Western Indemnity Co. v. Pillsbury

While I cannot agree with the judgment of my associates, were this an ordinary case, I would remain silent, believing as I do that in general a dissenting opinion works a harm in unsettling confidence in a court, seldom compensated by the value of the dissenter's views. But in the instant case the momentous nature of the constitutional questions involved imposes the duty of speech.

Three decisions, where the scheme of compensation is compulsory have been cited and reviewed. One is Ives v. South Buffalo Ry.Co., 201 N.Y. 271, [Ann. Cas. 1912B, 156, 34 L.R.A. (N.S.) 162,94 N.E. 431]; the second, State v. Clausen, 65 Wn. 156, [37 L.R.A. (N.S.) 466, 117 P. 1101], the third is Jensen v.Southern Pacific Co. The Ives case is rejected in toto, and the majority opinion adopts the reasoning, the citations and much of the language of the Washington case as supporting the law here under review. Yet so different is the Washington case from ours in all vital aspects, in form and substance, in spirit and essence, in cause and consequence, in means and results, that the two are not even of remote kin to each other. Every word of reasoning employed by the Washington court may be, and may be conceded to be, perfectly sound as applied to the law there under review (and of course every legal utterance must be taken in connection with the facts to which it is addressed, in that case the Washington statute) and yet have neither pertinency nor applicability to another law a stranger to it in every essential demanding judicial analysis. So heavily does the prevailing opinion lean upon the Washington decision that it becomes obligatory to establish this statement.

What then was the Washington law? It dealt solely with employees in extra hazardous employment and with their employers. Because of inevitable casualties occurring to such employees, regardless of fault or negligence, because of the slowness and inadequacy of the method of compensation under proceedings in court, and because the welfare of the state so demanded, it withdrew all right of judicial inquiry into the question of compensation for injuries or death arising in the course of such extra hazardous employments and made provision for the relief of the injured and for the family of the killed, regardless of negligence or fault, by exacting a payment from each employer of a certain annual sum based upon his pay-roll. These sums were to be paid into the state treasury and to be devoted exclusively to the indemnification of those engaged in such extra hazardous occupations who met with accidents, or to the relief of the family and heirs of those who met with death.

What is the reasoning of the Washington court upon this law? It is as follows: The act is not based upon any express constitutional grant of power, and is sustainable, if sustainable at all, as an exercise of the police power (Our law is based on an express constitutional grant, needs no support as an exercise of the police power and is not even referable to the police power, as I shall hereafter show): the exercise of the police power is always subject to judicial review on the question of its reasonableness (Our law, like every law based on an express constitutional grant of power, may be unreasonable, cruel, and oppressive, but it is not subject to judicial review on this account because it is a part of the supreme law of the state): employees in extra hazardous occupations are appropriate subjects of protective legislation under the police power, because of the nature of their tasks, their greater danger of injury, their condition generally of dependence on their wages and other like considerations too apparent to require exposition (Our law makes no such discrimination, exercises no selective discretion, but says that every employer shall pay a fixed sum of money to every injured employee): the liability upon the employer being a payment into the treasury of a percentage based on his payroll, and therefore on the amount of his business, is in its essence a tax, a license-fee or toll, "partaking both of the nature of a license for revenue and for regulation; and as such we find nothing in principle inimical to either the state or federal constitutions." The quotation is from the Washington decision. Such and similar liabilities have been created by statute and are not unconstitutional. (In our law there is no element of fee or tax or toll; no limitation upon liability as under the Washington law; no payment into a fund created and controlled by the state under its police powers, but a direct mandate by the state upon A to give his property directly to B, if B suffers injury while in his employ. The two kinds of liability are as wide apart as the polls, the one being reasonable, determinate, and fixed as a regulatory fee under the police power, the other a liability imposed by fiat of the sovereign power, without regard to the police power, commanding that all employers pay directly to all employees indeterminate sums, — amounts which may ruin them — based upon no fault of the employer, but solely on the circumstance of the relationship.) Such is the Washington law and decision. No one can seriously question the soundness of the reasoning and conclusion of the Washington court as applied to the law before it. Indeed, without in the least disparaging the great learning, research, and pellucid presentation made by the distinguished author of the opinion, nor yet the value of it to both bench and bar, it may be said that the Washington law could have been supported and the case securely rested on the authority alone ofNoble State Bank v. Haskell, 219 U.S. 104, [Ann. Cas. 1912A, 487, 32 L.R.A. (N.S.) 1062, 55 L. Ed. 112, 31 Sup. Ct. Rep. 186] — which case indeed is cited and quoted. The following language from the Haskell case is the essence of the decision: "In the first place it is established by a series of cases that an ulterior public advantage may justify a comparatively insignificant taking of private property for what, in its immediate purpose, is a private use. (Cark v. Nash, 198 U.S. 361, [4 Ann. Cas. 1171, 49 L. Ed. 1085, 25 Sup. Ct. Rep. 676];Strickley v. Highland Boy Mining Co., 200 U.S. 527, 531, [4 Ann. Cas. 1174, 50 L. Ed. 581, 20 Sup. Ct. Rep. 301]; Offield v. NewYork etc. R.R. Co., 203 U.S. 372, [51 L. Ed. 231, 27 Sup. Ct. Rep. 72]; Bacon v. Walker, 204 U.S. 311, 315, [51 L. Ed. 499, 27 Sup. Ct. Rep. 289].) And in the next, it would seem that there may be other cases besides the every day one of taxation, in which the share of each party in the benefit of a scheme of mutual protection is sufficient compensation for the correlative burden that it is compelled to assume. See Ohio OilCo. v. Indiana, 177 U.S. 190, [41 L. Ed. 729, 20 Sup. Ct. Rep. 576]. At least, if we have a case within the reasonable exercise of the police power as above explained, no more need be said."

