the police power includes 'all laws for the protection of life, limb, and health, for the quiet of the person, and for the security of property.' 'All persons and property are subjected to all necessary restraints and burdens to secure the general comfort, health, and prosperity of the State.' 'It is co-extensive with self-protection and is not inaptly termed the "law of necessity." It is that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort and welfare of society.' State v. Burdge, 95 Wis. 390, 398 (70 N. W. 347, 349, 37 L. R. A. 157, 60 Am. St. Rep. 123). These and many other similar phrasings, meaning the same thing, are far from being entirely satisfactory. They are misleading to one who reads them without having in mind the idea that all legislative regulations of human affairs interfering with personal liberty or other private rights, to be legitimate, tested by constitutional limitations, must be reasonably for the public benefit.

"It were better to always say that the police power extends to and permits legislation regulating reasonably matters appertaining to the public welfare, since anything beyond that must necessarily fall at the threshold of some constitutional defense. It is a great power, having more to do with the well-being of society than any other, yet one which, if exercised autocratically, would supersede some of the most cherished principles of constitutional freedom. It may be extended disastrously or restrained and administered beneficially, according as the judiciary shall perform its constitutional functions. Confined within its legitimate field of reasonable regulation, it is essential, as we have heretofore indicated, to the full accomplishment of the purposes of civil government."

The learned judge then proceeds to discuss the question under consideration: First, as to whether it was a police regulation; and, second, if it be such a regulation, whether it was outside the field of reasonable interference with private rights. After quoting the language of Chief Justice Marshall in Marbury v. Madison, supra, he then quotes the language of the court in Re Jacobs, 98 N. Y. 98 (50 Am. Rep. 636), as follows:

"It matters not that the legislature may in the title to the act, or in its body, declare that it is intended for the

improvement of the public health. Such a declaration does not conclude the courts, and they must yet determine the fact declared and enforce the supreme law."

We refrain for want of space from further quotation from this able opinion. In this connection, it is well for us to refer to our own decisions.

In People v. Smith, 108 Mich. 527 (66 N. W. 382, 32 L. R. A. 853, 62 Am. St. Rep. 715), referring to certain regulations for the protection of employés, it was said that, if it was a necessary regulation, the law should be sustained; but if an unjust law, it should be annulled. And on page 534 of 108 Mich. (66 N. W. 384, 32 L. R. A. 853, 62 Am. St. Rep. 715), the late Justice HOOKER used the following language:

"If the courts find the plain provisions of the Constitution violated, or if it can be said that the act is not within the rule of necessity, in view of the facts of which judicial notice may be taken, then the act must fall; otherwise it should stand.”

It may be laid down as a general proposition that absolute liability, without fault on his part, cannot ordinarily be imposed upon a citizen. It has been held in numerous cases that a statute making a railroad company liable for stock killed, whether the company was negligent or not, and fixing the damages according to a schedule, was to deprive the company of property without due process of law. A similar statute in Alabama was declared not a sustainable exercise of the police power. Zeigler v. Railroad Co., 58 Ala. 594; Birmingham Mineral R. Co. v. Parsons, 100 Ala. 662 (13 South. 602, 27 L. R. A. 263, 46 Am. St. Rep. 92); Wadsworth v. Railway Co., 18 Colo. 600 (33 Pac. 515, 23 L. R. A. 812, 36 Am. St. Rep. 309); Schenck v. Railway Co., 5 Wyo. 430 (40 Pac. 840); Jensen v. Railway Co., 6 Utah, 253 (21 Pac. 994, 4 L. R. A. 724); Denver, etc., R. Co. v. Outcalt, 2 Colo. App. 395 (31 Pac. 177); Oregon R. Co. v. Smalley, 1 Wash. 206 (23 Pac. 1008, 22 Am. St. Rep. 143); Atchi

son, etc., R. Co. v. Baty, 6 Neb. 37 (29 Am. Rep. 356); Williams v. Railroad Co., 2 Mich. 259 (55 Am. Dec. 59).

In the case last cited this court held that the railroad company was not bound by its charter or principles of the common law to fence its road for the protection of other persons' domestic animals. It is true that the general railroad act introduced a new rule and imposed the duty of erecting and maintaining fences, and made companies absolutely liable for injuries which might result from the neglect of duty. But that is another question. See, also, Parson v. Russell, 11 Mich. 113 (83 Am. Dec. 728).

