Yet it is equally well settled that this liberty is not absolute and extending to all contracts, and that a state may without conflicting with the provisions of the Fourteenth Amendment restrict in many respects the individual's power of contract." With respect to fees it was said in the case of McLean v. Denver & Rio Grande Ry., 203 U. S. 39, L. Ed. 78: "The exercise of the police power may and should have reference to the peculiar situation and needs of the community." 144 And again : "The law being otherwise valid, the amount of the inspection fees is not a judicial question; it rests with the legislature to fix the amount and it can only pre- sent a valid objection when it is so unreasonable and disproportionate to the services rendered as to attack the good faith of the law." In the case of Consolidated Goal Go. v. Illinois, 185 U. S. 202, L. Ed. 872, the court held that where the legislature paid an inspector his own fees and then allowed him to de- termine the number of times he should examine miles on a sliding iscale, the money to be turned over by him to the treasurer, the law was not objectionable, saying: "We know of no reason why the legislature should deprive itself of the best obtainable evidence of the facts it seeks to make determinative of these two ques- tions." In the case of State v. Smith, 58 Minn. 35, in requiring the Street Railway Company to protect its motormen, the court said : "It has never been questioned that the police power of the state extends to regulating the use of dangerous machinery, with a view to protecting, not only others, but those who are employed to use it." Police Power can Neither oe Legislated nor Contracted Away. There is another line of cases which clearly shows the extent of the police power, and that is the line which viti- ates contracts, made, or which subsequently become con- trary to the police power. There is no vested interest based on such contract saf^ against it. 145 In Stone v. Mississippi, 101 U. S. 814, L. Ed. 1079-80-81, in the lottery case where the legislature had granted a char- ter to a company for 25 years in consideration of a certain sum in cash and a subsequent constitutional provision was adopted declaring that the legislature should never author- ize any lottery or the sale of lottery tickets, etc., the court said: "All agree that the Legislature cannot bargain away the police power of the state. 'Irrevocable grants of property and franchises may be made if they do not impair the supreme authority to make laws for the right government of the State; but no legislature can curtail the power of its successors to make such laws as they may deem proper in matters of police.' Metropolitan Board of Excise v. Barrie, 34 N. Y. 657; Boyd v. Alabama, 94 U. S. 645." And again : "But the power of governing is a trust committed by the People to the government, no part.of which can be granted away. The People, in their sovereign ca- pacity, have established their agencies for the preser- vation of the public health and the public morals, and the protection of public and private rights. These several agencies can govern according to their discre- tion, if within the scope of their general authority, while in power, but they cannot give away nor sell the discretion of those that are to come after them, in respect to matters the government of" which, from the very nature of things, must 'vary with varying circum- stances.' They may create corporations, and give them, so_to speak, a limited citizenship; but as citi- zens, limited in their privileges, or otherwise, these , creatures of the government creation are subject to such rules and regulations as may from time to time be ordained and established for the preservation of health and morality. "The contracts which the Constitution protects, are those that relate to-propertv rights, not governmen- tal." 146 If we recognize this principle the supposed constitution- al objections fade away. In N. P. By. Co. v. Duluth, 98 Minn. 429, a street had been laid out after the railway was built ; afterwards a via- duct became necessary; the city of Duluth demanded that the Ey. Co. construct and maintain that viaduct ; the com- pany denied its liability so to do; a compromise was reached by which the Eailway Company paid |50,000 to- ward the expenses, the city f23,000, and the city agreed to maintain it forever. The structure got out of repair and the city repudiated its contract and demanded of the Eailway Company that it bear the expense. The Supreme Court of Minnesota sus- tained the right of the city so to do. A like case, more elaborated, discussed in the court be- low was that of State ex rel City of Minneapolis v. G. N. By. Co., 98 Minn. 380. In the latter case it was said : "It involves an exercise of the police power, and the inquiry is whether such a requirement is a proper ex- ercise of that power. It is unnecessary to enter into an extended discussion to show the extent to which the legislature may go in the exercise of this govern- mental prerogative. The property, rights, and liber- ty of the citizen are to be enjoyed in subordination to the general public welfare, and all reasonable regu- lations for the preservation and promotion thereof are uniformly sustained by the courts. 'Eights of property, like all other social and conventional rights are subject to such reasonable limitations in their en- joyment as shall prevent them from being injurious, and to such reasonable restraint and regulations, es- tablished by law, as the legislature, under the govern- ing and controlling power vested in them by the con- stitution, may think necessary and expedient.' * * * "The reasonable limits of the exercise of the power are not readily denned, but generally speaking it ex- tends to all matters where the general public welfare, 147 morals, and health of the community are involved. Butler v. Chambers, 36 Minn. 69, 30 N. W. 308." State em rel City of Minneapolis v. G. N. By., 98 Minn. 380-389. In requoting from a Wisconsin decision as to the in- creased tendency to require railways to protect their cross- ings, the Minnesota court said : " 'It needs no extension of well settled principles to reach this conclusion. But if it did, the increase of railroad operations, the growth of population and so- cial and business activities, with consequent increas- ing dangers to persons and property, might reasonably warrant the extension. This tendency of. modern de- velopment is in the direction of greater, rather than more restricted, use of police power, and necessarily so in order to meet the new dangers, and increase of old dangers, constantly occurring as natural incidents of advancing civilization.' " State ex rel City of Minneapolis v. G. N. By. Co., 98 Minn. 380-92. In the Duluth case the Minnesota court said : "Of course, contracts with municipalities ought to be enforced as contracts between individuals are en- forced, but the authorities are uniform that a munici- pal corporation cannot contract away the right of the public to enforce proper police regulations. All at- tempts to do so have been held void by the courts." - State ex rel City of Duluth v. N. P. By. Co-, 98 Minn. 429-432. These decisions were vigorously fought by the railways and without avail before the Supreme Court of the United States. The case of N. P. v. Duluth, 208 U. S. 583 (L. Ed. 630), was decided the same day as the Mutter case, and the Virginia Club case. The court in the N: P. case said : 148 _ "But the exercise of the police power cannot be limited by contract for reasons of public policy; nor can it be destroyed by compromise; and it is imma- terial upon what consideration the contracts rest, as it is beyond the authority of the state or the munici- pality to abrogate this power so necessary to the public safety." N. P. Ry. Co. v. State ex rel City of Duluth, 208 IT. S. 581 (L. Ed. 630-7). The Virginia case is reported as Cosmopolitan Club v. Commonwealth of Virginia, 208 U. S. 378 (L. Ed. 536). In that case the state had granted a charter to the Club. The charter gave the Club the power to sell liquor. The state subsequently passed a law prohibiting^ the sale of liquor by clubs and providing that their charters might be revoked therefor. The Club's Charter was revoked by the courts of Virginia under that subsequent law. The Club, of course, claimed it was against its contract rights contained in its charter from the state. The Supreme Court assumed that the charter contained a contract, but said: "It would be extraordinary if the legislative depart- ment of a government charged with a duty of enacting, such laws as may promote the health, the morals, and the prosperity of the people, might not, when unre- strained by constitutional limitations upon its au- thority, provide, by reasonable regulations, against the misuse of special corporate privileges which it lias granted, and which could not except bv its sanction, express or implied, have been exercised at all." Cosmopolitan Club v. Virginia, 208 U., S. 376 (L. Ed. 536-39). The state has the authority to compel an employer to pay up his employe without delay when a discharge is made. In dangerous employment it can make the employer 149 stand the expense of inspection ; it can limit the hours of labor; it can require safety appliances; it can compel the employer to pay the wages in money instead of goods at a profit; it can penalize the failure to furnish good machinery or guard its dangers ; it can remove the defense of contrib- utory negligence; it may increase the duties if not arbi- trarily done. Why can it not change the theory of duty and recovery when the public safety and security demand it, acting reasonably, and hot arbitrarily? IX. IT IS THEN SIMPLY A QUESTION FIRST OF WHETHER AN ACT IS WITHIN THE POLICE POW- ER OR WHETHER IT IS AN ARBITRARY ACTION; IF THE FORMER, THE CONSTITUTION MUST BEND TO IT; IF NOT, THEN NOT. It does not seem to be very material whether the require- ments be positive or negative except in the means of en- forcement ; if a business becomes so dangerous as to need regulation the state can regulate it by requiring a reason- able compliance to prevent, or a reasonable compensation for the results. X. THE ACTION OF THE STATE MUST NOT BE AR- BITRARY. (a) The common law was not made to meet the present conditions and is totally inadequate. (b) The law has not kept apace with industry. (c) The employe carries this risk now. 150 t (d) It is a great temptation to perjury, on both sides. (e) The employer not satisfied. (f ) It is unsatisfactory to the public. State action must not be arbitrary but reasonable. No one can read the foregoing precedents in full without concluding that the question of what is dangerous to the community is first for the legislature, if it acts within all other constitutional limits the binds the courts unless it uses the police power as a mere cloak for arbitrary action. Holden v. Hardy, 169 U. S. 366. Loclcner v. New York, 198 U. S. 45. Midler v. Oregon, 208 U. S. 412. Would a workmen's compensation act changing the pres- ent theory of liability from that of negligence or fault of the employer to that of a- risk of the industry or industrial insurance be a reasonable or an arbitrary legislative act? In the opinion of the writer such a change would be rea- sonable. a. The Present System. The theory of recovery, at the present time, at common law, is, generally speaking that the employer has done, or left undone, something for which he is at legal fault. A duty imposed by law in favor of the employe or the gen- eral public including him, a violation of that duty, and an injury as a result without any intervening efficient cause must'all concur. The employe, upon the other hand, must have violated no duty, assumed no risk, committed no neg- 151 ligence contributing to the accident, and the injury must not result from the act of a fellow-servant. This last feature has been in a measure modified with respect to certain kinds of industries, such as railroading, by statute; it has in some instances been relieved by judici- al interpretation; and all obstacles to the plaintiff have frequently been enhanced at the hands of Courts and more often lessened by the hands of juries. Probably the pi-esent justification of the -civil jury sys- tem is partially due to its tendency to apply rules of hu- manity rather than those of logic or law ; but courts some- times withhold cases of doubtful liability from the jury, that logic and law may counter-balance the "over humanity of jurors." There is, too, in some courts, at least a tend- ency to recognize a day of more liberal allowances when- ever verdicts are upheld. Assuming that a reasonably safe place to work and com- petent servants are furnished, the employe has no better right to recover for injuries due to the course of employ- ment than has a stranger who is not a trespasser. Indeed the employer may owe a much higher duty to some others, like passengers. He may owe a less duty to the employe where the work is assumed with knowledge of the danger- ous employment or in case of negligence of a fellow ser- vant. Indeed this disadvantage is so great in favor of employes that where a statute was passed in the state of Pennsyl- vania relieving the'railroad companies of liability, in cases where employes could not recover, it took a decision of the Supreme Court of the U. S. to uphold that statute. The lines of law are often closely, and not always un- fairly drawn, the results uncertain and expensive to both sides and attendant with much vexatious delay. 152 Origin of the System. It is not to be wondered that the present system is found to be inadequate to the present exigencies. Perhaps more than in any other line of private law the conditions of so- ciety have outgrown the peculiar growth of the common law except as it has been replaced by judicial interpreta- tion and legislative acts covering peculiar elements. It has been the history of law, generally speaking, that it has three great epochs : First. The common law of custom, based upon the ob- servance of certain general rules and customs of conduct so long that "the mind of man runneth not to the con- trary." Second. The equity of conscience — the theory by which the rigid rules of the common law are blended and ob- structed to respectively meet the peculiar complex condi- tions of a growing society. Between the basis of a common law and the system of equity, there is theoretically no gap. The system of equity begins ahead of the end of the com- mon law; it obstructs its rigid features, blends its harsh rules, adds to its deficiencies, yet theoretically it follows the law and does not pretend to supersede it in theory up- on a subject like this usually left to law remedies. Each of these processes, in the course of government, is largely declared and enforced by judicial decision and interpreta- tion. This is essentially a slow growth, not only unsatis- factory, but inadequate to meet the rapid tendencies of a modernized society. Third. The science of legislation, with varying import- ance has followed in ai: the great systems of law, to meet 153 the growing conditions for which the other two epochs have proven inadequate. This was the case, evidently, under the Babylonian and Assyrian laws; it has been the case in China; it was the case in Rome and England, and it is the ease in America. The question, therefore, with respect to the form of de- velopment of any line of the law, is simply to what epoch has it arrived. If the common law and equity system has become inadequate, has it only reached a stage needing slight modification of the old theory, or is it so unfitted as to need scientific treatment of the old system or an estab- lishment of a new? In this matter the question really is : Are the legal remedies insufficient? The common law uxls not made to meet present condi- tions and is consequently built on an insufficient theory. Under the Assyrian monarchies, the Babylonian laws, and the other early Asiatic and European governments, the conditions were peculiar. Six centuries before Christ, Ne- buchadnezzar built a canal 400 miles in length, of large size; in fact, practically three times as great as the pres- ent Panama ditch that has so baffled this, great country for a generation. But this canal is supposed to have been built by the labor of slaves caught in successful battles in ad- joining monarchies. See Rawlinson's Monarchies, pp. 245- 7. He likewise built the Wall of Babylon containing 500,- 000,000 feet of solid matter. Under such a system no compensatory act such as we are now discussing was necessary; hence we' find none in the laws of that age — although we do find some matters of negligence treated, such as malpractice of dentists and physicians. With a slave, of course, the loss of his life or the 154 incapacity of his body for service meant economic loss to the owner. The care of the slave fell upon the owner, and it was to his interest to procure the best medical aid and attention obtainable and to shorten the incapacity as much as skill could then do. The humanitarian feeling was not even then totally wanting. There was therefore no necessity for an act permitting the injured to recover damages either for his" medical at- tention or the loss of his time, and he needed very little money to pay for pain and suffering, as it was not then regarded of such great importance, even if he had had the standing of a man in court. When we come to Eome, we find that there are consider- able provisions in its elaborate and highly perfected sys- tem of private law that gave to persons injured by certain kinds of torts the right of recovery and that degree of care varied in much the same terms as to the relative obliga- tions as does our own (Sanders Justainian by Hammond, 401-3) ; yet the test of care there started as it does here with the relative duties. The rules and degrees of care as to property, such as bailments, etc., were not far different from ours except that, "In each case the standard is the care which the person sought to be made liable takes about his own things" (lb. 402). as distinguished from our rule of the standard of an or- dinarily prudent man; and domestic relations were built upon the theory of inequality before the law which was characteristic of their institutions. Now slavery in those days was considered a favor to the slave upon the theory that, "Generals order their captives to be sold and thus preserve them, and do not put them to death" (lb. 77). 