The character and scope of the Washington case has been sufficiently set forth. A word of similar explanation is due to the Ives case. The law in that case imposed a fixed arbitrary liability upon employers for compensation to employees injured through no fault of the former. In this aspect it is identical in principle with our own law. Unlike our law, however, it limited this liability to employees in extra hazardous occupations, and it had no express constitutional authority to support it. The court of appeals of New York held that the liability so imposed worked an unconstitutional taking of property in violation of article I of section 6, of the constitution of New York, and of the fourteenth amendment of the constitution of the United States. In this I believe the New York court to have reached an unassailable conclusion. The court's opinion in the Ives case has been construed to mean that the legislature can create no liability unknown to the common law, precisely as the Washington case has been construed to mean that that court has said that the legislature may create any new form of liability, though it work the confiscation of property. Neither construction is warranted. The court of New York no more said the one thing than did the court of Washington say the other. The New York court said that the liability under its review did violence to common-law principles, to the spirit of our jurisprudence, and to constitutional safeguards, state, and national. In this I think it was absolutely right. The Washington court declared that the liability under its review was in the nature of a regulatory tax or toll, reasonable in character and limited in amount, addressed to a subject (the employees in extra hazardous occupations) peculiarly calling for the exercise of the police power, and promoting their welfare by means sustainable under all authorities, at least since the decision in Noble State Bank v.Haskell, 219 U.S. 104, [Ann. Cas. 1912A, 487, 32 L.R.A. (N.S.) 1062, 55 L. Ed. 112, 31 Sup. Ct. Rep. 186]. In this (aside from consideration of the deprivation of employer and employee of the right of trial by jury, — of the common-law right secured by the constitution to prosecute and defend an action in tort for negligence) I think it was absolutely right. Our case is essentially the Ives case. Here, as subsequently in New York by constitutional amendment, the difficulties with the law arising under the state constitution have been eliminated by making the law, in effect, a part of the constitution.

The court of appeals of New York has affirmed the constitutionality of its new law based on this constitutional amendment in the recent case of Jensen v. Southern Pacific Co.,215 N.Y. 514, [109 N.E. 600], cited in the prevailing opinion. The decision itself is a disappointment in not making it plain how a mere amendment to the state constitution can set aside the legal conclusion that such a law does violence to the federal constitution, as was so distinctly declared and so ably reasoned in the Ives case. The learned author of the Ives case does not participate in the Jensen decision, and the Jensen decision contents itself, first, with the declaration that the statutes under consideration in the Ives case and in the Jensen case are so radically dissimilar that the Ives case ceases to be applicable as authority; and, in the second place, the opinion in the Jensen case turns to the decision of the supreme court of the United States in Noble State Bank for its support, after reasoning apparently that the compulsory scheme of insurance contemplated in the new act does away with the vice of the imposition of a direct pecuniary liability without fault. The statute under consideration in New York is in many respects similar to the statute of this state. It differs, however, in one particular of consequence. It applies only to employees in hazardous or extra hazardous occupations, not to all employees, as does the law of this state. A reasonable argument may be made that employees in such occupations will be presumed to be dependent, for, if not dependent upon their occupations they would seek safer modes of employment. But no such argument can, of course, be made in support of our law.

