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own profit, rather than upon the owner of the property who has no control over or interest in these instruments. Quite aside from the considerations which support such a statutory liability against railroad corporations, it may be added that it is in no sense an extension of the rule of the common law to modern conditions, but in reality a return to the original common-law doctrine under which every person who permitted fire started by him to escape beyond his house or close was liable to every one who suffered loss or injury thereby. The severity of that early English rule was moderated by numerous statutes, among which are 6 Anne and 14 George III. As to these two last-mentioned statutes it has been held that they became by adoption a part of the common law of this State (Thompson's Negligence, vol. 1, p. 148 et seq., notes under "Liability for damages by fire," and Webb v. R., W. & O. R. R. Co., 49 N. Y., 420, 426), under which neither individuals nor corporations are liable for escaping fire unless there is negligence. (Clark v. Foot, 8 Johns, 421; Bennett v. Scutt, 18 Barb., 347, 349; Stuart v. Hawley, 22 Barb., 619, 621; Radcliff's Exrs. v. Mayor, etc., of Brooklyn, 4 N. Y., 195, 200; Calkins v. Barger, 44 Barb., 424; Sheldon . Hudson R. R. R. Co., 14 N. Y., 219; Steinweg v. Erie Ry., 43 N. Y., 123, 127.) The cited cases arising out of injuries inflicted by animals of known dangerous or vicious propensities, and the liability which has often been imposed for the maintenance of private nuisances, we shall not discuss, for we think they are governed by well-settled principles which clearly have no application to the questions now before us.

In the addenda to the instructive brief of the counsel for the commission our attention is called to three decisions of the Federal Supreme Court which have been but recently decided and not yet officially reported. (Noble State Bank v. Haskell, 219 U. S. 104; Assaria State Bank v. Dolley, 219 U. S., 121, and Engel v. O'Malley, 219 U. S., 128.) These cases, it is contended, strongly support the validity of the legislation which we are condemning, because, as counsel asserts, they go directly to the ultimate question: "Is the act an unreasonable regulation of the status of employment?" We have tried to make it clear that in our judgment this statute is not a law of regulation. It contains not a single provision which can be said to make for the safety, health, or morals of the employees therein specified, nor to impose upon the enumerated employers any duty or obligation designed to have that effect. It does not affect the status of employment at all, but writes into the contract between the employer and employee, without the consent of the former, a liability on his part which never existed before and to which he is permitted to interpose practically no defense, for he can only escape liability when the employee is injured through his own willful misconduct. That is a defense which needs no legislative sanction, since it would be abhorrent to the most primitive notions of justice to permit one to impose liability for his willfully self-inflicted injuries upon another who is wholly free from responsibility for them. The case of Engel v. O'Malley (supra) is so clearly distinguishable from the case at bar that we need only state the facts to mark the contrast. The Engel case arose under a New York statute which provides that individuals and firms shall not engage in the business of receiving deposits for safe-keeping or for transmission, or for any other purpose, or in the business of banking, without first obtaining from the State comptroller a license. The same statute further provides that applicants for such a license must pay a prescribed fee, give bonds, and submit to other restrictions. We have already passed upon the constitutionality of certain parts of that statute (L. 1907, ch. 185), in Musco v. United Surety Co. (196 N. Y., 459), which was an action upon a bond given under it, and have held that the regulation of the business of receiving deposits is plainly within the power possessed by the State to regulate the conduct of various pursuits when necessary for the protection of the public" (p. 465). The portion of the statute under consideration in the last-cited case was plainly directed against an obvious evil which vitally affected the public welfare. The city of New York is the gateway through which this country admits each year thousands of poor and ignorant immigrants who deal with individuals and firms engaged in the business of exchanging domestic for foreign money, receiving deposits, and transmitting remittances to foreign ports. It is a business which may, and probably does, attract some irresponsible and mercenary adventurers. A law designed to regulate and safeguard such a business in a way which affects no constitutional property rights, is plainly within the police power of the State. That is all that was involved in the Musco case, and that is the extent to which this court has passed upon the constitutionality of the New York statute (L. 1907, ch. 185). It need hardly be argued that a law passed under

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the guise of such a purpose, but having in fact no relation to it, and ac-
complishing nothing to make the business of receiving deposits more safe,
would be as far beyond the sphere of the police power as an amendment to
the banking law requiring banks and bankers to protect their customers, to
whom they pay moneys, against thefts or other physical losses thereof; or an
amendment to the labor law which would compel the industrial employers to
give each employee a vacation on full pay during two months of every year.
As to the cases of Noble State Bank v. Haskell (219 U. S., 104) and Assaria
State Bank v. Dolley (219 U. S., 121) we have only to say that if they go so
far as to hold that any law, whatever its effect, may be upheld because by the
"prevailing morality" or the "strong and preponderant opinion" it is deemed
"to be greatly and immediately necessary to the public welfare," we can not
recognize them as controlling of our construction of our own Constitution.
That the business of banking in the several States may be regulated by legisla-
tive enactment is too obvious for discussion. That the extent to which such
State regulation may be carried must depend upon the difference in constitu-
tional provisions is also plain. How far these late decisions of the Federal
Supreme Court are to be regarded as committing that tribunal to the doctrine
that any citizen may be deprived of his private property for the public welfare
we are not prepared to decide. All that it is necessary to affirm in the case
before us is that in our view of the constitution of our State the liability sought
to be imposed upon the employers enumerated in the statute before us is a
taking of property without due process of law, and the statute is, therefore,
void.