155 In the comments on the rights of persons on page 76, the same author says: "Each person capable of having and being subject to rights was called in Roman Law a persona. Thus not only was the individual citizen, when looked at as having this capacity ^ a persona, but also corporations and public bodies. Slaves; on the contrary, were not persona. They had no rights." Under the Roman law, the paterfamilias existed ; and un- der that the head of the family harbored not only his di- rect family but such of the collateral kindred as came un- der his jurisdiction and all of the servants and slaves o\ his household. For a considerable time he held the power of life and death over all of them. The loss of service, the expenses of treatment, the reduction in the economic value of his slave, all fell upon him and his decendants. There was then very little use for a compensatory act. Besides by Sec. 1, Title VIII (Hammond, p. 90), the Institutes provided: "Slaves are in the power of masters, a power de- rived^from the law of nations, for among all nations it may be remarked that masters have the power of life and death over the slaves, and that everything ac- quired by the slave is acquired for the master." This being then the law of nations the slave had no legal status and with him free labor could neither compete nor from his hardships rise. When the private system of Roman law was measurably transferred into Europe and modified into the English com- mon law and equity systems, the slavery still partially ex- isted and there was added to it the modified element of mili- tary tenure. In the course of the operation of that system the loss, the expense, and in a measure the sympathy of the then lord was relatively selfish, and it was consequently 156 the motive for him to see that the best care and attention should be given to replace the cog in the wheel of his sys- tem. With the fading of those systems the growth of equality before the law has been slow. So we find no law in England, in the early day, of the nature we are here seeking to adopt. The English common law system theoretically was trans- ferred to America as one of England's dependencies ; and, aside from a small section which adopted the theory of the Roman Civil Law — like Louisiana — the great body of the private common law of England, including its statutes then in existence, was adopted as the common law of this country, so far as it was not inconsistent with our consti- tutional systems or law. The South had its slavery, attendant with the commer- cial instincts of the owners, which there, as in Europe, in- stigated all necessary attention to the injured when acci- dents did occur. And the South was slow in manufacture; it was an agricultural community; it had few dangerous pieces of machinery — and it needed no such law. Strange as it now seems, the theory that the slave was not a^person in law was not confined alone to Europe. In the famous Dred Scott decision, Chief Justice Taney of the Supreme Court of the U. S., speaking for the majority of that great court said : "It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened por- tions of the world at the time of the Declaration of In- dependence, and when the Constitution of the United States was framed and adopted. But the public his- tory of every European nation displays it, in a manner too plain to be mistaken. "They had for more than a century before been re- garded as beings of an inferior order; and altogether 157 unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to re- spect." Dred Scott v. Sanford, 60 U. S. 393 (L. Ed. 691- 701). This expression evidently intended to fix, and, being seized upon to establish, the want of legal status served as an awakening to the realization of a great fact, which a bare majority then decided to, and did, change. It was, of course, the fact in the South as it had been in Europe that so long as men could, be bought to work, there were few economic reasons to favor them with com- pensatory laws. Likewise free labor could not well ele- vate itself while competing with actual slavery or its ef- fects. In the New England and the Eastern states, indeed in all of America outside of the slave belt, scientific labor was in a state of slumbering indolence ready to awaken a com- mercial revolution, when the shackles of competing sec- tions should fade away. Until that time men hardly la- bored, as a system of scientific specialists in America al- though much of their arts and crafts are wonders of this age. Equality of politics and equality before the law had greatly impressed itself upon society in all its tendencies. The old neighbor worked for him who proved to be more frugal, making complete articles of commerce, like shoes, or wagons, or furniture. Their families were friends ; their children oftentimes intermarried; the home of each was permanent. An accident to the workmen was infrequent, as there was little machinery and plenty of time. The accident, when it did occur, was an injury to the community, in 158 sympathy, at least, and the old neighbors shared the con- sequences of the resultant needs of the injured and his family — and no such legislation was then necessary. Best Thought of Age Devoted to Government. In the epoch which followed the settlement of America and that which preceded and endured the Revolutionary war, patriotism, based upon the compact theory — equality before. the law for freemen — was the guiding motive in forming our constitution. The best thought of the best minds of this new and am- bitious country was devoted to the essential features Of both private and public law, to create a model system up- on the theory of a republic ; no other feeling than the pres- sure of hardship could have been the motive to drive men to such deeds of patriotism or such deep lines of thought along governmental lines. They studied all of the then-recorded systems of govern- ment. They argued, analyzed and decided the best prin- ciples for their conditions that they could, from the whole of the several systems. The great arguments of Webster and Wirt, and the al- most superhuman decisions of Marshall, had greatly ex- tended and blended the constitution to meet the several conditions as they had arisen. The spirit of enthusiasm from the building of that great work but partially subsided until the passage of the Civil war — w hich confirmed the instrument as a system of cen- tralized power. Then came the amendments, with Mr. Justice Miller and his associates to construe the new constitutional epoch, as a basis not alone of defeating slavery but as an added protection to Tiuman rights. 159 Great Minds Turn to- Industries. From the time that the Civil war ended- and the recon- struction was done, the great minds in America turned their attention to previously neglected material things. There was a vast country, with great natural but undevel- oped resources. The problems of necessity came first; agriculture for food, individual preservation of foods, personal construc- tion of raiment were most necessary. Some of the great inventions, now such powerful* means, were wholly unknown, others, in their infancy. If a per- sonal statement can be excused, my own father, -yet alive and in the possession of all his faculties, was five years of age when the first railroad was laid. The modern means of manufacture and tools were not yet at a stage to be greatly valued or seriously dangerous. The commercial inventions have been almost without number. Machinery has become highly developed and is yet increasing in amount and capacity. The laborer, who had been the old neighbor, making his complete article, had to be replaced by a machine operated by a person per- haps with no more breadth of general vision but with a specialized knowledge of that article, who could make many pieces at a much smaller cost, which, when put with many more pieces, made, too, at a smaller cost, would make the whole article not only -more quickly but much more cheaply. The Relations of Employer and Employe Change. And with this necessity the whole gave way to the piece system ; the old neighbor to the specialist. The specialist 160 was frequently, indeed quite often, a foreigner; speaking a different tongue, leading a different life, having different sympathies, and producing a different society. The owner who had worked with the old neighbor could no longer have the social intercourse with all his men; neither could he longer work beside them, but his talents must be put to financiering, to finding the best and cheap- est productions, to making the greatest and least expen- sive sales. To each department he must delegate the duties formerly an incident to his business, to foreman ; and over them a vice principal ; perhaps under both a "strawboss" ; thus removing from his vision and sympathy, and likewise removing from their vision and sympathy, the elements that had formerly bound the employer and the employe together. The requisite capital to run that business necessitated, first, the partnership; and after that, the combined wealth and organization of the legal corporate entity. These, too, placed one further step between "the company" and "the man." Following the substitution of the piece for the whole, system of manufacture, came the substitution of the whole for the piece, system of men. The union of all the men for the convenience and protection of all, and this removed sympathy still one degree -further. The deal was then one of good labor at cheap cost against cheap labor at good cost — cold blooded business on each side. We were busy in America getting the balance of trade. We were engaged in building up our cities, opening our new railroads (some very cheap and dangerous), slaugh- tering our forests, devouring our mines, and last but not least, increasing our necessities proportionate to our earn- ing capacities. The luxuries of yesterday were the neces- 161 sities of today. Machinery has been rushed to its capa- city, its operators to their endurance, and yet the demand has not been met. The rush of manufacturers to meet our demand, has, probably enhanced the dangers of various em- ployments. Employe Carries Risks of Accidents Now. In the manufacture of goods a small percentage is added for labor; another percentage for rent; another for inter- est on the investment; another for insurance to carry the fire risk, and, in recent year^, some additional to carry the risk of negligence of the employer. But the risk of pain and suffering, the risk of incapacity, the risk of family deprivation, the loss of the laborer's capital, in so far as traceable to the accidents, in a majority of the cases, as distinguished from the negligence of the employer, has been a risk which the laborer himself has borne. He has not been asked in the past to assume the risk of fire insurance; but he has been asked to assume and has assumed the risk of personal injury where it has .been caused simply by the nature of the industry without any one's fault; according to recent statistics gathered by the state of Wisconsin and published by its labor department the risk of the injury without fault has caused a majority of accidents. The public demands, of course, have made those accidents necessary. It may be that those demands have been stimulated by the shrewd advertising of the manufacturer; but, nevertheless, such has been the case and is a part of our progress. There was a time when a man's family carried the risk of his death without property. To prevent that hardship, 162 life insurance companies were formed to carry that part of the risk, for a consideration paid at previous intervals. The question of whether it was gambling was litigated and settled adversely to that contention. It is now considered greatly beneficial to society by the distribution and equali- zation of the financial burden. , There was a time when every man of property carried his own risk of fire. His home burned, and his neighbor donated clothing, beds and eatables. Charity, not compen- sation, was his lot. To meet this, fire insurance compen- ies were organized; and, like life insurance, had -to fight prejudice and laws. Indeed, there was a time when an in- surance agent in the country fared little better than a "lightning-rod agent." The state stepped in ; it regulated the business, both life and fire; it passed laws embracing forms of policies, so that the insured could not be promised all in the body with "antidotes'' in the fine print. Statistics could be obtained to fix the average length of life; they could be gotten to fix quite well the hazards of fire, consequently private enterprise could fix the risk sufficiently to make satisfactory rates. In the great field of agriculture, exchanges have grown up wherein traders' markets are established. The value of those markets rests largely on the fundamental commer- cial necessities; that ready and complete information as to supply and demand is obtainable by the traders and re- flected in the quotations of sale prices; that the traders as- sume the financial risk of controlling and distributing the surplus to meet the demand; that the producer not only gets much nearer the consumer's price when he does sell, but gets the benefit of the best judgment of the greatest specialists as to the time to sell. The financial risk of the farmer has thus been greatly assumed by the trader. The 163 trader insures his risk by means of a system of hedging, counter-balancing the chances in his purchases until he sells; the miller likewise covers his risk. The states have greatly favored these institutions with legislation. They have made it possible for members to organize an associa- tion either as a partnership or as an organization in the nature of a voluntary association, which is permitted to prescribe conditions