If I correctly apprehend the views of my associates, some of them hold that this direct liability imposed on the employer to pay his employee is valid as an exercise of the police power, others hold that by the insurance feature of the act this liability is transformed till it becomes a mere license fee or toll as is the Washington case, or a "comparatively insignificant" contribution, in the nature of such a fee, properly exacted as an exercise of the police power under the authority of the Haskell case, as held in the Jensen case. The Ives case flatly, and I think correctly, held that the imposition of the liability did violence to the constitution of the United States. The later decision does not in the least attempt to explain how the difficulty is obviated by an amendment of the state constitution, but declares merely that the compulsory insurance made a part of the law places the whole law within the protective sanctuary of the Haskell case. In a sense there is a similarity between the Haskell case and the New York case. It appears in this. In the Haskell case people who had actually sustained loss were to be made whole. These people were depositors in banks that had failed. In the New York case, its law being addressed only to employees in hazardous occupations, it might be assumed, as has been said, that such employees were dependent on their wages, and thus in need of indemnifying assistance, or they would not be engaged in such employments. But our law nowhere nor in the remotest degree exercises this amount of selection and discrimination, but bestows its bounty on all. But more important still, I am utterly unable to perceive how a liability fundamentally illegal and void may be metamorphosed into a legal liability by a compulsory law requiring the employer to insure against it. Manifestly the insurance is not even designed for the employer's benefit, since he is subject to additional penalties if he does not insure; it is for the benefit of the employee. The result, therefore, is but to impose another burden on the employer. He may be willing to take the risk of accidental injury. There may to his employees occur no such injury, but he is still obliged to pay out, by way of insurance, money exacted from him because the state had seen fit to threaten him with an illegal liability if he does not insure against that illegal liability. So I say the element of insurance is the importation into the discussion of a false and irrelevant quantity. If the primary liability is legal it requires no appeal to the insurance provisions for its support. If it is not legal, then the argument is simply a declaration that an illegal liability is made legal because it may or must be insured against. This same argument may be applied in complete justification of the destruction of the Lusitania — and, indeed, is advanced by Germany. Germany proposed to destroy the Lusitania. Conceding that this destruction would impose an illegal loss upon American lives and property, Americans were formally warned of the danger they would incur by traveling or sending goods on that ship. Full opportunity was thus given them not to travel or to ship goods (as in the Haskell case the Oklahoma bank could cease business), or if they traveled or shipped, then by paying a less sum they would receive indemnification against the greater prospective loss of life or property (the insurance of the present law). Self-interest demanded that they do one or the other. If they refrained from traveling or shipping, they were unharmed. If they insured they deliberately made their choice and protected themselves against the primary illegal liability which thus was eliminated, leaving the sole remaining question a private one between insurer and insured. Do such arguments and reasoning satisfy the law in the one case any more than in the other?

The other cases (and their number could be greatly multiplied) to which the prevailing opinion turns for support, are one and all cases where the provisions of the acts in question are optional and elective, and their consideration has no more to do with the legal questions presented in this case than would any other legislative plan of arbitration for the settlement of differences upon the part of those who might choose to adopt its method. The laws of foreign nations legislating under no constitutional restrictions can, of course, throw no light on this discussion, though it may be noted that those laws usually provide for an insurance fund, contribution to which is not made by the employer alone, but by the employee and by the state.

No one may cavil at the declaration of the Washington court that a liability may be created and placed upon an individual without fault on his part. Indeed, the supreme court of the United States so declares (Chicago etc. Ry. Co. v. Zernecke,183 U.S. 582, [46 L. Ed. 339, 22 Sup. Ct. Rep. 229]), and so also does the highest court of New York in the Ives case. But neither the supreme court of Washington nor of the United States, has ever announced that such a liability as this may be so created. Addressed as were the remarks of the Washington court to the creation of a liability growing out of the legitimate exercise of the police power, which liability was in the nature of a fixed and limited fee, tax, or toll, its remarks were sound and its citations apposite. Such instances of liability without fault, as in deodands, where the inanimate instrument causing death was in a superstitious age of the common law treated as an evil-doer, taken from the owner and forfeited to the king to be by him given in alms to God; or the personification of a vessel in admiralty where from a conceived necessity to do justice the ship is regarded as a responsible person; such instances also as the liability of the husband for the tort of a wife under the common-law rule that made the two spouses one person and the husband that one, and of the liability of the master for his servant's acts under the maxim, "qui facitper alium," to me are utterly without significance in this consideration. All other approved instances of a liability thus created by statute are in fact based on fault directly or inferentially chargeable against him on whom the liability is imposed (It is so and so interpreted in the last Federal Employment Liability Act in 2d Employers Liability cases,223 U.S. 1, [38 L.R.A. (N.S.) 44, 56 L. Ed. 327, 32 Sup. Ct. Rep. 169]), or grow out of the exercise of the police power, where it is of course fundamental that liability to expense or to loss of property arising from a legitimate exercise of that power affords no ground of objection to the law. I need not dwell upon this, for to my mind convincing analysis and presentation are made in the opinions of Justice Werner and Chief Justice Cullen in the Ives case.

So much, therefore, for the essentials broadly differentiating the Washington law from our own. I have said that in no sense is our law an exercise of the police power. It could not appropriately be described as "revolutionary" if it were, for there is nothing revolutionary about the police power or an exercise of it which is legitimate, as this is held to be. The police power, at least under a constitutional democracy such as ours, being inherent in sovereignty, finds expression in wise, reasonable, and just legislation for the protection and betterment of all or part of the people. The police power needs and has no written charter for its exercise. It exists as an attribute of sovereignty without express constitutional grant. But always, in this country, its expressions have been subject to review by the courts as to their reasonableness. And the basic question always asked and answered as to every police-power law is, "Does the law impose a reasonable regulation for the benefit of the people, reasonable as to the end to be obtained, reasonable as to the means adopted to attain that end"? If so, of the incidental expense which the owner of property may have to bear to comply with such regulation he cannot complain. Or does it, under the guise of regulation, impose an unjust and uncalled for restraint on liberty or burden on the owner of property? If so, it is unreasonable, and this unreasonableness renders it obnoxious to the constitutional provisions guaranteeing equal protection, and forbidding confiscation. Of course, if the police power is as declared in the Washington case, quoted with approval in the prevailing opinion, — namely, the "power to govern," then there is an end to discussion. For thus defined it embraces every attribute of sovereignty, and all dissertations on the due or undue exercise of that power in reams of writing by every court from the supreme court of the United States down are but idle vaporings.