In Lawton v. Steele, 152 U. S. 137 (14 Sup. Ct. 501), Justice Brown, after defining in general language the term "police power of the State," said:

"To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual or unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of police powers is not final or conclusive, but is subject to the supervision of the courts. Thus an act requiring the master of a vessel arriving from a foreign port to report the name, birthplace, and occupation of every passenger, and the owner of such vessel to give a bond for every passenger so reported, conditioned to indemnify the State against any expense for the support of the persons named for four years thereafter, was held by this court to be indefensible as an exercise of the police power, and to be void as interfering with the right of Congress to regulate commerce with foreign nations. Henderson v. New York, 92 U. S. 259. In Rockwell v. Nearing, 35 N. Y. 302, an act of the legislature of New York, which authorized the seizure and sale without judicial process of all animals found trespassing within private inclosures was held to be obnoxious to the constitutional

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provision that no person should be deprived of his property without due process of law. See, also, Austin v. Murray, 16 Pick. [Mass.] 121; Watertown v. Mayo, 109 Mass. 315 [12 Am. Rep. 694]; Slaughter-House Cases, 16 Wall. (U. S.) 36; In re Cheesebrough, 78 N. Y. 232; Brown v. Perkins, 12 Gray (Mass.), 89. In all these cases the acts were held to be invalid as involving an unnecessary invasion of the rights of property, and a practical inhibition of certain occupations harmless in themselves, and which might be carried on without detriment to the public interests."

He then proceeds to show that the preservation of game and fish has always been treated as within the proper domain of the police power. See, also, Commonwealth v. Bearse, 132 Mass. 542 (42 Am. Rep. 450).

In the last cited case Justice Devens, after defining the police power and quoting the language of Chief Justice Shaw in Commonwealth v. Alger, 7 Cush. (Mass.) 53, 85, said:

"The legislature is largely the judge of its own powers in reference to these matters. If it can be seen, indeed, that the rights of property are invaded under the pretence of a police regulation, it would be our duty to interfere to protect them."

The instant suit is an action on the case sounding in tort. The wrongful injury constitutes the foundation of the plaintiff's right of action; and yet the facts submitted for the purpose of sustaining it show not the least degree of negligence on the part of defendant Thomas. The evidence shows neither a malfeasance, a misfeasance, nor a nonfeasance upon his part. The injury to plaintiff does not warrant the imposition of damages upon one who is not shown to have been blamable in the premises. It has been held, both by this and other courts, that there can be no question of the right of the legislature, in the exercise of the police power, to regulate the driving of automobiles and motor cycles on the public highways of the State; that such machines are capable of being driven, and are apt to be driven at such high rates of speed, and when

not properly driven are so dangerous as to make some regulation necessary for the safety of other persons on the public ways. And the statutes requiring registration and the registered number to be displayed and the rate of speed have been held constitutional as a reasonable exercise of police power. People v. Dow, 155 Mich. 115 (118 N. W. 745); Commonwealth v. Boyd, 188 Mass. 79 (74 N. E. 255, 108 Am. St. Rep. 464); State v. Unwin, 75 N. J. Law, 500 (68 Atl. 110); People v. Mac Williams, 91 App. Div. (N. Y.) 176 (86 N. Y. Supp. 357).

To hold subdivision 3 of section 10 constitutional is to hold a party absolutely liable for the negligent conduct of another, a mere stranger or a wilful trespasser, no matter how careful or free from negligence he himself has been. We think that the result of such holding would be to take the property of defendant Thomas to pay for the wrongful and negligent act of another person not sustaining to him the relation of servant, agent, or employé. Such a doctrine seems unnatural and repugnant to the provisions of the Constitution here invoked. We are forced to the conclusion that the provisions of this subdivision are not a necessary regulation in the exercise of the police power; that in and by its terms the plain provisions of the Constitution are violated; and the subdivision must be held unconstitutional, and the statutory liability therein asserted, done away with.

And in so far as what we have held conflicts with Johnson v. Sergeant, the latter case must be overruled. Had this provision of the statute been followed by language indicating that the owner should not be liable in case the automobile or other motor vehicle was taken or used in violation of Act No. 33 of the Public Acts of 1909, the infirmity would have been cured. The remainder of the act seems unobjectionable. It is evident that the general legislative purpose contained in the act may be accomplished with this objectionable provision stricken out, leaving the act "complete in itself and capable of being executed wholly independent of that which is rejected." Cooley's Consti