of membership and have given to their boards of arbitrators, rights of common law arbitrators 'which give speedy and satisfactory results greatly to the relief ol the courts and public. This greatly simplifies the expenses and very much shortens the delay. Besides the member gets his case heard before experts who think and judge as he would do if impartial. In the field of general industry and its commerce some such principles are partially applied in the commercial ex- changes, but with respect to the risk of accidents, the par- ties either settle their respective risks, or apply to the old methods of litigation. It is true there are many systems of insurance which many can get if they are able to pay the cost. Certain fraternal organizations have benefits some may receive, but no greater than are ours outside of labor for benefits other than their peculiar risks. The uncertainties, the expenses, incident thereto, the great delay, and many other reasons, however, make this risk so uncertain as to create entirely too much waste in cost, time, and feelings as applied to our present system. This fault of waste can probably be said to be based large- ly on the fault of the risk that must now be assumed. At the present time, then, the risk of industrial acci- dents, from the view of the laborer, is borne practically by him, except in so far as he shows they were due exclusive- 164 ly to a violation of the employe's legal duty. Yet the em- ployer is heavily burdened. The laborer, who is a stranger, comes to his employment. The interests and obligations of a master and a slave do not even exist; nor do those of the military "system. He works ; he is crippled, he leaves. The relation is then end- ed — except for violation of duty or by grace of charity. It matters very little to his family or those dependent upon him whether the loss of his arm or his leg or the family wages upon which they lived was occasioned by some slip of the foot negligently allowed to happen, or a slip^ of the foot unavoidably happening by reason of the negligence of the employer — the public calamity is the same; the injury is the same; the results are the same; the consequences, to their minds, are not distinguishable, nor are they to ours. Present Systems a Temptation to Perjury. A man in the railway service, on a dark, snowy night, knows that there should be a light of a certain color in a certain position. He is blinded by the snow and forgets to look. The light turned a different way is a different color; it means that he should stop but he approaches and is injured. He goes to a lawyer who is honest; and is ad- vised that no fault of the master existed but his fault did exist — he cannot recover. He goes home and tosses back and forth upon his bed during the night, wondering what can become of himself and family. A neighbor asks if he remembers distinctly which colored light showed. He dis- cusses it back and forth. He has put his life into the ser- vice, of that company. He realizes that when his case is put to the court he will be judged by men sitting on light 165 and comfortable seats, in a measure unappreciative of the difficulties under which he labored that night and his case ruled by logic and law as distinguished 'from justice. The necessities tempt him to go to another lawyer, and, knowing the correct principle, state to him that he did look for the light; that the wrong light was turned his way; that he approached it and was injured through neg- ligence of the company and no fault of his own. He re- covers. To recover, the jury had to believe his falsehood as against a number of witnesses who told the truth. He has a friend injured under circumstance in fact such as he tells to the jury. The friend tells the truth; a witness against him lies; perhaps tempted to prevent a charge against himself of in- competence, possibly by reason of his customary actions — but lies — the jury believes the false witness, and the in- jured gets nothing. The rules of common law are so closely drawn that the ringing, or the failure to ring a bell; the pulling, or the failure to pull a whistle ; the swing, or the failure to swing a lamp; may mean success or failure in such suits; its false telling may mean ease or poverty to the injured. It may have meant life or death to the laborer as well as to the passengers. It may win for the defense. Lawyers who take these cases on contingent basis are generally fair, but the temptation to advise as to these slight differences is very great to a poor lawyer with a percentage contract in a bad injury, easily made into a case of liability. We must not, however, say, or even intimate, that the mere trial of damage suits is, per se, objectionable, that all employers are heartless or all insurance agents ras- cals. It would be extremely unfortunate and unfair to so 166 argue it. The system has had its abuses, but railroads have had some watered stock ; bank officials have had some em- bezzlers, the bar has had some thieves, and the church has harbored some adulterers — men are human. We do not outlaw all, railroads; condemn all bankers; disbar all lawyers, nor excommunicate all churchmen. The great fact is that men of breadth and judgment con- demn only the evils of the system. Many men of affairs do little work on this subject except in the aid of the defense of capital and its accomplishments, and can easily reach the conclusion, based largely on interest or bias that' it is more important; but when we face the question from the stand- point of just judgment, rather than the attitude of ad- vocates, things assume a different aspect. • The Employe not Equal With the Employer Under the Common Law. We have already shown a recognized inequality of con- tract but a few of the cases will serve to illustrate this point also. Under the law as it now stands in America, labor and capital are equal before the law in the constitutional sense, but they are not equal in the law, capital comes with the shrewdness of a well chosen advocate hired at the mini- mum of expense for his worth, and the laborer with whom he can get at the maximum of expense. The litigation is but an event in the life of the capitalist, often not requir- ing his personal attendance at the trial ; but it is an epoch in the life of the laborer and his family— they talk it; they live it; they dread its awful uncertainties— they suffer its great calamities. The lawyer who takes the part of the laborer in dam- 167 age cases, often pays the whole expense; he earns or does not get his own fee, and some support the laborer — we are told — in the interim. For this the lawyer must be paid. The returns being uncertain must be greater when they do come ; but all these things the laborer must stand or be outlawed under our system, if his claim is disputed. In H olden v. Hardy, 169 U. S. 366, L. Ed. 780, the court said, respecting mining: "The legislature has also recognized the fact, which the experience of legislators in many states has corro- borated, that the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are, to a certain extent, con- flicting. The former naturally desired to obtain as much labor as possible from their employes, while the latter are often induced by the fear of discharge to conform to regulations' which their judgment, fairly exercised, would pronounce to be detrimental to their health or strength. In other words, the proprietors lay down the rules and the laborers are practically constrained to obey them. In such cases self-interest is often an unsafe guide, and the legislature may promptly interpose its authority. * * * But the fact that both parties are of full age and competent to contract does not necessarily deprive the state of the power to interfere where the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself. The state still retains an interest in his welfare, however reckless he may be. The whole is no greater than the sum of all the parts, and when the individual health, safety, and welfare are sacri- ficed or neglected, the state must suffer." We have then the principle announced by two able courts, Earbinson v. Knoxville Water Co., 53 S. "W. 993, and the case of E olden v. Eardy, 169 U. S. 397 (L. Ed. 793). But in the case of Adair v. U. 8., 208 U. S. 160 (L. Ed. 436-442) , the majority said : 168 "In all such particulars the employer and the em- ployee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land." Adair v. U. S., 208 U. S. 160 (L. Ed. 436-442). The first two cases were where the employment was dan- gerous; the last had under consideration a different ques- tion — the relation of the labor union to the employment, and cannot be said to limit the others. In the case of Narramore v. Cleveland, C, G. & St. L. By., 96 Fed. 298 (6 C. C. A.), Judge (now President) Taft said : "The only ground for passing such a statute is found in the inequality of terms upon which the rail- way company and its servants deal in regard to the dangers of their employment. The manifest legisla- tive purp'ise was to protect the servant by positive law, because he had not previously shown himself can- able of protecting himself bv contract; and it would entirely defeat this purpose thus to permit the servant 'to contract the master out' of the statute." No effectively organized effort controls the city coun- cils, or the legislative bodies of either state or nation in the special interests of labor, no aggregation of capital earns for it; no social influence aspires to it — it is but the means of business and business the means to capital, whose necessities are yet its luxuries. The Employer has Difficulties. And these temptations and uncertainties make it all the more difficult for the employer. Besides, the amount of money which it costs the employer to maintain inviolate 169 his property rights as against such accidents is entirely too great for the amount which the injured receives. To keep from being mulcted in damages by fraudulent cases, and excessive damages by honest cases, the employer must maintain expensive and extended systems of defence or in- surance. He bears such loss as he cannot settle or pre- vent by lawsuits or anticipated insurance! — from, the fi- nancial standpoint, negligence and (in the language of the street) "then some." If he maintains insurance, he has many evile resulting therefrom. But this is not all; with the loss of the personal contact that formerly existed between him and the laborer, has gone the personal sym pathy. The laborer joins his union, and a strike for greater wages is made. Bad mutual feeling is created. The laborer is injured; the employer carries insurance; the insurance is based on legal liability, this defeats sym- pathy and the injured feels that his treatment has not been just. The great uncertainties of the risk necessitate much lit- igation. Even though insured, the great expense, and many uncertainties, make a great nuisance to the employ- er. The consumer does not yet understand that when buy- ing a product he should pay for the risk of the man as well as the breakage of the machinery. It has been the theory that recovery could only be had forefault of the employer and he should pay for his own fault. At the same time the employer has been compelled to keep down the damages to compete with others. Much could be said here, but all admit the present system inadequate for all. 170 f. The Public Burdens Great. As an illustration of what our court records show in Minnesota, the writer turned to Vol. 104 Minnesota Re- ports, which covers three months time, and found the fol- lowing result : Total number of pages in whole opinions 534 Number of pages consumed hy personal injury opinions 136 or 25*%. Personal injury cases reported 31 Appeals by defendant in those cases 28 Eeversals on same 4 Appeals by plaintiff 3 Eeversals ion same 1 Total number of verdicts in 31 cases, 28 of which were affirmed, amounting to f 144,926.50. Amount of those reversed, f 6600. ' Of the cases appealed, none of which were reversed, seven aggregated in amount $111,000. The largest verdict reversed was for $4,000. i Only three -of the four cases reversed were cases in which the verdicts had been had. Twenty-one of the cases outside of the seven large ver- dicts produced approximately $7,000.- Of the large verdicts two were for $6,000 each; one for. $7,000; one for $10,000; one for $18,000; one for $30,000; one for $35,000. i The case wherein the $35,000 verdict was obtained was one where the injured died after the verdict had been procured ; and the court sustained the verdict, when, under the statute, it could only have sustained 171 a verdict for f 5,000 if he had died before the verdict was rendered. As it was, he got no benefit during life, but, by suffering until after the verdict was rendered, contributed an extra §30,000 ito iiis rela- tives. Of the 31 cases tried, 5 were for injuries not received in the course of employment, 26 for injuries receiv- ed in the course of employment. Taking, out the seven large verdicts, the 16 that were obtained made but |27,000 — which is not a large amount on an average. This makes the remarkable showing that, approximate- ly 84% of these cases were for injury in the course of em- ployment. Considering that this report covers but three months, and that perhaps in a majority of the cases where no ver- dict was obtained no appeal was taken, it would (itself be evidence of the fact that a very large proportion of the cases tried were personad injury cases. We addressed communications to the Clerk of the Dis- trict Court at Duluth and at Minneapolis, as well as the Clerk of the Supreme Court of Minnesota. The Clerk at Duluth was the only one who gave a definite answer. Three days' work of one of his best deputies produced the fol- lowing result : Number of cases tried during year 369 Number of them personal injury cases 79 Cost of running the court : Jurors' fees $18,206 . 82 Sheriff's salaries '3,087.00 Clerks' salaries 3,480 . 00 Judges' salaries 17,100 . 00 172 Printing calendars 424 . 50 Total 142,298.32 This, it will be seen, makes approximately 21 per cent of the cases in number. The clerk adds, in his report : "Of course, yon understand that there were prob-. ably as many more personal injury cases' dismissed or settled, that never came to trial." This probably is a fair observation. It might be added that, in our larger cities at least, cases of this nature averaged much longer than the ordinary jury trials. In our district court in Minneapolis, it costs the state to try one of these cases about as follows : Salary of Judge per annum $5700, esti- mating he is engaged in Court 200 days per year, about $ 28 . 00 Stenographer, basis 200 days 9.00 Clerk, same estimate 6 ,00 Sheriff '. . . . .^. 6.00 12 jurors 24.00 6 extra jurors for selection 12 . 00 Sheriff's fees for serving 18 men once in 12idays .' 3.00 about |3.00 per day. Bailiff ..'. 3 - 50 1/6 of sheriff's expenses 10 . 00 $101.50 This does not include the cost of building, etc., etc. It is safe, however, to estimate that each day of jury trial in these cases costs in our courts from $100 to $125 and that 173 from one-quarter to one-half of six courts are taken up during the whole year. There is no doubt but that a very large number of cases of a personal injury nature are settled before suit is even brought, and many others after the court has provided for or entered upon the trial. And if a system could be evolv- ed which would prevent the public expense incident to the trials that are had, it would save a great deal in that di- rection alone. Wisconsin. The labor report issued in the state of Wisconsin, 1907- 1908, part 1, which covers "Industrial Accidents and Em- ployers' Liability in Wisconsin" contains one of the most interesting and instructive bits of information that we have found in the whole field. The conditions there are so similar to our own that the information with respect to accidents is extremely valua- ble in a discussion in Minnesota. From page 4 of that report we quote as follows; "Kesponsibility in 238 cases investigated by Wisconsin factory inspectors- 1 When the standard is "ordinary" care. Responsibility. - Number. Per cent. Fault of employer 27 11.35 Fault of workman 56 23.53 Fault of both 17 7.14 Fault of fellow servants 14 5 . 