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parties to the litigation. Indictments have been simplified, and an indictment for the most serious of crimes is now the simplest of all. In several of the States grand juries, formerly the only safeguard against a malicious prosecution, have been largely abolished, and in others the rule of unanimity, so far as applied to civil cases, has given way to verdicts rendered by a three-fourths majority.” The power of the State to make such changes in methods of procedure and in substantive law is clearly recognized. (Hurtado v. California, 110 U. S. 516; Hayes v. Missouri, 120 U. S. 68; Missouri Pac. Railway Co. v. Mackey, 127 U. S. 205; Hallinger v. Davis, 146 U. S. 314; Matter of Kemmler, 136 U. S. 436; Duncan v. Missouri, 152 U. S. 377.) We repeat, however, that this power must be exercised within the constitutional limitations which prescribe the law of the land. “Due process of law” is process due according to the law of the land, and the phrase as used in the fourteenth amendment of the Federal Constitution with reference to the power of the States means the general law of the several States as fixed or guaranteed by their constitutions. As stated by Mr. Webster, in the Dartmouth College case, “the law of the land is the general law; the law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial."

If we are warranted in concluding that the new statute violates private right by taking the property of one and giving it to another without due process of law, that is really the end of this case. But the auspices under which this legislation was enacted, no less than its intrinsic importance, entitle its advocates to the fullest consideration of every argument in its support, and we, therefore, take

the discussion of the police power under which this law is sought to be justified. The police power is, of course, one of the necessary attributes of civilized government. In its most comprehensive sense it embraces the whole system by which the State seeks to preserve the public order, to prevent offenses against the law, to insure to citizens in their intercourse with each other the enjoyment of their own so far as is reasonably consistent with a like enjoyment of rights by others. Under it persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health and prosperity of the State. But it is a power which is always subject to the constitution, for in a constitutional government limitation is the abiding principle, exhibited in its highest form in the constitution as the deliberative judgment of the people, which moderates every claim of right and controls every use of power. In the language of Chief Justice Shaw, in Commonwealth v. Alger, 7 Cush. 85; “It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries or prescribe limits to its exercise.” It covers a multitude of things that are designed to protect life, limb, health, comfort, peace and property according to the maxim sic utere tuo ut alienum non lædas, but its exercise is justified only when it appears that the interests of the public generally, as distinguished from those of a particular class, require it, and when the means used are reasonably necessary for the accomplishment of the desired end, and are not unduly oppressive. (Lawton v. Steele, 152 U. S. 133, 137; Colon v. Lisk, 153 N. Y. 188, 196; Wright v. Hart, 182 N. Y. 330.) In order to sustain legislation under the police power the courts must be able to see


that its operation tends in some degree to prevent some offense or evil, or to preserve public health, morals, safety and welfare. If it discloses no such purpose, but is clearly calculated to invade the liberty and property of private citizens, it is plainly the duty of the courts to declare it invalid, for legislative assumption of the right to direct the channel into which the private energies of the citizen may flow, or legislative attempt to abridge or hamper the right of the citizen to pursue, unmolested and without unreasonable regulation, any lawful calling or avocation which he may choose, has always been condemned under our form of government. Concrete illustrations of what may and what may not be done under the police power are to be found in this very labor law of which the new statute is a part. As this statute stood before article 14-a was added, it regulated electric work, the operation of elevators, work on scaffolds, work with explosives and compressed air, the construction of tunnels and railroad work. It regulated the hours of work in certain employments; it directed the payment of wages in cash at specified periods; it provided for the protection of employees engaged in the erection of buildings; it compelled, the employer to guard dangerous and exposed machinery; to construct fire escapes and ventilating appliances; to provide toilet facilities, pure drinking water and sanitary arrangements; it prohibited the employment of women, and of children under certain ages, in specified occupations; it regulated the hours of labor of minors; it modified the fellow-servant rule, the law of contributory negligence and the assumption of risks; and, in short, it imposed upon the employer many restrictions and duties which were unknown to the common law. Broadly classified, all these and similar statutory provisions which are designed, in one way or another, to conserve the health, safety or morals of the employees, and to increase the duties and responsibilities of the employer, are rules of conduct which properly fall within the sphere of the police power. (Holden v. llardy, 169 l'. S. 366; Missouri Pac. Ry. Co. v. Mackey, 127 U. S. 205.) But the new addition to the labor law is of quite a different character. It does nothing to conserve the health, safety or morals of the employees, and it imposes upon the employer no new or aflirmative duties or responsibilities in the conduct of his business. Its sole purpose is to make him

