432 



LAW, CONSTITUTIONAL. (EMPLOYERS' LIABILITY.) 



the police power the conduct of an individual 

 and the use of property may be regulated so 

 as to interfere to some extent with the free- 

 dom of the one and the enjoyment of the 

 other ; and, in cases of great emergency, prop- 

 erty may be taken and destroyed without com- 

 pensation, and without what is commonly 

 called due process of law. The limit of the 

 power can not be accurately defined, and the 

 courts have not been able or willing definite- 

 ly to circumscribe it. But the power, how- 

 ever broad and extensive, is not above the 

 Constitution. When it speaks, its voice must 

 be heeded. It furnishes the supreme law, 

 and, so far as it imposes restraints, the police 

 power must be exercised in subordination 

 thereto. If this were otherwise, the power of 

 the Legislature would be practically without 

 limitation ; in the assumed exercise of the police 

 power in the interest of the health, the wel- 

 fare, or the safety of the public, every right of 

 the citizen might be invaded and every consti- 

 tutional barrier swept away. Generally it is 

 for the Legislature to determine what laws 

 and regulations are needed to protect the pub- 

 lic health and secure the public comfort and 

 safety ; and while its measures are calculated, 

 intended, convenient, and appropriate to ac- 

 complish the ends, the exercise of its discretion 

 is subject to review of the courts. If it passes 

 an act ostensibly for the public health, and 

 thereby destroys or takes away the property of 

 a citizen or interferes with his personal liberty, 

 it is for the courts to scrutinize the act and see 

 whether it really relates to and is convenient 

 and appropriate to promote public health." 



In considering the relation of the Tenement- 

 House Cigar Act to the public health, the 

 Court says that the law deals mainly with the 

 preparation of tobacco and the manufacture of 

 cigars, and its purpose obviously was to regu- 

 late them. Tobacco is used in some form by a 

 majority of the men in this State, and its manu- 

 facture into cigars is permitted without any 

 hindrance except for revenue purposes in all 

 civilized lands. The opinion then proceeds as 

 follows : 



It has never been said, so far as we can learn, and 

 it was not affirmed in the argument before us, that 

 its preparation and manufacture into cigars were 

 dangerous to the public health. We are not aware, 

 and are not able to learn, that tobacco is even in- 

 jurious to the health of those who deal in it, or 

 are engaged in its production or manufacture. We 

 certainly know enough about it to be sure that its 

 manipulation in one room can produce no harm to the 

 health of the occupants of other rooms in the same 

 house. To justify this law it would not be sufficient 

 that the use of tobacco may be injurious to some per- 

 sons, or that its manipulation may be injurious to 

 those who are engaged in its preparation, but it would 

 have to be injurious to the public health. This law 

 was not intended to protect the health of those en- 

 gaged in cigar-making, as they are allowed to manu- 

 facture cigars everywhere except in the forbidden 

 tenement-houses. It can not be perceived how the 

 cigar-maker is to be improved in his health or his 

 morals by forcing him from his home and its hal- 

 lowed associations and beneficent influences to ply his 

 trade elsewhere. It was not intended to protect the 



health of that portion of the public not residing in 

 the forbidden tenement-houses, as cigars are allowed 

 to be manufactured in private houses, in large facto- 

 ries and shops in the two crowded cities, and in all 

 other parts of the State. It was not intended to im- 

 prove or protect the health of the occupants of tene- 

 ment-houses, because the law does not apply when 

 but three families, no matter how numerous and gre- 

 garious, occupy the houses. 



It is plain that this is not a health law, and that it 

 has no relation whatever to the public health. Under 

 the guise of promoting the public health, the Legisla- 

 ture might as well have banished cigar-making from 

 all the cities of the States, or confined it to a single 

 city or town, or have placed under a similar ban the 

 trade of a baker, of a tailor, of a shoemaker, of a 

 wood-carver, or of any other of the innocent trades 

 carried on by artisans in their own homes. The power 

 would have been the same, and its exercise, so far as 

 it concerns fundamental constitutional rights, could 

 have been justified by the same arguments. Such 

 legislation may invade one class of rights to-day and 

 another to-morrow, and if it can be sanctioned under 

 the Constitution : while far removed in time, we shall 

 not be far away in practical statesmanship from those 

 ages when governmental prefects supervised the build- 

 ing of houses, the raising of cattle, the sowing of seed 

 and reaping of grain, and governmental ordinances 

 regulated the movements and labor of artisans, the 

 rate of wages, the price of food, the diet and clothing 

 of the people, and a large range of other affairs, long 

 since, in all civilized lands, regarded as outside of gov- 

 ernmental functions. When a health law is challenged 

 in the courts as unconstitutional, on the ground that 

 it arbitrarily interferes with personal liberty and pri- 

 vate property without due process of law, the courts 

 must be able to see that it has, at least in fact, some 

 relation to the public health, that the public health is 

 the end actually aimed at, and that it is appropriate 

 and adapted to that end. This we have not been able 

 to see in this law, and we must, therefore, pronounce 

 it unconstitutional and void. 



Employers' Liability. Though not on a ques- 

 tion of constitutional law, one of the most im- 

 portant opinions rendered by the United States 

 Supreme Court during the year was that an- 

 nounced December 8, touching the liability of 

 employers for death or injury caused to one 

 employe by the negligence of another. The 

 law on this point has not been uniformly set- 

 tled, either in the United States or in England. 

 But in both countries there has been a strong 

 current of judicial authorities recognizing and 

 affirming the principle that an employer, while 

 liable to a stranger, is exempt from liability to 

 his own servants for injuries caused by the 

 negligence of an employe". Thus, when any 

 passengers or persons not in the company's 

 service are killed or injured by a railroad ac- 

 cident, due to negligence on the part of the 

 road's servants, the corporation is liable in 

 damages; but, if any of its own employes are 

 killed or injured, it is not liable if the accident 

 resulted from the negligence of a fellow-serv- 

 ant. This distinction has been based on the 

 theory that every employe must be presumed 

 voluntarily to accept the ordinary risks of the 

 service that he undertakes, and that his com- 

 pensation is fixed with that end in view, while 

 no such risk, it is claimed, is assumed by a 

 passenger. It is further contended that tho 

 company's liability to passengers is created by 

 an implied contract to carry them safely, which 