88 Hazard [of the (industry 124 52.10 All ascertained 238 100 . 00 174 Not ascertained 26 Not at work for employer 54 Cases investigated 318" This gives us quite definite information to show that more than half of the accidents were occasioned by the hazards of the industry. That only about 1/9 were occa- sioned by the fault of the employer, and nearly 1/4 by the fault of the workman himself, and about 1/14 by their joint fault, and 1/17 by the fault of fellow servants. The faults of the existing systems are given on page 5 of that report, as follows: i "Faults of the existing systems. 1. The attempt to locate negligence so that it will hold in a:court of law is expensive and creates hostil- ity between workmen and employers. 2. The law of negligence means liability insurance for the employer, and a large part of the money paid to liability insurance companies is wasted. 3. The concealment of facts regarding accidents hinders the important work of preventing accidents. 4. The existing laws do little to encourage work- men and employers to enter into mutual insurance schemes, nor do they encourage the workmen to in- sure themselves. Workmen do not have adequate pro- tection." 175 XI. THE COMPENSATION IN THE MODERN FOR- EIGN COUNTRIES ALONG THIS LINE. (a) What advantage has been made. (b) The common law has been modified in many re- spects and there seems to be no reason why it should not be arranged, at least after a reasonable remedy is given in its stead. (c) The Federal Government and many of the states have been working on this change sufficient -to show that no party wants arbitrary action but only reasonable regu- lation, yet, there are doubts in the minds of many as to whether we can make the necessary laws. Compensation in the Modern Foreign Countries. So much of bulletin No. 74, of the Bureau of Labor is- sued in January, 1908, by the U. S. Department of Com- merce and Labor as is covered on pp. 122-169 is represent- ted in the appendix hereof as being a splendid brief state- ment of the foreign laws on the question. Page 121 com- ments as follows : s Summary of Foreign Workmen's Compensation Acts. "By the term 'workmen's compensation laws' are meant enactments which embody the principle that the workman is entitled to compensation for injuries re- ceived in the course of his employment. Such laws have been enacted in twenty-two foreign States. "Usually the injuries must cause disablement for a specified number of days or weeks before compen- sation becomes due. The employer may usually be re- lieved from the payment of compensation if he can prove that the injury was caused intentionally or by 176 willful misconduct, or in some countries by the gross negligence of the injured person or during the per- formance of an illegal act. "The industries usually covered by the acts are manufacturing, mining and quarrying, transportation, building and engineering work, and other employ- ments involving more or less hazard. In Belgium, France, and Great Britain the laws apply to practi- cally-all employments. In Austria, Belgium, Den- mark, Finland, Germain", Italy, Luxemburg, Nether- lands, Norway, Russia, Spain, and Sweden only work- men engaged in actual manual work, and in smne cas- es those exposed to the same risks, such as overseers and technical experts, come' within the operations of the law. On the other hand, in France, Great Britain, the British colonies, and Hungary the laws apply to salaried employees_and workmen equally. Overseers and technical experts earning more than a prescribed amount are excluded in Belgium, Denmark, Germany, Great Britain, Italy, Luxemburg, and Russia. Em- ployees of the state, provincial, and local administra- tions usually come within the provisions of the acts. "The entire burden rests upon the employer in all but Joue countries. Austria, Germany, Hungarv, and Luxemburg, where the employees bear nnrt of the ex- pense. The laws in everv ca«e fix the compensation to be paid. Except in Sweden the compensation is based upon the wasjes of the injured rterson. It con- sists of medical and .surgical treatment and periodical allowances for temporary disability, and annual pen- sions or lump-sum payments for permanent disability or death." a. * Views of Foreign Countries. In the report put out by the Secretary of Commerce and Labor, in December, 1908, in speaking of this question it is said: "In striking contrast with conditions in the United States is the position of the foreign workman who is 177 injured by accident in the course of his employment. Practically every foreign country of any importance industrially has by legislation recognized the prin- ciple that the workman is entitled to compensation for injuries from accidents received in the c6urse of his employment. Twenty-two foreign states have en- acted such legislation, namely, Austria, Belgium, British Columbia, Cape of Good Hope, Denmark, Fin- land, France, Germany, Great Britain, Greece, Hun- gary, Italy, Luxemburg, Netherlands, New Zealand, Norway, Queensland, Russia. South Australia, Spain, Sweden, and Western Australia." This article proceeds to point out that in most of those countries there must be some definite period of disability, such as a certain number of days or weeks; that the em- ployer may usually be relieved if he can prove the injury intentional or willful, and, in some countries, if caused by gross negligence or during the performance of an il- legal act; but that in none of those countries does ordi- nary negligence on the part of the employee work a for- feiture of the right to compensation. "The industries usually covered by the laws are manufacturing, mining and quarrying, transportation, building and engineering work, and other employ- ments involving more or less hazard. In Belgium, France, and Great Britain, the laws apply to practi- cally all employments. In a considerable number of countries only workmen engaged in actual manual work, and in some cases those exposed to the same risks, such as overseers and technical experts, come within the operation of the law. These countries are Austria, Belgium, Denmark, Finland, Germany, Italy, Luxemburg, Netherlands, Norway, Russia, Spain, and Sweden. On the other hand, in France, Great Britain and the British Colonies, and Hungary, the laws ap ply to salaried employes and workmen equally. Over- seers and technical experts earning more than a pre scribed amount are excluded in Belgium, Denmark, Germany, Great Britain, Italy, Luxemburg, and Rus sia. Employes of the state, provincial and local ad- 178 ministrations usually come within the provisions of the acts. "The entire burden rests upon the employer in all but four of the countries — Austria, Germany, Hun- gary and Luxemburg — where the employes also bear a part of the expense. The laws in every case fix the compensation to be paid. In all the countries but Sweden \ the compensation is based upon the wages of the injured person. It consists of medical and sur- gical treatment and of periodical allowances for tem- porary disability, and annual pensions or lump-sum payments for permanent disability or death. "In most countries employers may contract with state or private insurance institutions for the transfer of the burden of payment of compensation. In a num- ber of countries such transfer is obligatory. Provis- ion is usually made for the protection of the bene- ficiaries in case of insolvency of employers. "The acts of nearly all of the countries are framed with the view of obviating the necessity for instituting legal proceedings. The laws are so specific with re- gard to the compensation allowed and the regulations for its payment that agreements are usually amica- bly made between the employers and the victims of the. accidents.'/' The article proceeds to say that procedure is provided for cases where agreement cannot be had, that the best practice in other countries fixes a definite compensation for death or injury, usually based upon the earning capacity, which enables the employer to calculate with some degree of certainty the additional item necessary to be included in the cost of production ; that this becomes as capable of calculation as does fire insurance; that various plans of industrial insurance are in operation in other countries, from which a system can probably be worked out ; but sug- gests that it will be time enough to talk laws when we place the liability upon the industry itself. That report sug- gests that the government law which went into force Aug- ust 1, 1908, with respect to accidents to the Panama em- 179 plojes should be so amended as to transfer its administra- tion from the • Secretary of Commerce and Labor to the Isthmian Canal Commission. b-c. Policy of Change of Common Law. Substantially all of the states, as well as the Federal Government have made attempts to amend the common law by changing some of the more objectionable elements in the more hazardous employments. Various laws affecting railways and other carriers of persons exercising special privileges based upon govern- mental functions, have been enacted affecting such mat- ters as the fellow-servant doctrine, safety appliances, com- parative negligence, etc. ; other laws have been enacted im- posing duties in the nature of police regulations such as making it the duty to fence elevator shafts,, cover danger- ous machinery, limiting the ages of children, the hours of labor for men in hazardous occupations, the requirement of inspection of mines and machinery, etc., etc. But until very recently no serious attempt has been made to change the theory by changing the basis of recovery. Repealing the Common Law. In Smith v. Alabama, 124 U. S. 465 (L. Ed. 508), the court isaid : "There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England ais adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. ■ Wheaton v. Peters, 33 U. S. 8 Pet. 591 (L.Ed. 1055)." 180 In Martin v. Pittsburg, etc. Co., 203 U. S. 284, L. Ed. 184, the court had under consideration a statute of Pennsyl- vania limiting the right of certain persons to recover against railroads for damages to the same rights which em- ployes would have. It was claimed that this law was in- valid and the court said : "The assertion of the Federal right is disposed of when we determine the question of power." And: "If it be conceded, as contended, that the plaintiff in error could have recovered but for the .statute it does not follow that the legislature of Pennsylvania in pre- venting a recovery took away a vested right nor a right of property. As the accident from which the. cause of action is asserted to have arisen occurred long after the passage of the statute, it is difficult to grasp the contention that the statute deprives the plaintiff in error of the rights just stated. Such a contention in reason must rest upon the proposition that the state of Pennsylvania was without power to legislate on the subject — a proposition which we have adversely dis- posed of." There is no constitutional objection to repealing or mod- ifying the common law, at least- if a reasonable remedy is left as will be shown by the following cases. Federal Government. Rule in Admiralty. In the case of Steamer Max Morris v. Curry, 137 U. S., page 1 (L. Ed. 586), the Supreme Court held that: "A longshore man, employed to load coal on board a steamship, and injured while so employed, by his fall- ing from the steamer's bridge to her deck, partly through his own negligence and partly through the negligence of the steamer's officers, is entitled, in a suit 181 in admiralty against the vessel for 'damages for such injuries, to a decree for divided damages." In a libel in that case the libellant, who in plain lan- guage in another court would be the plaintiff, charged that he fell from the bridge to the deck of the boat through the negligence of those in charge having removed from the bridge the ladder usually leading therefrom to the deck, and in leaving and failing to guard the hole left thereby, and that he was not guilty of any negligence and that he was injured by the fall and incapacitated from labor. He claimed $3,000 damages. The answer alleged negligence on the part of the libellant and an absence of negligence on the part of the claimant. The District Court entered a decree in favor of the li- bellant for damages of f 150, and $32.33 as one-half of the libellant's costs, less $47.06 as one-half of "the claimant's costs, making the total av/ard to the libellant $135.27. - The District Judge charged to the libellant's own fault all his pain and suffering and all mere consequental dam- ages, and charged the vessel with his wages at $2 per day, for 75 working days, making $150. An appeal was taken to the circuit court and an opinion rendered therein but no decree. The case came up again before two of the Judges and they certified the question to the Supreme Court which isaid : "The question discussed in the opinions of Judge Brown and Judge Wallace, and presented to us for decision, is whether the libellant was debarred from the recovery of any sum of money, by reason of the fact that his own negligence contributed to the acci- dent although there was negligence also in the officers of the vessel. "The particular question before us has never been authoritatively passed upon by this court, and is, as stated by the district judge in his opinion, whether, 182 in a court of admiralty, in a case like the present, where personal injuries to the libellant arose from his negligence concurring with that of the vessel, any dam- ages can be awarded, or whether the libel must be dis- missed according to the rule in common-law cases." The court proceeds to say that it had long administered the English law of dividing the damages in admiralty cases, citing a number of cases where it had been so done. The court pointed out the distinction of rules for the division of damages to claims to the effect that in the common lavv court the defendant must, pay all the charges or none while in the admiralty court the law would allow the di- vision if both were at fault. . A'fter further references the court said : "They show an amelioration of the common law rule, and an extension of the admiralty rule in a di- rection which we think is manifestly just and proper. Contributory negligence, in a case like the present, should not wholly bar recovery. There would have been no injury to the libellant but for the fault of the vessel; and while, on the one hand, the court ought not to give him full compensation for his injury, where he himself was partly in fault, it ought not, on the other hand to be restrained from saying that the fact of his negligence should not deprive him of all recovery of damages." When President Taft was sitting as a Circuit Judge, 1897, in the court of appeals, with Mr. Justice Harlan and Circuit Judge Lurton, the case of Pierce n. Van Dusen, 78 Federal Eeporter, 693, was before the court. The opinion was written by Circuit Justice Harlan, and is very able, referring at length to the authorities of the United States Supreme Court and others, at page 700 the opinion says : "Undoubtedly the whole subject of the liability of interstate railroad companies for the negligence of those in their service may-be covered by national legis- 183 lation enacted by congress under its power to regulate commerce among the states. But, as congress has not dealt with that subject, it was competent for Ohio to declare that ah employe of any railroad corporation doing business here, including those engaged in com- merce among the states, shall be deemed in respect to his acts within this state, the superior not the fellow servant, of other employes placed under his control." See opinion of Judge Taft in Warramore v. Cleve- land, etc. By. Co., 96 Fed. 298. On June 11th, 1906, Congress passed an act intending to regulate interstate carriers in favor of employer's liability, etc. The Supreme Court declared that act unconstitutional upon the theory that it covered intrastate as well as inter- state' business. The act established