So I repeat this law has not the slightest reference to the police power and it does not conduce to clear reasoning so to refer it. If it were referable to the police power no direct constitutional grant would be necessary to sustain it. The constitutional declaration that an employer without fault shall deliver over his property to an injured employee has no more relation to the police power than would a declaration that the legislature may at any time take the property of the prosperous and bestow it on the needy. It is simply the expression of a mandate by the highest state authority. It is the supreme law of this commonwealth. If the legislative enactment before us passed under its authority conforms to the constitutional declaration (as it is held to do) it may be arbitrary, oppressive, confiscatory, — what you please, — but it is not subject to condemnation for any of these reasons. With whatever other constitutional provisions it may conflict, it matters not. This is the last expression of sovereignty. It controls and supersedes all others. Therefore, I think that the protagonists of this constitutional provision were the better reasoners when they caused their views to be embodied in a constitutional enactment, and did not trust them to a mere act of the legislature "referable to the police power."

So important is this consideration that, at the risk of tediousness, I must make my meaning clear. The power absolute over all life and property within a state is sovereignty. The exercise of that power cruelly or humanely, justly or unjustly, was vested in the chief, the despot, the autocrat, the tyrant, the dictator. The subject who would not submit fled, or revolted, or died. This is the concept, the foundation of authority upon which rests the present day state. In a constitutional democracy such as ours, the only difference is that the exercise of that power has been transferred from the autocrat to the people, who express their will in an ordained way. Under a determination to check themselves from the consequences of their own ill-timed passionate outbursts, to secure the minority from unjust assaults, to give equality and humanity to their edicts, they have declared what they will not do, that is to say, what they will not permit their agent, the legislature, to do in their name. This is the meaning and the prepotent significance of a written constitution. It is the curb which the sovereign has put upon his own unbridled powers. And so we find many restrictions in our constitutions which are most informing to the reflective mind. Cruel and unusual punishments are forbidden. Who, to-day, desires to inflict such punishments? Nevertheless, it is deemed necessary still to say that the sovereign, the people, will not inflict them, since sometime in the heat of passion it may be tempted to do so. Let me conclude this with a brief quotation which aptly presents the matter:

"When the people finally came into power, and free citizenship began to supersede hereditary royalty, the people were informed that this `sovereignty' was theirs; this glorious prerogative, this `absolute, indivisible, and inalienable power' to do whatthey liked. Who, falling heir to such a splendid heritage of license, would look to see if it were not, after all, only a tarnished relic of vanished past?

"And so, `sovereignty' has come down to us, and its possession is claimed by us in moments of need, as a charter of exemption from the Moral Law affording us carte blanche to start out — if we only do it as a nation, and by a formal act of government — upon any expedition of plunder and destruction that our `interest' may prompt us to undertake."

(David Jayne Hill — North American Review, June, 1915.)

It does not clarify the situation, but "darkeneth council," to discuss such a law as this as laying down a "rule of conduct." Lexicographers and jurists struggling to pack the meaning of a very broad and abstruse subject within the box of a few confining words, have universally failed. The definition of law as a rule of conduct is one of these failures. Our law defines and punishes murder. Only inferentially at the most can this law be said to prescribe a rule of conduct. It warns the intending perpetrator of a murder that he will be punished, and only by inference suggests that his "rule of conduct" should be to abstain from the crime. So here our law says that A's property shall be given to B if he employs B. The only "rule of conduct" here laid down, and that inferentially, is that it would be better for A not to employ B.

So, I repeat, (assuming for the moment that the law here under review is fairly within the limits of the constitutional grant — a question for later consideration), it need not be referred and is not referable to the police power. It is an expression of the sovereign will and whatever be its terms, it is the highest law of the state of California, and as such, so far as our own constitutional limitations are concerned, valid beyond parley or peradventure.

But there is yet one higher law which it must not violate and that is the constitution of the United States. Whether or not it does so, necessitates further consideration of the meaning of the act itself. Broadly, it says to every employer, "You shall pay a stated sum of money to every employee who is injured while in your employ, though he be injured through no fault of your own." Why the sovereign people should have said this is perhaps an idle question, since it has said it and its word is final. But as the prevailing opinion finds justification for a flat which it concedes to be revolutionary, something may be permitted in reply.

The law says that for no wrong, for no fault even, the citizen shall give his property to a man injured by the latter's own neglect. Why? In reason only because he has employed that man. But contracts of employment are not wrong. They are not alone desirable, they are absolutely necessary to the welfare of the state. Why should the employer be thus penalized? Answer is made in the prevailing opinion that the law affects only future employments. This would appear to be based upon the reasoning of the supreme court of the United States in the Oklahoma Bank case(Noble Bank v. Haskell, 219, U.S. 580, [55 L. Ed. 341, 31 Sup. Ct. Rep. 299]), to the effect that if a bank did not like the law taking from it a part of its deposits for the benefit of strangers, it could cease business in Oklahoma. But shall this law find support in a similar declaration that, not liking it, no one need employ another? Such an answer would lack something of complete satisfaction. American citizenship has been bred in the belief that to each man was given the utmost liberty of contract, of initiative, of action, so long as he did not trespass upon the equal rights of his fellows. It has been told and taught that a man was responsible for his wrongs, civilly or criminally, or both; but it has also been told and taught that where one had committed no wrong he walked scatheless and unharmed in person and property.

