The police power is therefore flexible and adaptable to the needs of the public welfare as they develop. The idea expressed by the words of the fourteenth amendment, " due process of law," is hardly less broad. Though the words differ, the same idea is expressed in the phrase," law of the land." (a)

It is not restricted to the test of conformity to process or jurisprudence in use at some fixed past time, since to so construe it would unduly restrict and hamper procedure and deny every quality of the law but its age and render it incapable of progress or improvement. (*) Any legal proceeding enforced by public authority, whether sanctioned by age and custom or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves the principles of liberty and justice must be held to be due process of law. (") The State is not tied down by any provision of the Federal Constitution to the practice and procedure which existed at the common law. (4) Due process of law is secured if the laws operate on all persons alike. (")

The provision guaranteeing to all persons the equal protection of the laws is satisfied when all persons or classes in like conditions and circumstances enjoy like privileges under the law. (') It does not limit, nor was it intended to limit, the subjects upon which the police power of a State may be exerted, but simply requires that legislation shall treat alike all persons affected by it. (9) "The greater part of all legislation is special, either in the objects sought to be ascertained by it, or in the extent of its application. Such legislation does not infringe upon the clause of the fourteenth amendment requiring equal protection of the laws, because it is special in its character. When legislation applies to particular bodies or associations, imposing upon them additional liabilities, it is not open to the objection that it denies to them the equal protection of the laws, if all persons brought under its influence are treated alike under the same conditions. The hazardous character of the business of operating a railway would seem to call for special legislation with respect to railroad corporations, having for its object the protection of their employees as well as the safety of the public. The business of other corporations is not subject to similar dangers to their employees, and no

а

• Dartmouth College v. Woodward, 17 U. S. 518, 4 L. Ed. 629; Missouri P. R. Co. v. Humes, 115 U. S. 512, 6 Sup. Ct. 110.

Twining v. New Jersey, 211 U. S. 78, 29 Sup. Ct. 14. Hurtado v. California, 110 U. S. 516, 4 Sup. Ct. 111. d Brown v. New Jersey, 175 U. S. 172, 20 Sup. Ct. 77.

e Duncan v. Missouri, 152 U. S. 377, 14 Sup. Ct. 570.

f Missouri v. Lewis, 101 U. S. 22, 25 L. ed. 989.

"Minneapolis and St. L. R. Co. v. Beckwith, 129 U. S. 26, 9 Sup. Ct. 207.

objections, therefore, can be made to the legislation on the ground of its making an unjust discrimination." (")

The hazardous nature of an industry is therefore an adequate reason for legislation applying to its conduct, superseding in greater or less degree the right of contract as between the employer and his workmen ;(1) and, as already indicated, it is in part on this fact that the New York statute providing for compulsory compensation in specified dangerous employments relies. Laws abrogating the defense of common employment either generally or in designated industries are constitutional; (c) so of laws modifying the defense of assumption of risks (4) and of contributory negligence; (e) and in general it is no objection to a law that it imposes a measure of liability on an employer that is unknown at common law. The defenses of assumed risks and contributory negligence are frequently abrogated outright in cases where injury results from the failure of an employer to conform to a standard of safety fixed by statute. In other statutes the employee is declared to have, in the defined circumstances, the same rights of action and recovery as if he had not been an employee.

The extent to which such a declaration carries the matter appears from a consideration of statutes that make the proprietors of an undertaking responsible for injuries resulting from its conduct without personal fault. Thus a Nebraska statute makes railroad companies liable for injuries to passengers unless the injury is the result of the criminal negligence of the person injured or of his violation of some known rule. The supreme court of the State in upholding this statute said: "The legislation is justified under the police power of the State. It was enacted to make railroad companies insurers of the safe transportation of their passengers, as they were of baggage and freight."() The Supreme Court of the United States sustained this view, quoting the above with approval, and adding: "Our jurisprudence affords examples of legal liability without fault, and the deprivation of property without fault being attributable to its owner. The law of deodands was such an example. The per

Missouri P. R. Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161; Tullis e. R. Co., 175 U. S. 348, 20 Sup. Ct. 136.

Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383.

Missouri P. R. Co. v. Mackey, supra; Tullis v. R. Co., supra; Powell r. Sherwood, 162 Mo. 605, 63 S. W. 485; Mining Co. v. Firstbrook, 36 Colo. 499, 86 Pac. 313.

d El Paso & S. W. R. Co. v. Foth, 45 Tex. Civ. App. 275, 100 S. W. 171; Thomas v. Quartermaine, L. R. 18 Q. B. Div. 685, 56 L. J. Q. B. N. S. 340; Narramore v. Cleveland, etc., R. Co., 96 Fed. 298, 37 C. C. A. 499; Greenlee v. R. Co., 122 N. C. 977, 30 S. E. 115; Valjago v. Steel Co., 226 Pa. 514, 75 Atl. 728.

Kiley r. Chicago, etc., R. Co., 138 Wis. 215, 119 N. W. 309; Missouri P. R. Co. v. Castle, 172 Fed. 841 (C. C. A.).

f Chicago, R. I. & P. R. Co. v. Zernecke, 59 Nebr. 689, 82 N. W. 26.

sonification of the ship in admiralty law is another. Other examples are afforded in the liability of the husband for the torts of the wife, the liability of a master for the acts of his servant."() It is obviously only necessary to place on the statute books of the same State the two provisions last cited-i. e., the one giving the employee the status of a third person and the one making the undertaker responsible for damages resulting from the conduct of his business-to attain the full extent of the protection proposed by compensation legislation.