contributory negli- gence and prohibited contracted benefits except pro.rata. The opinion is recorded in Howard v. Illinois C. R. Co., 207 U. S. 463 (L. ed. 297). That opinion was by Mr. Justice White and with him Mr. Justice Day concurred. Mr. Justice Peckam concur- red in a short memorandum but he and the Chief Justice and Mr. Justice Brewer were not prepared to agree with all that the opinion said upon the power of Congress to legis- late upon the subjeet of the relations between master and servant. Mr. Justice Moody dissented in a very long and able opinion. Mr. Justice Harlan and Mr. Justice McKenna agreed in a short dissenting opinion and Mr. Justice Holmes dissented in still another short opinion; but of these various opinions it would appear to be the rule, very clearly decided by the majority at least, if not by all of the justices, although it may be doubtful whether three of the Justices agree thereto, that Congress has power to legislate oh the subject of master and servant with re- 184 spect to matters covering interstate commerce. In the course of his dissenting opinion Mr. Justice Moody reviews opinions bearing upon different phases of this ques- tion. In the case of Snead v. Central of Georgia Ry. Co., 151 Fed. 608, District Judge Spear had delivered a very elab- orate opinion in which he sustained the Act of June 11, 1906. His comments- upon the nature of this legislation at. page 619 are well worthy of reproduction here: "Nor is the enactment of such measures as that un- der consideration a novel or unusual power on the part of government. Our own state, it seems, 'was the pio- neer in a measure of partial relief from that strict rule which was first enunciated in England in 1837, which forbade the recovery by the employe for injuries in- flicted by the negligence of a fellow servant. The Geor- gia law upon this subject was enacted in 1856 so far as it related to railroads. In 1862 Iowa abolished the fellow servant bar as to trainmen and in 1874 Kansas did the same thing. In 1885 the state of Alabama adopted similar legislation, and in 1893 Arkansas qualified the doctrine as to railroad employment. Min- nesota followed in 1887. Florida, Ohio, Mississippi, and Texas have modified the doctiine for the benefit of employes. North Carolina, North Dakota, Massa- chusetts, Wisconsin and Minnesota denied its appli- cability to the operation of railroad trains, and in 1901 Colorado abolished the doctrine in toto. Nor have foreign governments been inattentive to this great and unreasonable injustice to that splendid body of citizenship upon whom so much of the pros- perity of the nation must depend. * In 1888 England denied its application to those engaged in the opera- tion of railroad trains, and in 1897 made it also inap- plicable to many other hazardous employments. In Germany it does not apply to anv of the hazardous occupations. In 1869 Austria passed a law making railroad companies liable for all injuries to their ^em- ployes save where the iniury was due to the victim's own negligence. The Code Napoleon made the em- 185 ployer answerable for all injuries received by his workmen, and this is still of force in France, in Bel- gium and jin Holland. Other European countries have from time to time fixed the liability of the mas- ter to his servant for damages caused by the negligent act of a fellow servant. It is, however, unhappily true that many states of the Union, notwithstanding the anachronism of the rule, have maintained and still enforce it. But Congress has at length determined that there shall be an uniform law for the protection of that army of more than a million men engaged in interstate traffic — an army whose courage, decision, patriotism, and intelligence may not be surpassed. "The rule which this legislation abrogates was bas- ed upon the contention that the servant contracts for a wage 'sufficient to protect him against risks incident 'to the service that he is in a better position to observe and protect himself against the negligence of his fel- low servant than his employer, and that it will in- sure better service and less injury if the master be not responsible. The briefest consideration will show how archaic is this reasoning- when applied to mod- ern, conditions. Take the engineer on the locomotive which drives the lightning express. The complexity of his mighty machinery requires his constant and care- ful attention. Possibly in the darkness of night, 50 or 60 miles an hour his train thunders along the gleaming rails. His is blind obedience to his orders. Through the mistake or negligence of a fellow servant, over whose action he has no control, of whose mistake or misconduct he has no knowledge, in an instant he may be hurled to death or to mutilation indescribable. While this is true, under the law which the act of Con- gress repeals, it has been held that the relation of fel- low servant existed between an engineer acting as conductor and his fireman, between a common day la- borer, building a culvert and the engineer and conduc- tor running a train, between an engineer operating one train and the conductor on another train on the same road, between conductor and brakeman on the same train,, between the local telegraph operator and fireman upon the train, and in view of these relations, shadowy and intangible as they are, yet justified by the law as it existed, it has been held that the em- 186 ployer was not liable for the death and suffering which resulted. The law is a progressive science. The rule has long been deemed most unjustifiable. In Labatt on Master and Servant, Vol. 2, Sec. 754 it is declared : " 'It does not rest upon any satisfactory bases, log- ical, social, or economic, and by relegating the in- jured person to his action against a co-employe, who is, as a general rule, financially irresponsible, leaves him in the great majority of instances, without any prospect whatever of obtaining the adequate indem- nity.' "Such conditions will no longer exist. Said the house committee in its report on this measure: "'Now where the doctrine of fellow servant is iu force no one is responsible for the injury or death of the fellow servant, The co-servant who is guilty of negligence resulting in the injury may be liable, but as a rule, he is not responsibe. Employes are never held to such strict rules for the safety of his co-em- ployes, because the employer is not bound to pay dam- ages in case of injury. If he were held liable for dam- ages for every injury occasioned by the negligence of his servants, he would enforce the same strict rules for the safety of his employes as he does for the safety of passengers and strangers, he will make the employ- ment of his servant and his retention in the service de- pendent upon the exercise of higher care, and this will be a strong inducement to the employe to act with (higher regard for the safety of his fellow workmen.' " Snead v. Central of Georgia By. Co., 151 Fed. 608- 619. Presidents Urge Change. As early as the first message of Benjamin Harrison, sent to Congress in 1889, we find the following expression: Page 51, Vol. 9, "Messages and papers of the Presidents" : "The attention of the Interstate Commerce Com- ■ mission has been called to the urgent need of Con- gressional legislation for the better protection of the lives and limbs of those engaged in operating the 1ST great interstate freight lines of the country and es- pecially of the yardmen and brakemen. A petition signed by nearly 10,000 railway brakemen was pre- sented to the Commission asking that steps be taken to bring about the use of automatic breaks and coup- lers on freight cars. "At a meeting of the State railroad commissioners and their accredited representatives held at Washing- ton in March last upon the invitation of the Interstate Commerce Commission a resolution was unanimously adopted urging the Commission 'to consider what can be done to prevent the loss of life and limb in coupling and uncoupling freight- cars and in handling the breaks of such cars." During the year ending June 30, 1888, over 2,000 railroad employes were killed in service and more than 20,000 injuries. It is compe- tent, I think, for Congress to require uniformity in the construction of cars used in interstate commerce and the use of improved safety appliances upon such trains. Time will be necessary to make the needed changes, ibut an earnest and intelligent beginning "should be made at once. It is^a 1 reproach to our civ- ilization that any class of American workmen should in the pursuit of a necessary and useful vocation be subjected to a peril of life and limb as great as that of a soldier in time of war." In February, 1903. he sent to Congress the special report of the Commission of Labor relating to injuries of workmen in Germany and other countries. We need not call the attention of this assembly to the fact that President Harrison was an able lawyer as well as a great statesman and probbly knew at the time he wrote that, the exact status of this matter in Europe. , The safety appliance act passed Congress as a result of this agitation and this and other recommendations and a portion of the above quotation from President Harrison is found in the opinion of the Supreme Court in maintaining the act. 188 In his message to congress, in 1908, President Roosevelt said: "If a man is injured or killed in any line of work, it was hazardous in his case; whether one per cent-of those following the given occupation actually suffer injury or. death ought not to have any bearing on the question of his receiving compensation." Later on in his message he says : "Probably in no othes respect is our legislation, both state and national, so far behind practically the entire civilized world as in the matter of liability compensa- tion in accident or injury." To meet the decision of the majority in the Howard case the act of April 22, 1908, was passed. It seems to be a fix- ed rule of the government that it may require employes of railroad companies, engaged in interstate commerce, to be protected by safety appliances or otherwise but there, is no other reason why they should not be greatly extended if the governmental necessities demanded it. We under- stand also that there are some legislative acts that we have not yet examined which cover the rights of government em- ployes. There is not any longer a question but that the government is able to provide regulations for its own em- ployes as indicated under Subdivision II, supra.. The congressional record of May 30, 1908, contains a very able argument giving a synopsis of English law as a part of an article contained in a speech printed from Hon. Geo. A 1 . Bartlett of Nevada as an argument in favor.of Mr. Bartlett's proposed bill. A very interesting and ably pre- pared argument is also printed by Congressman Sabbath (the page we do not have) in favor of his proposed meas- ure. 189 Other States. In 1905 the legislature of the state of Illinois passed a joint resolution reciting, in effect, that owing to the lim- ited time at its disposal and the importance of the ques- tion, a commission should be appointed to investigate the subject of a proper law for industrial, insurance, etc. In that resolution it Avas recited, among other things, as a commentary upon the sad conditions existing. "This melancholy fact, of which all are conscious, poisons the present and fills the future with fears." The report of that commission published much valuable information in connection with the report. . It drafted two bills, one making it lawful for employer and employe to enter into a contract to insure the employe against acci- dents occurring in the course of 'employment, and that in consideration of such insurance the employer should be re- lieved of the consequences of injuries, under other provis- ions of the law. The report covered not only that bill "but a form of contract and bond which the parties might exe- cute. The committee also reported a second bill some- what along the lines of the German bill, which their coun- sel advised was unconstitutional; but they reported it up- on the theory that it would be valuable as an educational measure, and that someiohere, sometime, some legal talent would rise up that would be able to enact a law that would conform to our constitutions. We call attention to this and the Connecticut report with a view of justifying such elaborate discussions rather than setting our judgment against theirs. The Illinois commission is still in existence, but the bills which it recommended were not adopted, and it is, as we understand, from one of its -members, not very active at 190 the present time as a commission, although Prof, Hender- son, one of its members, has been quite active in the study of the question. Massachusetts had a joint special committee, consist- ing of three members of- the senate and eight members of the house of representatives. That committee had sub- mitted to it various bills. It held a great many public sessions, and finally a majority made a report to the effect that absolute liability should not be imposed upon the em- ployer, but recommended a law permitting the employer to submit to the state board of arbitration and concilation a plan based upon the percentage of the earning capacity, under the common law or liabilities act, by which he might settle in case of accident. Of course the majority disagreed or there would have been no minority. New York and Wisconsin have commissions also. Connecticut had a commission appointed in 1907, that commission reported, among other things: "The committee unanimously agree that very prob- ably the future relations of employer and employe will be settled by legislation along this line. "The committee have not been able to agree in the matter of recommending such an act at this time. The representatives of the employer . and labor classes would have been willing to recommend a bill which should provide, first for definite and limited compen- sation to employes in certain lines of industry for all injuries incurred in the course of their employment resulting in death or permanent disability; and sec-' ond, the opportunity to insure against injuries and sickness. The compensation in the first case to be borne exclusively by the employer and in the second case the cost of insurance to be borne by employer and employe. The committee, as a whole, however, did not believe the people of this state were ready to take a step so radically different from the present practice. It was also very questionable with the com- mittee whether so small a section of our country 191 should take such a step alone and so possibly place the producers of this state at a disadvantage with those of other states. ''The lawyer on the committee thought there were ■ possible -constitutional objections to an act of this na- ture and questioned seriously its adaptability to pres- ent conditions; and further thought it would be un- wise for the state of Connecticut to undertake legis- lation of this character until the public generally had given the matter more consideration than >up to the present time it has received. "After a serious consideration of the advantages claimed for a Compensation Act and also a considera- tion of the objections raised to the proposal of such an act at this time, the committee decided that it was not wise to recommend a bill of this nature to this General Assemblv." Minnesota.. At the annual meeting of the Minnesota State Bar As- sociation held in the city of Duluth August 14-15, 1908, a paper was read, and discussion had upon this question, which resulted in a motion that was finally amended and passed, referring to the Committee on Jurisprudence and Law Keform the duty of investigating the subject and if it thought advisable drawing a bill that would accomplish the results now under discussion. For fear that the com- mittee might put up a radical bill, that association finally so amended its motion as to require the committee to draft the bill, if it could do so, and allow the president to call a special meeting to be held in December, in St. Paul ,to dis- cuss that question. The chairman of