Again it is said that it is thought expedient that the loss by injuries to workmen should be borne by the industries and not by the men. But this is only a euphemism which obscures the facts and darkens reason. It is like other happy catch-phrases that deceive the mind by pleasing the ear. We have many such. "Putting the rights of property before the rights of men," is one — as though property apart from those of its human owner, ever did or could have any rights. So that the rights of property are absolutely the rights of men.

A fee or toll, as in the Washington case, based on the magnitude of the business, or, more equitably still, on its profits, may fairly be said to be a charge placed on the industry, but here it is not the industry which bears any burden. It is the employer who pays without regard to his industry. The payments exacted may sweep away from him not only his industry, but all else as well. It may leave him penniless. It may leave him in still worse plight, compelled to labor for years to pay money to those he has never injured, to those against whom his only offense is that he gave them honest employment at an honest wage. Is this making the industry pay? Does not the state value initiative and ability, thrift, and economy? One man working at a given craft with five others, by the exercise of these qualities, saves enough to become their employer. They are fairly treated, and liberally paid. He works with them. By an explosion, due to the negligence of no one, all are killed. If the employer lives he is ruined, and his future lifework must be devoted to paying those he had not wronged. If he dies with them, from his estate must come the death awards to the others, even if it leave his own family destitute. Nor is this all. For every injury occurring through the neglect or intent of a stranger the employer is equally responsible. Besides his own uncompensated loss he will be mulct to pay for the crimes of the murderer and anarchist, as in the awful tragedy of the Los Angeles Times explosion; or for the act of God as in State v. District Court,129 Minn. 502, [153 N.W. 119], where the employer was held liable for the death of a teamster killed by a stroke of lightning. Truly it is a bemusing euphemism that talks of the "industry" bearing such burdens which are not even based or proportioned on the magnitude of the industry, its profits, the wealth of the owner of it, or the needs of the persons benefited.

Again it is implied, if not said, that this law is designed to relieve the "workman" from the loss to him resulting from his injuries. Much, indeed, could be written of the desirability, the humanity, of affording speedy relief to the toiler dependent upon his own exertions for the support of himself and his family. I, for one, earnestly favor and advocate the passage of a proper law for such a purpose. But, as touching this law, it is too plain for words that it has no such humane origin or purpose. It is not the needy "workman" who alone is to be benefited by it. With a generosity so often displayed in giving away that which is not our own, it donates the employer's property to every employee regardless of his position or his needs. The wealthiest of attorneys, under annual retainer, breaking his leg while hurrying to court to argue a time demurrer for his client, comes under its beneficent provisions. Every high placed and high salaried official in railroad, bank, manufactory, mercantile house, or mine, is equally the recipient of this law's bounty. Nor is this all. These men, one would say, of all men in the country, are best capable of looking out for their own interests. But this law says not. They are denied the right of contract, — the right to waive the provisions of this law. It insists, in short, that they shall take their employer's money.

The mere fact that a man is an employee does not commend him to the especial care of the state any more than does the mere fact that he is an employer so commend him. All men stand alike in the regard of the state, equally share its protection, and should in proportion to their wealth equally be called on to bear its burdens. That is the meaning of taxation. It is the circumstance of dependency arising from injury or death that alone appeals to the consideration of the state, and justifies it in setting in motion the machinery of its police power. This I think cannot be questioned, and being so it follows inevitably that this police power cannot be exercised except to relieve from and forefend against such dependency. But this in turn inexorably demands a segregation of employees into three classes; those dependent on their earnings; the intermediate class who are in part dependent on their earnings; and the third, those who are not dependent on them; and in the case of injury or death an inquiry into the actual dependency on his wages of those who constitute the family of the deceased. Upon two of these classes the police power may act. An extension of its benefits to the third is an unjustified donation to it of others property. So I say for its failure to classify, this law is not referable to the police power; and, unless, without the slightest warrant or authority in fact or in law, this court erects the conclusive presumption, that every employee and every member of his family is so dependent, it cannot be held valid.

It seems to me, therefore, to be beyond the limits of reason to erect a "theory" that this law is passed for the benefit of the "workman," and even if the theory is tenable, then I say the means are so grotesquely disproportionate to the end as to be ridiculous if they were not so destructive. It is using a thousand horse-power engine to lift a pin. It is cutting down a forest to secure a bird's nest.

But if all this be put aside, if it be said, as does the prevailing opinion, that this law is framed upon the theory of benefiting the workman by taking the property of his employer and giving it to him whenever he is injured (for this, stripped of the fine raiment of covining phrases is exactly what this law does), it still is to be determined whether this theory is worked out in consonance with the constitution of the United States.