. liable for injuries which may be sustained wholly without his fault, and solely through the fault of the employee, except where the latter fault is such as to constitute serious and willful misconduct. Under this law, the most thoughtful and careful employer, who has neglected nó duty, and whose workshop is equipped with every possible appliance that may make for the safety, health and morals of his employees, is liable in damages to any employee who happens to sustain injury through an accident which no human being can foresee or prevent, or which, if preventable at all, can only be prevented by the reasonable care of the employee himself. That this is the unmistakable theory and purpose of the act is made perfectly plain by the recital in section 215, which sets forth that from the nature, conditions or means of prosecution of the work in the employments which are classified as dangerous, "extraordinary risks to the life and limb of workmen engaged therein are inherent, necessary or substantially unavoidable, and as to each of which employments it is deemed necessary to establish a new system of compensation


for accidents to workmen.” And to make the matter still more plain, the learned counsel for the commission argues in his brief that "if it is competent for the legislature to say to the employer in a dangerous trade, ‘use the utmost care in giving your workmen safe work, so that no act of yours, or implement of yours, or work that you set them to do shall hurt them, and if you fail you shall be liable in damages,' if it is competent to make such a law, then it is equally competent to say as in this new act directly, you shall be responsible for all damages caused by unsafe condition of work,' and that is just what the liability for trade risks under the new act means.' In this argument the learned counsel ignores, or at least misses, as we think, the vital distinction between legislation which imposes upon an employer a legal duty, for the failure to perform which he may be penalized or rendered liable in damages, and legislation which makes him liable notwithstanding he has faithfully observed every duty imposed upon him by law. At pages 46 and 47 of the report of the commissioners are quoted the several pertinent provisions of our State constitution. (Art. 1, sec. 18; art. 1,

1 sec. 2; art. 1, sec. 1; art. 1, sec. 6.) With reference to these, the commissioners say: "It is obvious, on a mere reading, that the first section makes it impossible for the legislature to enact any law which will take away from the representatives of an injured workman the right of action there named for injuries causing death, nor can the legislature limit it in any way. It is equally obvious, it seems to us, that it was the intention of the second section of the constitution (Art. 1, sec. 2), to provide that in all controversies in the courts of law either side should finally have a right to a jury trial on the question of liability, and however successful or unsuccessful jury trials may be in cases of employer's liability, or in other cases, that solemn mandate of the constitution can not be set aside. The third and fourth sections of the constitution above quoted are practically those which, like the fourteenth amendment of the Federal Constitution, provide for due process of law in all legislation, that is, speaking generally, which prohibit the passage by the legislature of such legislation as shall arbitrarily deprive any of the citizens of the State of life, liberty or property.”

These are interesting and salient admissions, but the ease with which these constitutional provisions are brushed aside is startling. Continuing, the commissioners say: “But we regard it as settled that the legislature has power, if it so chooses, to change or abrogate the common law on employer's liability, or the employers' liability act, or any other statutes in regard thereto.

The legislature of this State, in the exercise of its general powers,

has in the past so legislated as to prescribe that employers in New York industries, shall conduct their business, use their machines and use their property in such ways as shall conduce to the safety of the employees and the prevention of accident and disease. Such is the whole purpose of the labor law.

We are of opinion that it is competent for the legislature to take a further step and provide conditions of the carrying on of such dangerous industries--not at the moment conditions as to the method of carrying them on--but conditions providing that any man in the State who carries on such dangerous trades shall be liable to make compensation to the employees injured either by the fault of the employer, or by those unavoidable



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risks of the employment. The effect of such a statute would be to reverse the common-law doctrine that the employee assumes the risk of his employment."