that committee was unable to take, up the work, as he reported to the presi- dent in the latter part of October, and at his request the president appointed the present chairman of the Minne- sota commission chairman of that committee. Upon his 192 acceptance, he immediately took up correspondence with other members of the committee, with labor leaders, such as Mr. Gompers, Mr. Mitchell Mr. Debs, and the Commis- sioner of Labor of Minnesota and the commissioners of various states and others interested in the matter, with certain capitalists like Mr. Hill and Mr. Carnegie, with government officials like the Commissioner at Washington and the Secretary of the Interstate Commerce Commission, with some of the librarians of the best equipped libraries on the subject, and numerous others who had given special attention to the matter. During the course of that correspondence, meetings were arranged with the labor unions and the President of the Minnesota Employers' Association and then with Mr. Mc- Ewen, who was about to become the present Labor Com- missioner, (now both members of the Minnesota Employes' Compensation Commission) first separately and then joint- ly. The resulting conferences was a petition to the governor of the state to send a special message to the legislature, re- questing the appointment of a commission to investigate the subject, and the passage of a law requiring the data of accidents to be reported, in order that some definite knowledge might be gained to aid in the drafting of a law. This called forth more or less political discussion, and the matter became one which created considerable contro- versy in the legislature. The result, however, was that three bills were passed; Chapter 286, appointing-the com- mission; Chapter 234, requiring insurance companies to report accidents for a certain period to the commission; and Chapter 285, requiring employers to report accidents, with data in connection therewith, to the Labor Commis- sioner. The governor appointed the present commission- 193 ers and they assumed the power or presumed the necessity of bringing about the Atlantic City Conference. With the question of the desirability of a change the Minnesota commission has nothing to do. The legislature of our state has committed itself to the doctrine that the change is necessary. It has directed us to investigate the laws in force in foreign countries ; to draft a bill or bills which we think proper to make the change in Minnesota and present those bills with our report, containing enough data and facts to show the strength and weakness, from a practical standpoint, when considered in the light of our constitutional provisions. The question, then, in Minne- sota, is not whether a change is desirable, but whether or not such a law as the commission may draft shall be a desirable law to effectuate the change which all concede should be made if it can be done fairly to all concerned. The Eussel Sage Foundation has sent two well equipped gentlemen, Dr. Lee K. Frankel and Mr. Miles M. Dawson, to study the practical workings in foreign countries. The granting of public franchises has not been to labor; the exercise of eminent domain does not fall to its lot; the influences of social and financial standing are not exercised in its favor. Why should not it have the protection which will equalize conditions? Not equalize in the impossible sense of arbitrary destruction of the rights of one in favor of another, but in the sense of equalizing opportunity witli respect to a matter where it has not previously existed. The theory has all along been that each human being would select the calling he desired and make sufficient thereby to get his profit above the losses including his own waste and that his health and luck were his capital, his weakness and injuries his misfortunes. If he wrongfully hurt another he must stand the damages No one doubts 194 that rule when the damage is not one»incident to unequal disadvantage or occasioned by connection with a system for general good which causes injuries. The government has always paid men salaries or wages in war, yet it has recognized that men must be hurt as a part of the system, and for the injuries it has allowed pen- sions. Some of the larger industries are now pensioning their men for business reasons. All stand the element of negligence risk, a few voluntarily assume pure accidents. When the Employes' Association, the workmen, and the lawyers joined in a request for a commission to investigate and draft a law or laws on this subject and other laws to get data, our legislature was deluged with bills attempting to get speedy action on the ground of necessity. Anyone of them might have been passed by a maj ority irrespective of their just application to the subject. That would have been arbitrary action. Our legislature evidently so felt. But the action which it did take to require the subject to be investigated at home and abroad was the action of that judicial care which hears before it condemns and acts upon t facts and judgment as distinguished from arbitrary and biased exercise of power. The action token taken will not be arbitrary and will be within the police power. The government of the United States and a very large proportion, if not all, of the states, will upon admission or implied assumption, agree that the common law has become and is becoming'obsolete upon this question, or perhaps it might rather foe said that the common law has not yet ad- vanced with the times sufficiently to meet the changes and protect against the hazards. In this instance the movement like the instigations themselves Avas rather evolutionary than revolutionary; but as many of the institutions have 195 been revolutionized there is no reason why the theory of recovery should not be revolutionized, if that is necessary ' to keep apace with the necessities. XII. THE SIMPLEST REMEDY, ALREADY WELL JUS- TIFIED- FOR PROPERTY INSURANCE, IS TO FIX A DEFINITE LIABILITY BY LAW FOR HAZARDOUS INDUSTRIES ON CONDITION THAT THE AMOUNT OF DAMAGES BE SUBMITTED TO ARBITRATION —REPEAL THE COMMON LAW. Arbitration of insurance problems like this might.be re- quired by the state in furtherance of its police power. This is a risk; it is really an insurance problem and as such must be treated. This does not mean that prevention of accidents, could not be otherwise lessened. But it does mean that as an insurance problem it may be and neces- sarily must be treated as an insurance problem. As such the law would be the same. The field is quite well laid out; the constitutionality well determined. As insurance it comes within the police power. Under that power- the form of contract covering the dangers may be regulated — the remedy simplified. In Minnesota we have a standard form of fire insurance policy which requires (Rev. Stat. Minn. 1905, Sec. 1640) : 1640. Standard Policy. — No fire company shall is- sue on property in this state any policy other than the standard form herein set forth, the blanks for which may be filled in print or writing, and no condition, stipulation, or term, other than those therein provid- ed for, whether as to jurisdiction, limitation, magis- trate, certificate, or otherwise, shall be valid if in- 196 serted in any such policy, except as follows : (then fol- lows certain exceptions) . In Wild Rice L. Co. v. Royal Ins.. Co., 99 Minn. 190-192, the court said : "A glance at the history of the standard form of pol- icy makes it very clear that the legislature of this state intended to deprive fire insurance companies of the right to add to or change the terms and conditions of the prescribed form. Th right to make such chang- es and additions is one of the principal distinguish- ing characteristics of the two classes of standard forms. The Massachusetts and New York standard policies went into effect about the same time and have formed the models for the legislation in other states. Both states were seeking uniformity of insurance con- tracts, but Massachusetts did not attempt to deprive the parties of the liberty of making their own con- tracts. It merely adopted a model which the parties were at liberty to modify at will. But New York went . further and determined the form which all must use with the privilege of adopting certain prescribed claus- es to cover particular conditions. The Minnesota act of 1889 imposed upon the insurance commissioner the duty;of prepareirg a standard form of policy which should be obligatory after that year. The New York form was prepared and went into use but the act was declared unconstitutional because it attempted to dele- gate legislative powers to the insurance commissioner. In 1895 the legislature adopted the Massachusetts form with such modifications as were necessary to avoid conflict witht the valued policy law. * * * "The conclusion is inevitable that the legislature in- tended to deprive the parties of the right to make in- surance contracts in anv form nxcept as prescribed by- the statute. * * * "The prescribed form with the changes thus author- ized is the only form of fire insurance contract author- ized by the laws of the state." Wild Rice L. Co. v. Royal Ins. Co., 99 Minn. 190- 93-95. 197 In State v. Beardsley, 88 Minn. 20-25, it is said : "It has been held that the insurance code applies to foreign, mutual, unincorporated associations, as well as those properly incorporated, and that neither can do business in this state without a license. Seamans v. Christian Brothers Mill Co., 66 Minn. 205, 68 N. W. 1065. In a sister state it has been held, under a stat- ute quite similar to our own, that the required certifi- cate must be obtained by individuals or associations doing insurance business, as well as by corporations. State v. Stone, 118 Mo. 388, 24 S. W. 164. Such a conclusion is inevitable unless we are to permit irre- sponsible persons engaged in a business which needs supervision by the authorities to compete with corpor- ations under surveilance. The supervisory provisions of the insurance code are a legitimate exercise of the police powers of the state, and there is no discrimina- tion in favor lof our own citizens. They apply with equal force to all companies and to all persons, the ob- ject of the law being to protect the public. All agents acting for individuals, partnerships, associations, or corporations engaged in the insurance business must be licensed by the insurance commissioner before so acting and transacting business, and all are 'prohib- ited therefrom without this license." State v. Beardsley, 88 Minn. 20-25. ' Why could not any dangerous employment giving rise to the necessity of exercising police power, be required to make a standard form of contract with a similar clause? It is only another kind of insurance. If such contract can be required as a condition of per- forming that dangerous business and the contract specified by the state, then it could just as well say that the rights exist in every contract of employment and the liabilities flow therefrom by virtue of the law without contract, The policy also must ^contain : "In case of any loss or damage under this policy, a statement in writing, signed and sworn to by the in- sured, shall be forthwith rendered to the company, set- 198 ting forth the value of the property insured, except in case of total loss on .'buildings the value of said build- ings need not be stated, the interest of the insured therein, all other insurance thereon, in detail, the pur- pose for which and the persons by whom the building insured, or containing the property insured, was used, and the time at which and manner in which the fire originated, so far as known to the insured. The company may also examine the books of ac- count and vouchers of the insured, and make extracts from the same. In case of any loss or damage, the company, within sixty days after the insured shall have submitted a statement as provided in the preceding clause, shall either pay the amount for which it shall be liable, which amount, if not agreed upon .shall be ascertained by award of referees, as hereinafter provided, or re- place the property with other of the same kind and goodness, or it may, within fifteen days after such statement is submitted notify the insured of its inten- tion to rebuild or repair the premises or any portion . thereof separately insured by this policy, and shall thereupon enter upon said premises and proceed t<'> rebuild or repair the same with reasonable expedi- tion." Per E, L. Minn. 1905, Section 1610. Arbitration as a Condition Precedent to Suit. The Minnesota standard form of fire policy provides : "In case of loss, except in case of total loss on build- ings, under this policy, and a failure of the parties to agree as to the amount of loss, it is mutually agreed that the amount of such loss shall be referred to three disinterested men, the company and the insured each choosing one out of three persons to be named by the other, and the third being selected ! by the two so chosen. The award in writing by a majority of the referees shall be conclusive and final upon the parties as to the amount of loss or damage, and such reference, unless waived by the parties, shall be a condition precedent to any right of action, in law or equity, to recover for such loss ; but no person shall be chosen or 199 act as referee, against the objection of either party, who has acted in s a like capacity within four months. "No suit or action against the company for the re- covery of any claim by virtue of this policy shall be sustained in any court of law or equity in this state, unless commenced within two years from the time the loss occurred." l E. L. Minn. 1905, Section 1640. In Schuffer v. Rockford Insurance Co., 11 Minn. 291, it is said : "Most of the authorities cited by counsel are mere- ly to the effect that an appraisal of the amount of the loss, if not waived, is a condition precedent to the right to bring an action to recover for the loss. No- body disputes that proposition." Like total loss by fire, death might be so regarded here. "The employee could be relieved of certain things where his loss was total. Provision that others could make his proofs where incapacitated or incompetent could be added. Arbi- tration by a regular state tribunal could be provided as a condition to suit, and the award filed as a basis for a judg- ment. A law leaving the general question of liability to be de- termined and simply providing a reasonable method of es- timating and ascertaining the amount of the loss is un- questionably valid. In Viney v. Bignold, L. K. 20 Q. B. D. 172, the court said: "In the present case the insurers have covenanted to insure against loss by fire, subject to the conditions indorsed on the policy. The question turns on the language of the 21st of these conditions, which, after providing for the adjustment by arbitrations of the amount to be paid b.v the insurers in case of a loss contains this provision, 'and the party insured shall not be entitled to commence or maintain anv action at law or suit in equity upon his policy until the amount JMK) of the loss shall have been referred and determined as hereinbefore provided, and then only for the amount i»o awarded.' The question to be decided is what is the meaning of this provision? I am of the opinion that it means that in case of difference the amount to be paid shall be determined by arbitration, and until this is done no liability shall arise; in short, the con- dition means what it says; the only contract on the part of the defendants which is applicable where, as in the present case, a difference has arisen is that they ■ will pay such amount as shall be awarded by arbitra- tors or their umpire? Speaking of the case of Collins v. Locke, 4 App. Cas. 674, the court said : "There the parties had agreed to two things : first, that in case of any breach of covenant the party com- mitting the breach should pay 1000-1 as liquidated damages, and, secondly, that all matters in difference should be submitted to arbitrators. The second of these clauses, under the particular circumstances of that case, was held not to interfere with the right to sue for breach of