The judgment of the appellate division should be reversed and judgment directed for the defendant, with costs in all courts.

Cullen, Ch. J., Gray, Haight, Willard Bartlett, Chase, and Collin, JJ., concur; Cullen, Ch. J., also files an opinion, with whom Willard Bartlett, J., concurs. Judgment reversed, etc.

CONCURRING OPINION BY CHIEF JUDGE,

CULLEN, Ch. J. I concur in the opinion of Judge Werner for reversal of the judgment appealed from. I concede that the legislature may abolish the rule of fellow servant as a defense to an action by employee against the employer. Indeed, we have decided that in upholding the so-called Barnes act. (Schradin v. N. Y., C. & H. R. R. R. Co., 194 N. Y., 534.) I concede that the legislature may also abolish as a defense the rule of assumption of risk and that of contributory negligence unless the accident proceed from the willful act of the employee. I concede that in a work, occupation, or business of such a nature that the legislature might prohibit its pursuit or exercise altogether, the legis lature may prescribe terms under which it may be carried on. Plainly, this litigation does not present such a case. The legislature could not revoke the franchise it had previously given to the defendant to operate a railroad. (People v. O'Brien, 111 N. Y., 1.) I am not prepared to deny that where the effects of the work, even though prosecuted carefully, go beyond a person's own property and injure third persons in no way connected therewith, the person for whose account the work is done may be held liable for injuries occasioned thereby. I also concede the most plenary power in the legislature to prescribe all reasonable rules for the conduct of the work which may conduce to the safety and health of persons employed therein. But I do deny that a person employed in a lawful vocation, the effects of which are confined to his own premises, can be made to indemnify another for injury received in the work unless he has been in some respect at fault. I am not impressed with the argument that "the common law imposed upon the employee entire responsibility for injuries arising out of the necessary risks or dangers of the employment. The statute before us merely shifts such liability upon the employer." It is the physical law of nature, not of government, that imposes upon one meeting with an injury the suffering occasioned thereby. Human law can not change that. All it can do is to require pecuniary indemnity to the party injured, and I know of no principle on which one can be compelled to indemnify another for loss unless it is based upon contractual obligation or fault. It might as well be argued in support of a law requiring a man to pay his neighbor's debts that the common law requires each man to pay his own debts, and the statute in question was a mere modification of the common law so as to require each to pay his neighbor's debts. It is urged that the legislation

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before us can be upheld on the decision of the Supreme Court of the United States in Noble State Bank v. Haskell (219 U. S., 104). In support of the claim there is cited from the opinion the following: "It may be said in a general way that the police power extends to all the great public needs. (Camfield v. United States, 167 U. S., 518.) It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare." (P. 111.) It is possible that the doctrine of these two sentences would justify the statute before us and possibly any legislation, if only supported by a sufficient popular demand, but it is both unfair and unsafe to excerpt fragmentary sentences from the opinion of a court and interpret them apart from the context of the whole opinion. However that may be, the decision in the Noble Bank case is not controlling upon this court in the construction of the constitution of our own State, and I am not disposed to accept it, at least until it has received the approval of a majority of the court. I concur with Judge Werner that the act, as applicable to the case before us, can not be considered as an exercise of the power of the State to regulate corporations. The act is general, not confined to corporations, and even if it were, I think its effect would be a deprivation of property not authorized by the reserved power to regulate.