As the decision in this case will doubtless pass under the scrutiny of the supreme court of the United States, it is not unnatural that this law should have been placed in the sanctuary of the police power. I have said, and endeavored to show, that it is not referable to that power. But, conceding that it be, I have no hesitation in entering that field of argument with the declaration that as an exercise of the police power, it is utterly unreasonable, unjust, and oppressive. I recognize in saying this that the supreme court of the United States has justly shown the utmost liberality in sustaining all state and federal laws which by any tenable process of reasoning could be upheld as legitimate exercises of that power. But this law, I insist, transcends anything that the history of the country has known, and unless the definition of the police power be broadened by the supreme court of the United States to the extent of saying that when exercised under the authority of a state constitutional grant its expression is not subject to that court's review on the ground of unreasonableness, oppression, or confiscation, that such an expression is a declaration of the will of the sovereign, who may do as he or it pleases, then I repeat that, treating this law as an exercise of the police power, it is violative of the fourteenth amendment of the constitution of the United States, and therefore void.

Many of the grounds of this conviction have hereinbefore been expressed. It may not be amiss, however, to particularize further. An act clearly and unmistakably designed to safeguard or to better the condition of the people is indisputably within the purview of the police power. This act may be, for the purposes of the discussion to follow, conceded to be so designed. This, however, is but the first step toward the goal. It is the determination of only the first factor in the solution of the problem. It is equally important that the means prescribed to attain the result shall be as reasonable and as equitable, as fair and as nonoppressive, as the nature of the end to be achieved will permit. And it is here again that I think the reasoning of the prevailing opinion goes astray. It seems to be argued that because the end is a consummation devoutly to be wished, the means are negligible and may be either brushed aside or treated with the slight deference which their inconsequence demands. This is not a new doctrine. It has been advanced in the past. It is urged to-day by nations warring for existence, but it never has had the sanction of the law. Nor does it mean that one condemns the purpose of a law because he withholds approval of the method of the law. I earnestly advocate the payment of Paul, but as earnestly condemn the robbing of Peter to accomplish this end. And this is the precise situation presented by this law. The state, it is quite true, is profoundly interested in the welfare of all its people. There are especial considerations, economic, and humane, which merit and demand legislation on behalf of dependent wage earners. As a part of such legislation, laws to relieve their necessities and the necessities of their dependents when affliction and inability to labor overtake them, are commendable and just. But it is never to be forgotten that it is the state and not any individual member of the body politic to whom the welfare of those citizens is intrusted, who may make provision for that welfare, and indeed whose duty it is to make provision for that welfare. The mere circumstance that a contractual relationship exists between the employer and the employee forms absolutely no logical basis for the declaration in fact or in law that the employer must support that employee and take upon himself a duty exclusively belonging to the state. No parallelism exists between this transitory relationship created by contract and the all-important duties, rights, and obligations springing out of the domestic relationship of the family. The employer is in no true sense more interested in the welfare of his employee and chargeable with maintaining that welfare (aside of course from the familiar duties of providing safe appliances, comfortable conditions, and the like) than is any other citizen of the commonwealth. And herein lies the unreason and oppression of this law. It places upon the employer, to the peril of his welfare and the loss of all his property, the performance of a duty resting upon the state itself, and so upon every citizen of the state. The argument made in support of this law is that heretofore the employee had to bear the burden of the loss of an injury due to his own neglect, without fault on the part of the employer. The state has seen fit "to shift this burden of loss," to "transfer this burden" from the employee to the employer, and somehow it seems to be believed that by juggling with these phrases it is established that the transfer may be legally made. This argument finds favor with the majority of this court. It is well answered, I think, in the language of Chief Justice Cullen in the Ives case: "But I do deny that a person employed in a lawful occupation, 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 cannot 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 relation 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 certainly a gracious phrase "transferring a burden," when applied to a law which donates to an employee injured by his own negligence the property of his employer, whose sole fault lay in giving him work. To my mind, to declare that this law does no violence to the constitution of the United States, is the exact equivalent of saying that the constitution of the United States does not protect its citizens from the spoliation of their goods and the confiscation of their properties. The maintenance of hospitals for the needy and sick is most commendable, comes well within the purview of the police power; the bankers, the lawyers, may be regarded as forehanded and prosperous men. I can see no reason why, if this law be upheld, the legislature should not declare that each banker and each lawyer should give a tithe of his annual income directly to these worthy and useful institutions. Nay more, I cannot see what legal objection could be found to a law which provided for a general reapportionment of wealth, to the direct end of giving to each person an equal share of this world's goods, for poverty is deplorable in a state as well as injurious to the state and its pauper citizens, and the state may take all legitimate means to relieve and abolish poverty. The tremendous disparity in wealth between our very rich and our very poor is most regrettable and should be remedied if possible. The end therefore may be said to be desirable, and as opposed to the consummation of that end the means are nothing. It may be very well for the state to enter the large field of socialistic paternalism. But let us frankly recognize that that is precisely what such legislation does, and not seek to disguise such laws as police measures.