covenant, At first sight the lan- guage of the arbitration clause in that case appears similar to the language used here, but there is a dif- ference, for the agreement in that case, after provid- ing in general terms f^r a reference, contained the fol- lowing clause : And the award of the arbitrators shall be conclusive, and any of the parties shall not be en- titled to commence or maintain any action at law or suit in equity in respect of the matters so submitted as aforesaid, except for the amount or amounts by the said award determined to be naid by anv one m more ■of the said parties to the other or others of them, or otherwise in accordance with the terms and conditions of the said award, as to the acts or deeds to be made, done, executed and performed.' " In the case of Scott v. Avery, 5 H. L. Oas. 811, on page 847 the Lord Chancellor said : "There is no doubt that where a right of action has accrued, parties cannot bv contract sav that there shall not be Jurisdiction to enforce damages in respect 201 of that right of action. Now this doctrine depends upon the general policy of the law, that parties can- not enter into a contract which gives, rise to a right of action for the 'breach, of it, and then withdraw such a case from the jurisdiction of the ordinary tribunals. But surely there can be no principle cr policy of the law which prevents parties from entering into such a contract as that no breach shall occur until after a reference has been made to arbitration. It appears to me that in such cases as that, the policy of the law is left- untouched." In Preset, etc. D. & R. Canal Co. v. Pa. Coal Co., 50 N. Y. 250, it is said : "The distinction between the two classes of cases is marked and well denned. In one class the parties undertake by an independent covenant or agreement to provide for an adjustment and settlement of all disputes and differences by arbitrations, to the exclu- sion of the courts, and in the other they merely, by the same agreement which creates the liability and gives the right, qualify the right by providing that before a right of action shall accrue certain facts shall be de- termined or amounts and values 'ascertained, and this is made a condition precedent either in terms or by necessary implication." And further: Scott v. Avery, (5 H. of Lords Cases, 811) is in principle on all fours.with the case at bar, and unless we are prepared to overrule or disregard it, is decis- ive. That was an action on policies of insurance, one of the conditions of which was that the sum to be paid for less should, in the first instance, be ascertained by the committee, but if a difference arose between the insured and the committee, the difference was to be referred to arbitration in a way pointed out by the conditions, with a. proviso that no one who refused' to accept the amount settled by the committee, should be entitled to maintain an action at law, or suit in equity on his policy until the matter had been decided 'by arbitration, and then only for such sum as the ar- bitrators should award. It was held that these con- 202 ditions were lawful, and until the -award was made no action was maintainable. The House of Lords affirm- ed the judgment of the Court of Exchequer Chamber, reversing that of the Court of Exchequer. There, as in this case, in the language of Lord Campbell, the rules and regulations for ascertaining the amount to be paid made part of the contract, and it is not ma- terial that there the contract, was express that no action should be brought until after the award, while in the contract before us it is implied. It is not nec- essary that it should be put in the technical form of a 'condition precedent,' and the courts will give effect to the real intention of the parties, as clearly indicated by the agreement." In Wolff v. Liverpool L. & G. Ins. Co., 50 N. J. L. 453, the court -said : "But the present case, plainly, stands outside of that class, for here the stipulation to refer, .instead of being independent of the promise to pay the loss, is attended with the further stipulation, that until such appraisal, such payment shall not be due. Such a provision qualifies, and consequently incorporates it- self with the general promise to pay the loss. It is clear, beyond all possibility of controversy, that the agreement between the assured and the company was, that if they could not agree on the amount of the loss, the sum recoverable should, if an arbitration were re- quested, be the amount found by the award. Such an agreement is both legal and reasonable, and it is not perceived that any authority exists, which holds a contrary doctrine." In Hall v. Norimlk Fire Ins. Company, 57 Conn. 105, it is said : "If parties make an arbitration agreement which has the effect to oust the courts of jurisdiction, it is held to be invalid, (although more recent decisions questions whether this doctrine is sound in principle,) but it has always been held both by the courts of Eng- land and of the United States, that arbitrations to set- tle particular questions which are auxiliary to the jurisdiction of courts, such as the amount of damages, 203 or the amount of the loss by fire under policies of in- - surance, are binding in law, and indeed highly fa- vored by courts." In Reed v. Washington Insurance Co., 138 Mass. 572, the court said : "There is no doubt that an appraisal of value, or an award of the amount of damages, can be made a condition precedent to a right of action. In such a case the agreement is not to refer a cause of action, but that a cause of action shall arise upon the ap- praisal or award, which is preliminary to, and in aid and a condition of, the right of action. Hood v. Hartshorn, 100 Mass. 117, was a case of that kind. Chief Justice Chapman said : 'The present case comes within the principle stated by Coleridge, J., in Avery v. Scott, 8 Exch. 500, that it is not unlawful for par- ties to agree to impose a condition precedent with re- spect to the mode of settling the amount of damages, or the time of paying it, or any matters of that kind that do not go to the root of the action.' The judg- ment of Coleridge, J., in the Exchequer Chamber, in Avery v. Scott, was affirmed in Scott v. Avery, 5 H. L. Cas, 811, and the question in such cases has been one of the construction of contracts — whether the agree- ment to refer in the particular contract under consid- eration is a condition precedent to a right of action upon the contract, or an agreement to refer a right arising under the other provisions of the contract." In Hamilton v. The Liverpool & London & Globe Insur- ance Co., 136 U. S. 242, 34 L. Ed. 419, it is said: "The appraisal, when requested in writing by either party is distinctly made a condition precedent to the payment of any loss, and to the maintenance of any action. "Such a stipulation, not ousting the jurisdiction of the courts, but leaving the general question of liabil- ity to be judicially determined, and simply providing a reasonable method of estimating and ascertaining the amount of the loss, is unquestionably valid, ac- cording to the uniform current of authority in Eng- land and in this country. Scott v. Avery, 5 H. L. 204 Oases, 811; Vmey v. Bignold, L. B. 20 Q. B. Div 172- Delaware & H. Canal Co. v. Pennsylvania Coal Co!, 50 JN. Y. 250; Reed v. Washington Fire & M. Ins Co - 138 Mass.-572-6; Wolff- v. Liverpool & L. & G. Ins Co'' 50 N. J. L. 453; Hall v. Norwalk F. Ins. Co., 57 Conn! 105, 114. This might be done here. The injured would be entitled to appear before the arbi- trators and submit evidence of his cause. Rediver v. N. Y. Ins. Co., 92 Minn. 306. The arbitrators would be disinterested. Produce Refrigerator Co. v. Ins. Co., 91 Minn. 210. . The arbitrators would sit in a body and be governed by the rules of common law arbitrators making their acts quasi judicial but without so many technicalities as in a law suit. i See cases, supra. Christianson v. Norwich Union Fire Ins. Co., 84 Minn. 526-530. In the last case it is said : "The board of referees provided for under the standard policy is a quasi-court subject to the princi- ples governing common law arbitration. Such board should sit in a body, and receive evidence offered by the respective parties, submitting the same to the usual tests of cross examination. While its individu- al members are prohibited from privately collecting evidence from different sources, a reasonable latitude is allowed them in the examination of the premises, remnants of goods, and causes of the fire, for the pur- pose of better understanding and weighing the evi- dence on the principal question before them, viz., what is the just damage to the property involved? But, while a certain liberality is permissible in ac- quainting themselves with the circumstances sur- rounding the fire without the medium of witnesses, 205 such board is not selected 'for the purpose of seeking evidence secretly,, and. determining the amount of the loss by reason of such personal knowledge. See au- thorities cited in 2 Am. & Eivg. Erie. 641-655. This court has practically stated the rule in Mosness v. German American Inst. Co., 50 Minn. 341, 52 N. W. 932. The referees must constitute a body of disinter- ested men, whose business it is to proceed in a judicial and impartial manner to ascertain the facts .in con- troversy." Indeed, the last session of the Minnesota legislature (Chap. 167, G. L. 1909) provided for health and accident policies; it also created our commission to investigate this question. As evidenced by its decisions hereinbefore cited the Su- preme Court of the United States has recognized the right to control insurance problems by limiting and denning the rights of the parties. Indeed the question is no longer open as to 'fire insurance and if it were a question of in- juries to mules or machines insteal of men there would be no doubt of the right. There is no reason to deny the right to men. XIII. THE FALLACY IN TEE MOST OF OUR OBJEC- TIONS LIES IN THE FACT THAT WE FAIL TO UN- DERSTAND OR APPRECIATE THE WEIGHT WHICH MUST BE GIVEN TO THE POWER TO PRO- TECT THE PUBLIC INTERESTS. THE POWER OF GENERAL WELFARE MUST ALWAYS REMAIN WITH THE STATES 'SUBJECT ONLY TO REASON- ABLE AND LAWFUL REGULATIONS. A review of the origin and history of our constitutional system is sufficient without much reflection to convince the 206 observing mind that our constitutional problems here are more imaginary than real. The" difficulty lies not with the constitution but in the prejudicial awe with which Ave ap- proach it. It was made not to rule, but to serve; to pro- tect, not to prohibit; to. secure, not obstruct. It was the result of a revolution in the common law ; it intended to prohibit and prevent the evils and hardships then known ; to reasonably secure the future. The Anglo Saxon was. a progressive people. The colonists did intend to protect individual rights, but above all, in their govern- ment, they wanted liberty — not license. The state was first, after that individuals. The fallacy in the most of our objections lies in the fact that we fail to understand or appreciate the weight which must be given to the power to protect the public interests in all controversies between individuals. This is a power ever present, never lost ; it cannot be sold or bartered ; all property is held subject to its power of reasonable regula- tion and control. It is a 'condition precedent to all con- tracts; a safety valve for all action; a supreme factor in all private law. There are other rules with which and to which it must conform but even those rules are blended to protect the public so long as no distinction is made to work unjust and discriminating hardship. The state must be first protected and reasonable latitude is allowed for that protection as based on the equities of the case. We yield to none in our appreciative reverence for the American constitutional system; yet there is a higher and broader patriotism than the one with which that Consti- tution is often approached. It is a fundamental law-or- ganic, yet reasonable; broad, yet blending; restrictive, yet expansive. And the broader view of it is that private in- 207 dividual® must hold their property and liberty subject to such reasonable laws as the public necessity creates. None can know history and not appreciate the exigen- cies which gave birth to the bill of rights; yet none can know jurisprudence and not understand that there is a public right greater and broader than individual rights which must have greater and broader power for its pro- tection and use. Indeed, the very fact that bills of rights are deemed necessary at all is based upon the theory that the state would otherwise have power to disregard them. This being true we look to the form of government to see from whence comes the protection for general welfare. What do we find? That certain powers have been dele- gated to the Federal government, but not the police power, within the states. Certain prohibitions are delegated to the Federal government to prevent the states from violat- ing certain bills of rights, but aside from these the power is reserved, and even within them it exists except as lim- ited by the provisions above discussed 'as to police power and in the language of the United States Supreme Court: v "A istate has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation — the author- ity of a state is complete, unqualified and exclusive." Equal legal protection can easily be secured in police rights ; so can due process of law. Neither confiscation of* property nor the destruction of liberty follows from reason- able regulations, for the power is ever present and all. rights of property held subject to it. The allegiance granted in consideration for protection implies this regulation. The Constitution is an instru- ment for protection of public welfare as well as private rights. If the government could not preserve the general 208 welfare, it would be but an instrument for license as dis- tinguished from liberty. The Constitution was never in- tended to prevent but rather to secure government. It was not intended to deprive all men of protection, except the one whose rights iaire particularly called in question, but rather to leave the scheme of public protection without much substantial alteration so long as operated in good faith and equally; and to protect the individual against ar- bitrary, unusual and unreasonable restraint. The power to protect this general welfare is inherent in, and remains with, the states, subject only to equal and rea- sonable lawful regulation. To secure individual liberty restraints on public rights are necessary, but to preserve common liberty, including individual liberty, restrictions on individual rights are im- perative. Construing the constitutions then, in the light of their creation and objects we find nothing preventing this public security, but only that protection necessary for the indi- vidual security co-ordinate with the public welfare. Since the first ten Amendments do not apply to state ac- tion, and the Fourteenth Amendment does not interfere with reasonable state action through the police power, we find but small limitations in this regard. The state has never given, granted or bartered its police power to any one— it cannot do so. This being true, no person can set up a vested right against the regulation; none can claim injustice on account of it; no constitution- al provision can be construed to prevent it— else, that pro- vision, if clear, would abrogate this power of the state that must ever stand as the bulwark of. constitutional security. Since no individual ever acquires this public right; since no property is based upon it, but all held subject to it, the 209 slate does not take property by its exercise. It may be that- the power to exercise has been dormant; that its exer- cise seems a taking; but it is in fact but an assumption of a right always implied and always subject to exercise. It is, therefore, not a damaging to, or taking of, property of the individual — it is the assumption of a right which for fail- ure to claim the individual may have used to his own ad- vantage, but charged