With all due respect to the members of the commission we beg to observe that the statute enacted in conformity with their recommendations, does not stop at reversing the common law; it attempts to reverse the very provisions of the constitution which, the commissioners admit, are obviously beyond the reach of the legislature. We can not understand by what power the legislature can take away from the employer a constitutional guaranty of which the employee may not also be deprived. If it is beyond the power of the legislature to take from the representatives of deceased employees their rights of action under the constitution, by what measure of power or justice may the legislature assume to take from the employer the right to have his liability determined in an action at law? Conceding, as we do, that it is within the range of proper legislative action to give a workman two remedies for a wrong, when he had but one before, we ask, by what stretch of the police power is the legislature authorized to give a remedy for no wrong? If, before the passage of this law, the employer had a right to a jury trial upon the question of liability, where and how did he lose it? Can it be taken from him by the mere assertion that this statute only reverses the common-law doctrine that the employee assumes the risk of his employment? It would be quite as logical and effective to argue that this legislation only reverses the laws of nature, for in everything within the sphere of human activity the risks which are inherent and unavoidable must fall upon those who are exposed to them. We must admit that what the legislature may prohibit it may absolutely control. Where the right to exist, as in case of corporations, depends upon the will of the legislature, that right may be granted subject to prescribed conditions. In such a case an employer may be made an insurer of the safety of his employees as a condition of the permission to engage in business. But when an industry or calling is per se lawful and open to all, and, therefore, beyond the prohibitive power of the legislature, the right of governmental control is subject to such reasonable enactments as are directly designed to conserve health, safety, comfort, morals, peace and order. (Lochner v. New York, 198 U.S. 45.) For the failure of an employer to observe such regulations the legislature may unquestionably enact direct penalties or create presumptions of fault which, if not rebutted by proof, may be regarded as sufficient evidence of liability for damages. That must be the extreme limit of the police power, for just beyond is the constitution which, in substance and effect, forbids that a citizen shall be penalized or subjected to liability unless he has violated some law or has been guilty of some fault.

The limitations of the police power are illustrated in a great variety of cases. In Matter of Jacobs, 98 N. Y. 98, 99, it was held that an act was void which made it a misdemeanor to manufacture cigars or prepare tobacco in certain tenements. In People v. Marx, 99 N. Y. 377, this court condemned an act absolutely prohibiting the manufacture or sale of oleomargarine, upon the ground that it interfered with a lawful industry, not injurious to the public and not fraudulently conducted, although in a later case (People v. Arensberg, 105 N. Y. 123) another statute relating to the same subject was upheld because it was directly aimed at a designed and intentional imitation of dairy butter. In People v. Gillson, 109 N. Y. 389, 404, it was held that a statute was not within the police power which prohibited the sale or disposal of any article of food upon any representation or inducement that anything else will be delivered as a gift, prize, premium or reward to the purchaser. The ground of the decision was that it was not a health law; that it was not designed to prevent the adulteration of food, and that it was not in the power of the legislature to convert an innocent act into a crime. In Colon v. Lisk, 153 N. Y. 188, the statute under consideration provided for the summary seizure of any boat or vessel, used by one person in interfering with the oysters or shellfish of another, and for its forfeiture and sale. It was held that the statute sanctioned an unauthorized confiscation of private property for the mere protection of private rights and was not within the police power of the State. In People v. Hawkins, 157 N. Y. 1, this court decided that a statute was void which made it a misdemeanor to sell or expose for sale any goods made in a penal institution unless they were labeled “convict made.” In People v. Orange County Road Con. Co., 175 N. Y. 84, it was held that the State can not dictate to independent contractors on State work the hours of labor which they shall prescribe for their employees, where there was nothing in the character of the work or in the provisions of the contract to justify legislative interference. In Beardsley v. N. Y., L. E.

, & W. R. R. Co., 162 N. Y. 230, what is known as the “mileage book act,” which required railroad companies to issue mileage books and provided a penalty for refusal, was unconstitutional as to railroad corporations in existence at the time of its enactment, because it was an illegal invasion of the vested property rights of such corporations. In Schnaier v. Navarre Hotel & I. Co., 182 N. Y. 88, the court pronounced invalid a statute which provided that it should be unlawful for a copartnership to engage in the business of employing or master plumber unless each and every member thereof shall have registered, after examination and certification by an examining board of plumbers. In People v. Marcus, 185 N. Y. 257, it was held that a section of the penal code was void which provided, in substance, that no person shall make the employment of another, or the continuance of such employment, conditional upon the employee's not joining or becoming a member of a labor organization. In People v. Williams, 189 N. Y. 131, 134, this court condemned that part of the labor law which prohibited the employment of an adult female in a factory before 6 o'clock in the morning or after 9 o'clock in the evening, and held that it was not a proper exercise of the police power, since it had no reference to the number of hours of labor or to the healthfulness of the employment.

We have yet to consider certain special cases upon which the exponents of this new law have planted their faith and hope, and these run along such divergent lines as to indicate, more clearly than anything else, the absence of any sound legal theory upon which this legislation can be sustained. "These cases are cited in support of the contention that the common law and our statutes furnish many illustrations of legal liability without fault, but we shall endeavor by analysis to show how inapplicable they are to the questions now before the court. The case of Marvin v. Trout, 199 U. S. 212, arose under an Ohio statute which subjected premises used for gambling to a lien for money lost in gambling. The statute forbade gambling, and the

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