Still further it is said in the prevailing opinion that the law, being prospective, disturbs no vested right. It disturbs no vested right only upon the theory that no man will hereafter employ another. But I have heretofore said that I do not think that the declaration of the Oklahoma case will ever be given this purport. It is also said that the law provides for a notice and a hearing as to liabilities arising under it. But when a law says that A shall pay one thousand dollars to B if A has employed B and B has suffered injury through no fault of the employer, it needs, I think, no argument to show that under such a prefixed liability based upon no wrong, the requirements of due process of law and of the equal protection of the law are not observed simply because it is open to the employer to show that he did not employ B or that B was not in fact injured. Finally, it is said that it is not supposed that the reasoning which, applied to this law, results in a declaration that it is valid, would be held to apply to cases of confiscation and spoliation. I challenge this statement, for to me it appears unanswerable that if the reasoning of the prevailing opinion be sound, then any and every law of spoliation or confiscation, if constructed upon the framework of this, and designed for an end held desirable, must be declared valid. Upon this phase of the case, therefore, the conviction is profoundly impressed upon me that this law, though clearly sanctioned by the constitution of this state, is violative of the fourteenth amendment of the constitution of the United States, and is therefore void.

Let me give a specific instance of this. Let me create a law under the sanction of the prevailing opinion. The welfare of the employee is of especial concern to the state. It is to the interest of the state that employees should be indemnified against loss occasioned by their injuries. This, of course, is indisputable. The state has performed a part of its duty to employees by providing that for injuries suffered during the hours of employment, their employers shall indemnify them. But it has not performed all of its duty nor exhausted all of its powers. So far as the state and the employee are concerned it matters not when or where the latter is injured. It is not a question of time, place, or circumstances, but of consequence. It is the consequency of injury to the employee supposedly dependent on wages against which it is just and is the duty of the state to protect him. An employee injured out of his hours of labor suffers the same consequences as though he were injured during the progress of his work, and the state sustains the same loss. So far, under the law, the state and employee are only protected during the hours of employment. It is equally desirable, since the evil consequences are the same, that they be protected during the hours of leisure. Therefore the legislature enacts that any person in the class defined as employees who in his hours of leisure is injured while on the property of another shall be indemnified by the owner of the property. If the injury occur on a public highway or sidewalk the owner of the abutting property shall be liable for such indemnification. But the owners of large business blocks in cities are unusually careful to keep the sidewalks and approaches to their buildings in good condition to attract tenants, and the tenants observe the same precautions to secure patronage. Therefore the risk of injury is much less in and about such premises and the owners of such properties are exempted from the operation of this law. The person charged with liability shall be entitled to notice and a hearing on the questions: 1 of his ownership of the property; 2 of the injury to the claimant, its nature and extent; 3 of the place of injury, whether or not it occurred on property to which the "burden has been shifted." Here, then, is a law whose purpose is laudable, whose object — the welfare of the workman — is peculiarly within the domain of the police power and of a beneficent exercise of that power. In the language of the prevailing opinion, "It is simply an exercise by the state of its governmental power to pass laws regulating the ordinary private rights of persons and property. The law in question is of this character. It does not affect past transactions or previously acquired rights of person or property. It provides for a notice and a hearing as to liabilities arising under it, and it bears alike upon all affected by its provisions."

The exemption of a class of rich property owners from liability is justified upon precisely the same grounds as those declared sufficient in the prevailing opinion to exempt the farmer and viticulturist; the property can better afford to stand the loss than the employee, so the "burden is transferred," but it is placed not on the owner but on his property. He can make himself whole by increasing his rents or insuring. The logic of the reasoning which justifies the imposition of the liability upon the employer without fault for an injury occurring during the hours of employment applies with equal force and finality to the owner of the property upon which the employee happens to be in his hours of leisure.

And, finally, there is sickness. The earning power of an employee is as much impaired by sickness as by injury. The case of sickness has not been provided for. Employees deposit in savings banks. It is to the interest of savings banks that employees should deposit as much as possible. Banks are a proper subject of regulation, as declared in the Haskell case. Therefore there should be another law providing that savings banks shall pay to every employee who is sick the amount of his wages while that sickness continues.

In these supposititious cases I have not advanced beyond the reasoning of the prevailing opinion one step. I have adopted that reasoning without amendment and applied it without alteration to other laws, and it will be vividly illuminating to have it shown upon what ground (the present law being held valid) the others could be condemned.

Other questions of narrower import but not without consequence demand consideration. They may be thus expressed: Does this law, passed under the sanction of the constitution of this state, do violence to the constitutional grant of power to which it owes its existence, or to other constitutional provisions not directly or by necessary implication repealed by this later constitutional provision?