with the knowledge of its true own- ership. The present basis of fault is wrong in principle; insuffi- cient in practice. With the experience of the more important foreign coun- tries committed to the doctrine of the change of basis ; with the recognized necessity in a number of states to attempt to make the change; with the present conditions admittedly unsatisfactory; with the Supreme Court of the United States committed to uphold laws, making some changes within the police power; and with two of the most noted presidents officially pointing with humiliation to our ob- solete system, a third having publicly acted upon it; with all other financial risks of the industries rightfully as- sumed by the employer ; with the risk of pain and suffering unavoidably cast upon the employee; can anyone doubt the necessity of correcting this condition or the propriety of changing the basis of recovery from that of fault to that of risk of the industry — on a fair limit to both parties. With all this, and more history, it is apparent that the movement is based upon reason— not arbitrary action. It would have been exceedingly easy for many states to have passed laws, if arbitrary laws would have done, but the ac- tion of these states as well as the Atlanta City Conference conclude all question of arbitrary action. It is no move- ment having the police power as a mere cloak, and no 210 court can ever say — unless it say arbitrarily — that the movement was not without consideration or reasonable basis. It is a notable fact that while we have been boasting of our elaborate system of American constitutional and pri- vate law, some of the foreign countries, a few of which like to -put it that they are unhampered by constitutional lim- itations, have been seeking to enact laws to right this evil, and many of them think that they have succeeded along the lines above indicated. We were the first in modern times to adopt a successful written constitution in the sense of a fundamental law that should under all circumstances be supreme to all oth- er private laws. But from our constitutional system the or- organic act of Canada, the constitution of Australia, the constitutions of the Central and South American republics, of Mexico, of Norway and Sweden, of Prussia, of Italy, and many of the other European countries copied much; in sub- stance, if not in form, although some of them are theoreti- cally built upon granted power from the Eulers. It would be surprising, if not humiliating now if we should permit those countries to take from us a very large portion of the best of our constitution and yet reserve to themselves the right to dispose of evils which we cannot overcome by rea- son of our constitutional limitations. If we understand the facts correctly, there have been in single years recently as high as an average of one man killed or crippled on every 2A miles of single track railroad in the United States. Counting the family at five, you could hang two members of the family on every mile post of every single track railroad for the injuries received di- rectly affecting them, in that occupation, in a single year, "indeed, the records of a recent year show approximately 211 5£ times as many men killed and injured in the peaceful pursuit of railroading as were killed and injured on the Union side in the dangerous occupation of war, at the bat- tle of Gettysburg. Probably one half million men are partial victims of the industries of this county annual- ly. It would indeed be a striking and sad commentary on civilization if we could not, or would not,, legislate to right this wrong in some way that can be found. Now is it an abuse of discretion to say that such legis- lation is necessary in substantially all the countries of Europe? Have all those countries acted arbitrarily upon the question? It has not been the lot of peasantry to be es- pecially ' favored, unless there be motive for that favor. Neither has it been the lot of labor in this country to exer- cise unnecessary special privileges. When the risk of building a railroad was considered too great for private enterprise the government assumed it. When the state had created a system of railroads too powerful for private negotiations it created a railroad and warehouse commission to counter-balance. When the government found that private citizens and its courts could not promptly handle the interstate commerce problem it created a commission to simplify the process. When the states have found private enterprise unable to hold agricultural shows they have created public, funds for general good. When they have found private education inadequate to meet public demands they have created great educational systems and institutions; but only recently have they awakened to the great fact that provision for mechanics and artisans, and protection for their employers is as neces- sary to the people and as just an obligation of 'the state as are all these things. 212 CONCLUSION. ■ I. Public work is not controlled by the constitutional rule as to freedom of contract. II. The relations of the people to the governments of the United States and of the several states are based upon contract to which individual rights are enough subjected to protect the general welfare, at least under the police power. III. The commerce clause of the Federal Constitution grants to Congress the right to control relations of master and servant in so far as needed in such commerce, but does not grant to the Federal Government the right to deprive the state of its police power or to regulate state com- merce. (a) The commerce clause was not intended to, and does not, take away the police power of the states. (b) The states execute the police power even with re- spect to interstate commerce but do so only for their self protection and only to such extent as not to amount to regulation in the constitutional sense. IV. The police power of the people of the several states was never delegated by the Federal Constitution to the na- tional government, nor prohibited by that instrument to the states. 213 (a) The Fourteenth Amendment was not designed to destroy the state's police power. V. Some of the usual constitutional objections against laws are not applicable to this question for they do not apply to the state if it stays within reasonable, equal, and- law- ful regulations of dangerous employments. (a) The first ten amendments to" the Federal Constitu- tion apply only to the Federal Government and do not re- quire the states to give the jury trial but probably would require such trial in the Federal Courts, where they have jurisdiction. VI. The Fourteenth Amendment to the Federal Constitu- tion is a prohibition upon the states — not upon the na- tional government. (a) The privileges and immunities secured by that in- strument are those which belong to citizens of the United States as distinguished from citizens of states. (b) Equal protection of the laws is construed by the Federal Courts as it is by the state courts to permit rea- sonable classifications treating those within the class t qually. This is no bar to such law. (c) The due process of law provided by the Fifth Amendment applies only to the Federal Government but in the Fourteenth Amendment it is a prohibition upon the states. (d) The Federal Constitution, however, does not con- trol mere forms of procedure in or regulate the practice of state courts. All that it requires is that at some point 214 in the controversy there must be a time and place for the court to adjudicate the legal liability after fair hearing. (e) It is not taking private property without due pro- cess of law within the constitutional provisions to require dangerous employments to be liable for the risks of the injury without any particular fault in the special transac- tions, l (f) The jury trial provided by the state constitutions is the trial of such cases as embrace principles secured by the constitution when it was adopted and not a trial of matters involved only in new laws such as this would be. VII. This sort of law would not take private property for public use by reason of two principles. (a) Under our social compact the private owner has no ownership except that which is subject to reasonable control such as this would be. (b) The private individual has no right to complain of the taking of only so much property as is an aid to gov- ernment operation by reason of the last above principle. VIII. The Fourteenth Amendment secures the liberty of con- tract between employer and employe except when limited by the police power; the exercise of the police power rests in the legislative department ; the courts interfere to up- hold the constitution only to prevent arbitrary power from being exercised under cover of the police power. (a) The courts recognize that the employer and the employe do not stand on an equality in making their con- tracts. (b) The police power is used to regulate insurance of 215 private property and- the control of employer and em- ploye. (c) No owner of property has the right to claim that a contract previously in existence has been changed in its obligations by reason of the exercise of the police power because the implication of the power always went with that contract as a matter of law. (d) The police power can neither be legislated nor con- tracted away. IX. The action of the state must not be arbitrary. (a) The common law was not made to meet the present conditions and is totally inadequate therefor. (b) The law on this question has not kept apace with industry. (c) The employe carries this risk now. (d) It is a great temptation to perjury. (e) The employer not satisfied. (f) It is insufficient to protect the public. > X. The compensation in the modern foreign countries is along this line. (a) What advance has been made. (b) The common law has been modified in many re- spects and there seems to be no reason why it should not be repealed, at least after a reasonable remedy is given in its stead. (c) The Federal Government and many of the states have been working in this change sufficient to show that no party wants arbitrary action but only reasonable reg- 216 ulation, yet, there are doubts in the minds of many las to whether we can make the necessary laws. XI. The simplest remedy, already well justified for property insurance, is to fix a definite liability by law for hazardous industries on condition that the amount of damages be submitted to arbitration — repeal the common law. XII. The fallacy in the most of our objections lies in the fact that we fail to understand or appreciate the weight which must be given to the power to protect the public interests. The power of general welfare must always remain with the states subject only to reasonable, equal and lawful regulations. REMEDY. There would seem to be no good reason why the legisla- ture could not make a simple and adequate remedy along the following lines: (a) Fix a definite legal liability instead of the common law in hazardous employment. Either require the em- ployer to pay all, or the greater part, and the employe to pay an equitable proportion, of the .carrying charges. (b) Establish a board of awards, arbitration or refer- ence where prescribed forms of procedure could be liber- ally interpreted, 'and simply, quickly and inexpensively tried to fix the amount of damages as a condition prece- dent to recovery and which as to amount would be final. (c) Allow appeal to regular courts only to show want of jurisdiction, fraud in arbitrators or question legal lia- bility. TND/JX. Constitutionality of Workmen's Compensation Acts. 1. Dual form of government, 54-57. 2. The applications and restrictions of the Constitu- tion, 57. 3. Theory of Discussion, 57-62. 4. The power of the state and government unlimited in their public work, 62-63. 5. The governments of the United States and of the several states were based on the compact or con- tract theory, 65-69. 6. The states have all powers of independent nations except where limited by the Constitution, 79-80, 85. 7. The commerce clause of the Federal Constitution grants to Congress the right to control the rela- tions of Master and Servant as needed in inter- state commerce but does not deprive the state of its police power in such commerce, 73-74. 8. The commerce clause does not take the police power from the States even in interstate commerce' but they still have the necessary power for public pro- tection, 74-76. 9. The states execute the police power within the states interfering with interstate commerce only for public protection, 76-80. 10. The police power of the several states never dele- gated to the Federal Constitution nor prohibited by the Federal Constitution from reasonable, equal, state exercise, 80-86. 11. The first ten amendments of the Federal Constitu- tion apply only to. Federal as distinguished from State action, 86-89. 12. Jury trial cannot be avoided in Federal Court ex- cept perhaps on the theory of arbitration as a condition precedent to recovery, 89-91, 195-205. - 13. The Fourteenth Amendment is a prohibition upon the States, and not upon the National Govern- ment, 91-92. 14. The privileges and immunities secured by the Fed- eral Constitution are those given by that instru- ment and not by state laws, 92-96. 15. The equal protection clause of the Federal Consti- tution does not prevent reasonable classification toward all in the same class alike, 96-106. 16. The due process of law in the Fifth Amendment ap- plies only to the Federal Court. In the Four- teenth Amendment it is a prohibition upon the states, but it is not intended to control mere forms of procedure in, or regulate the practice of, state courts, 106-112. 17. The Fourteenth Amendment is not violated by mak- ing the liability in the dangerous employment ba$is upon legislative grounds other than fault, 112-118. 18. The jury trial provided in the State Constitution secures only rights in existence when the Consti- tution was adopted. It would not require trial of a compensatory law by jury, 119-120. 19. The common law liability could be repealed as to future accidents, 120, 179-180. 20. The compensation law would not take private prop- erty for public use by reason of two principles. (a) Under our compact theory of government all ownership is subject to reasonable con- * trol, 120-124. (b) The private individual has no right to complain of the taking of only so much property as is a protection to the public, 124-127, 68-72, 82-84, 125-126, 130-131. 21. All contracts are made subject to the police power which can neither be legislated nor contracted away, 144-149. 22. The legislative department first detemiines the ne- cessity of such legislation (150) and the courts look to that legislation, not to say whether they would think it policy but only to determine whether there was a reasonable basis so that the legislature had ground for exercising judgment as distinguished from arbitrary power, 149-150. 23. There is at present a sufficient basis for such legis- lation in dangerous employments to prevent it? being arbitrary, 150-195. 24. Except in dangerous employments the liberty of contract is secured by the 14th Amendment but under the principles above announced that lib- erty must be construed as liberty and not license, 129, 145-148. 25. The government interfered because the employer and employe did not stand upon an equality as to their rights to make contracts in dangerous em- ployments, 130-1. 26. As an insurance problem the police power of the state can require the passage of a law having the . effect of an insurance policy, 195-205. 27. This insurance policy may require as a condition precedent to all suits the examination of the ques- tion of injury by a Board of Arbitration, thus us- ing a reasonable method of estimating and as- certaining the amount of the loss, leaving the gen- eral question of liability to" be determined by tht court, 199-203. 28. The fallacy of the constitutional objections lies in the failure to appreciate the weight which must be given to the state to protect the public inter- ests, p. 205-211. 29. Conclusion, 212. 30. Eemedy, 216. HD 7816.U6M5i UniVers "y Library M sh.