As to corporations hereafter formed, the question is very different. The franchise to be a corporation is not one inherent in the citizen, but proceeds solely from the bounty of the legislature, and for that reason the legislature may dictate the terms on which it will be granted and require the acceptance of the provisions of this act as a condition of incorporation. (Purdy v. Erie R. R. Co., 162 N. Y., 42; Minor v. Erie R. R. Co., 171 N. Y., 566; People ex rel. Schurz v. Cook, 110 N. Y., 443; S. C., 148 U. S., 397; Chicago, R. I. & Pac. R. R. Co. v. Zernecke, 183 U S, 582.) Even in the case of existing corporations, the corporate existence of all those created since the constitution of 1846 may be revoked by the legislature, though the property rights of such corporations and their special franchises other than the one to be a corporation can not be impaired. (Const., Art. VIII, § 1; Lord v. Equitable Life Assur. Socy., 194 N. Y., 212.) The property and franchise would have to be managed by the owners as partners or tenants in common, and the legislature might require as a condition of the continued right to be a corporation that before the expiration of a reasonable period the provisions of the statute should also be accepted by them. They are in the cndition of a tenant at will who, when the landlord raises the rent, must either comply with his terms or, after the expiration of a reasonable time prescribed by a notice to quit, surrender his rights under the lease. But individual citizens, following the ordinary vocations of life, asking no favors of the Government, whether a corporate or other franchise, but only the protection of life and property, which every government owes to its citizens, and guilty of no fault, can not be compelled to contribute to the indemnity of other citizens who, by misfortune or the fault of themselves or others, have suffered injuries, except by the exercise of the power of taxation imposed on all, at least all of the same class, for the maintenance of public charity. Of course, I am not now referring to obligations springing from domestic relations.

Willard Bartlett, J., concurs.

Judgment reversed, etc.

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MONDAY, OCTOBER 16, 1911.

CONGRESS HOTEL, CHICAGO, ILL.

The commission met at 10 o'clock a. m. Present: Senators Sutherland (chairman) and Chamberlain; and Hon. William G. Brantley and Hon. Reuben O. Moon, Members of the House of Representatives; W. C. Brown, president New York Central Railroad; and D. L. Cease, editor The Railroad Trainman; also the secretary, Launcelot Packer, Esq.

The CHAIRMAN. The secretary will read the notice which was sent out, in response to which this meeting is being held.

(The secretary, Mr. Packer, read the following notice:)

EMPLOYERS' LIABILITY AND WORK MEN'S COMPENSATION COMMISSION,

WASHINGTON, D. C.

This commission, which was created under joint resolution of Congress, to make a thorough investigation into the subject of employers' liability and workmen's compensation, has the duty of transmitting a report by the 1st day of January, 1912, and of recommending to Congress such legislation as seems desirable.

The commission, finding that its inquiry involved two main divisions-the one constituting an inquiry into the facts surrounding industrial accidents and the other an inquiry into the legal limits under which Congress can legislateformed two subcommittees, viz, a subcommittee on fact and a subcommittee on law.

The commission hereby invites all those who may be interested to attend a public meeting to be held before it on October 16, 1911, at 10 a. m., in green room, Congress Hotel and Annex, Chicago, Ill., to submit facts surrounding industrial accidents and present their views in relation thereto, and also to submit any further information concerning the power of Congress to legislate on the subject of workmen's compensation, with outlines of such possible legislation, if they so desire.

By order of the commission.

LAUNCELOT PACKER, Secretary.

The CHAIRMAN. Before beginning the hearing this morning, by direction of the commission, I desire to make a short preliminary announcement. This meeting was called primarily for the purpose of hearing those who could not conveniently appear in Washington, and it is the desire of the commission that these meetings be confined to them as far as possible. Of course, we do not desire to cut anybody off who is here and desires to be heard, even though they may come from Washington itself.

It is the thought of the commission that we will hear whoever desires to be heard in Chicago, and then the commission will take an adjournment to meet in Washington probably on next Monday. That will be a meeting of the commission itself-an executive meeting, and not a public hearing. At that meeting it is the intention of the commission to take up this question, discuss it among ourselves, and determine first of all whether we can do anything along the lines that have been suggested. If we determine that we can, that Congress has power to deal with this subject, and that it is 301980-S. Doc. 338, 62-2, vol 2-36

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advisable for Congress to deal with i determine as far as we can the specific p For example, as to whether or not in t it shall be confined to the interstate undertake to cover a broader field. question, we will decide whether or no lines of the English system, for examp or of a modification of either, or of bo among ourselves what general plan v Of course, that plan will be tentative. been rather a survey of the entire fiel entire field with a view of settling in plan we might follow. After this me we ought to be in a position to put ou part of the field that we want to go int

After that meeting of the commission announcement of the general tentative c mission shall come, and then call a fina we will be glad to hear from those int plan that has been outlined, with sugges we will be in a position to prepare our r work of a suggested bill to hand to the January, at which time, under the law,

Judge Moon suggests that there are s employers' side of the question, if it c and also lawyers representing the othe heard, and so far as convenient to the them in Washington after this prelimin spoken.

Now, is there anything else that the think of?

Mr. BROWN. I think that covers the

The CHAIRMAN. This meeting is calle all those who desire to be heard. It is terested in the subject. I will ask, firs will report who desire to be heard here. Mr. W. S. CARTER. Mr. Chairman an sion

The CHAIRMAN. Will you give your Mr. CARTER. W. S. Carter. The CHAIRMAN. W. S. Carter; and represent?

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Mr. CARTER. I perhaps represent my Brotherhood of Locomotive Firemen a tion of railroad employees in train serv

The CHAIRMAN. Now you may proce will be very glad to hear from you at su

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