A text writer discussing this subject says:

* * *

If the rule of absolute liability is held to be unconstitutional, 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 culpability can be imputed to him. 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 intelligent 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 sanctioned by the United States Supreme Court. (165 U. S., 180. [See St. Louis & S. F. R. Co. v. Mathews, 165 U. S., 1]) It also underlies the rule of respondeat superior, since the employer can not relieve himself from liability for the act 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 consistency therefore demand. that liability irrespective of negligence should not be denounced as unconstitutional. The required element of causation may readily be found in the voluntary employment of dangerous instruments or agencies. (')

In connection with the above quotation, the construction of the federal employers' liability law of 1906 (and in respect of the points involved the provisions of the act of 1908 are the same) may be considered, as it was discussed in the case Howard v. Illinois C. R. Co. (207 U. S. 463; 28 Sup. Ct. 141). Justice White, delivering the opinion of the court, said:

Besides, the statute, it is urged, discriminates against all who engage as common carriers in interstate commerce, since it makes them responsible, without limit as to the amount, to one servant for an injury suffered by the acts of a coservant, even in a case where the negligence of the injured servant has contributed to the result, hence placing all employers who are common carriers in a disfavored and all their employees in a favored class. Indeed, it is insisted that the statute proceeds upon contradictory principles, since it imposes the increased responsibility just stated upon the master presumably

a Chicago, etc., R. Co. v. Zernecke, 183 U. S. 582; 22 Sup. Ct. 229. See also Chicago, B. & Q. R. Co. v. Wolfe, 187 U. S. 638; 23 Sup Ct. 847.

Freund, The police power," sec. 634.

62717°-No. 90-10- -18

in order to make him more careful in the selection of his servants, and yet minimizes the necessity for care on the part of the servant by allowing recovery although he may have been negligent.

But without, even for the sake of argument, conceding the correctness of these suggestions, we at once dismiss them from consideration as concerning merely the expediency of the act and not the power of Congress to enact it.

And Justice Moody in discussing the substantial provisions of the statute in his dissenting opinion pointed out that "the remedy afforded by it is more generous to the employee than that given by the common law in several respects "-first, in allowing recovery of damages for death resulting from negligence; second, in abrogating the defense of fellow-service; third, in exacting a provision as to comparative negligence, by virtue of which the contributory negligence of the injured person does not bar recovery, if the employer's negligence is greater, but only serves to reduce the amount of damages recoverable; and, fourth, by making void all contracts relieving the employer from liability for injuries received by the employee in the course of employment; concluding, "Thus four doctrines of the common law restrictive of the employee's rights are supplanted by others more favorable to him."

Justice Moody then said:

There can be no doubt of the right of a legislative body, having jurisdiction over the subject, to modify the first three of these rules of the common law in the manner in which this act of Congress does it. They are simply rules of law, unprotected by the Constitution from change, and like all other such rules must yield to the superior authority of a statute. They have so generally been modified by statute that it may well be doubted if they exist in their integrity in any jurisdiction. Whenever the legislative power to change any of these rules of the common law has been drawn in question in this court it has been sustained.

* * *

It may be recalled in this connection that the statute in question has been declared constitutional in the Territories and the District of Columbia: (a) while in respect of the fourth point, relating to contracts of waiver, a decision of the court of appeals of the District of Columbia held this provision to be constitutional. (") This provision of the law of 1908 was referred to in a very recent case as intended to prevent the evasion of the other provisions of the act. (^)

That compensation legislation prescribes the conditions of contracts between employer and employee and changes largely the legal consequences and incidents of such contracts is indisputable. It seeks to

El Paso & N. E. R. Co. v. Gutierrez, 215 U. S. 87, 30 Sup. Ct. 21, referring with approval to the ruling of the court of appeals of the District of Columbia to the same effect, Hyde v. R. Co., 31 App. D. C. 466; 36 Wash. Law Rep. 582. McNamara v. Washington Terminal Co., 38 Wash. Law Rep. 343.

• Watson v. St. Louis, I. M. & S. R. Co., 169 Fed. 942.

improve the status of the employee, and in doing so devolves upon the employer the duty of administering the benefits provided, whether met at his own cost and expense or made a part of the cost of production and distributed among the consumers of his goods or the public served by his undertaking. But even granting that there is as the result of such legislation a shifting of relationships, it does not follow that it discriminates unfairly between employer and employee. Thus a statute regulating the payment of wages in store orders was said to have a tendency to place the employer and the employee upon equal ground, () suggesting a previously existing recognizable inequality; in another case the Supreme Court speaks of it as an established and recognized fact that, in the making of contracts, employers and employees do not stand upon an equality. () Such inequality is easily a result of the growth of corporations and the centralization of business management employing numerous and widely scattered employees, which fact legislatures may recognize in providing remedial legislation. (c)

Many of the points of statutory enactment and of judicial construction noted above, together with other legal considerations, were embodied in the brief presented to the Atlantic City conference and in the report of the New York commission, the latter expressing its conclusion in the following language:

It is on these judicial statements and the authorities which follow them that we base our contention as to the power of the legislature to deal with the question of employers' liability on a basis other than fault. That the matter is clear beyond peradventure we do not assert, but that the legislature, on examining its power to enact the legislation we are about to recommend, will agree that such action is within its constitutional powers, we confidently expect.

STATUTES.

ACTS OF UNITED STATES CONGRESS, 1907–8.

CHAPTER 149.-Liability of railroad companies for injuries to employees. SECTION 1. Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of

a Knoxville Iron Co. v. Harbison, 183 U. S. 13, 22 Sup. Ct. 1. See also Wilson v. State, 7 Kans. App. 428, 53 Pac. 371.

Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383.

New York Central & H. R. R. v. Williams, 92 N. E. 404 (N. Y.) 15; Commonwealth v. Hillside Coal Co., 22 Ky. L. R. 559, 58 S. W. 441.