First treating this law as drawing its validity from the constitutional grant, to my mind it is clear that the legislature has violated the powers which the constitution has conferred upon it. It is not questioned, indeed it is declared in the prevailing opinion, and it is of course true, that this constitutional amendment is a revolutionary departure from all existing concepts of the duties and obligations which may be imposed upon any class of citizens. This is so true that it is scarcely overstating it to say that the constitutional grant does violence to what may be conceived to be the natural right of all persons. There is here a special reason, therefore, for construing this constitutional enactment as it is written. As it is written, it declares that the legislature may create and enforce a liability on the part ofall employers. The legislature has seen fit to create and enforce a liability against some but not all. The tremendous change worked by the constitution in the policy and laws of the state lies in this, that what the constitution has declared is that the legislature may create a new liability, imposing it upon all employers — upon all employers, because the very purpose of the declaration was to protect and benefit all employees. It has announced a most radical change. It has overthrown the principles and precepts of the common law and of every former statutory enactment. It has done this as a matter of state wide policy. It has so declared in terms. It has authorized the legislature to give effect to its policy. What is that policy? This and this only: that hereafterall employers without recourse to the courts, shall compensateall employees who may be injured, during their hours of employment. Such a change in policy, radical as it is, is at least understandable and equitable to the extent that all in the employer class share alike a common and equal burden. Had the constitution ever designed that the legislature could exercise a discretion in the matter, manifestly it would have said so by the simple addition of the words "or any" following "all." The careful phraseology of the whole amendment establishes that it says what it means and means what it says. Regardless of the provision of the constitution that permissive words are to be considered as mandatory, and therefore regardless of the question as to whether or not the legislature must act under this provision, plain it is that if it does act under it its power of action must embrace all employers. I know of no rule of construction, and none is cited, which countenances any other conclusion. "All taxes must be uniform," does not mean that some may be uniform. "All men are equal before the law," does not mean that some are equal before the law. "All laws of a general nature shall have a uniform operation," does not mean that some only of those laws may have a uniform operation. "All persons shall be bailable by sufficient sureties," does not mean that a select few alone are bailable. "All men are by nature free and independent," does not mean that a designated few are; and so to the end of the chapter.

Again it is conceded that the constitution imposes a new and revolutionary liability. It will not be extended by implication, therefore, beyond its express terms. Those terms cast upon the employer the obligation to give his property to his employee if the latter be injured. It nowhere declares or intimates that the employer shall be liable to the heirs or legatees or dependents of the employee in case of his death. The right of action to a person injured is so totally different from the right of action to his heirs for his death, that the difference does not need exposition. The constitution has said only that the employee shall be indemnified for his injuries; the statute says that his dependents shall be compensated for his death. Adversion is made to this, not as being directly involved in the present hearing, but because, along with the exemption of the favored classes, it illustrates the construction which I think the legislature mistakenly put on this constitutional grant of power, — which creating a liability theretofore unheard of in the whole history of our jurisprudence from the remotest antiquity of the common law until to-day, demanded under every tenet and canon of construction that the power be not exercised beyond the declared limits of the grant.

But dropping out of consideration these radical constitutional defects in the law, and treating it as a law passed without reference to this constitutional grant, and bottomed on the police power, still the ineluctable result is the condemnation of the statute. I am, of course, not unmindful of the vast number of decisions, indeed they confront one from every quarter, touching the wide discretion of the legislature in matters of classification. Nor yet am I unmindful of the lengths to which the courts have gone in sustaining dubious classifications. But while it is true that if there are good grounds for the classification, a law is not void because it does not include every other class needing similar protection; nevertheless, it is equally true that if there be not good grounds for the classification, it is void unless it includes all who are entitled to its benefits, or should be placed under its liabilities. Failing this, in the one case, a citizen is deprived of a benefit conferred upon his fellows; in the other, he escapes an obligation imposed upon his fellows. It needs no demonstration as to this law to show that the classification here made is not, as in the Washington case and in the New York case, based upon the hazardous or extra hazardous nature of the employment. I think it would be trifling to attempt to argue that the hazards of the exempted occupations are not as great as, and in many instances vastly greater than, in the employments and industries coming under the protection and benefit of this law. Is the handling of modern machinery upon a farm any less dangerous than the handling of like machinery elsewhere? Is the employee engaged in plowing, harvesting, and care of his team upon a farm incurring less hazard than the same teamster or stableman in a town? Is the answering of a telephone or the selling of shoes more hazardous than the dangers attending the hired man of the farmer, the milker or driver of the dairyman, the winemaker or the viticulturist? But there is no need for more examples, when the multitude of them floods every mind at first thought. What are the consequences of this classification? The state being interested in the indemnification of employees and the creation and substitution of a new liability upon their employers, by what authority shall the legislature say that it will refuse the benefits of this law to innumerable employees as fully entitled to its benefits as are those who are included therein? Upon the one hand, if the law be a beneficial law to the employer, as is argued, why should the farmer, dairyman, viticulturist be debarred from its privileges and benefits? Upon the other hand, if the law be a detriment to the employer, why should they be exempted from its operation? If a classification such as this is to be sustained, then all the constitutional provisions against special and class legislation may be "cast as rubbish to the void."

Approving in principle this legislation, as I have said I do, condemning as unconstitutional the means adopted to effectuate it, as I have expressed the conviction must be done, the natural query arises as to what legal form such legislation may take. The answer is perhaps sufficiently indicated by what has already been said. But specifically answering, I say it may take, within reasonable bounds, the form of tolls upon industry, the fund thus raised to be devoted to the indicated purposes, as was done under the Washington law. Where this method is not sufficient nor sufficiently efficacious, then as the wisdom, the propriety, the duty of aiding the injured or disabled or crippled or dependent employee is a governmental duty and not an individual duty, it should be performed as a governmental function by a tax to which every person, as a member of the body politic, should contribute in proportion to his wealth.

The importance of these considerations must be the justification for this extended exposition of my views.

Rehearing denied.

At the time of the denial of the rehearing, on September 2, 1915, Shaw, J., filed the following opinion: