man or his dependents out of the accident | 9, 15 and 16, of the act, each party shall fund. If, however, the injury or death re be entitled to a trial by jury on demand. sults to a workman from the deliberate intention of his employer, such workman, or, in case of his death, a widow, widower, child, or dependent of the workman, shall have the privilege to take under the act, and shall also have a cause of action against the employer, as if the act had not been enacted, for any excess of damage over the amount received, if receivable under the act. A minor working at an age legally permitted under the laws of the state shall be deemed sui juris for the purposes of the act, and no other person shall have any cause of action or right to compensation for his injury.

through personal injuries, and its purpose | ed hazardous a certain fixed sum based upis to furnish a remedy that will reach every injury sustained by a workman engaged in any of such industries, and make a sure and certain award therefor, bearing a just proportion to the loss sustained, regardless of the manner in which the injury was received. With the economic questions thus suggested, the auditor's learned counsel object only to the wisdom of the scheme formulated. They concede that the evil is one calling for a remedy, and direct their arguments solely against this particular act. In our discussion we shall confine ourselves to the questions thus suggested, noticing the economic questions only incidentally.

The act is challenged as unconstitutional on four distinct grounds: (1) That it violates section 3 of article 1 of the state Constitution, and the fourteenth amendment to the Constitution of the United States, which provide that no person shall be deprived of life, liberty, or property without due process of law; (2) that it violates section 12 of article 1 of the state Constitution, which provides that no law shall be passed granting to any citizen, class of citizens, or corporations, other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations; and the fourteenth amendment to the Constitution of the United States, which provides for the equal protection of the laws; (3) that it violates sections 1 and 2 of article 7 of the state Constitution, which provide that property shall be taxed according to its value in money and that all taxation shall be equal and uniform; and (4) that it violates section 21 of article 1 of the state Constitution, which provides that the right of trial by jury shall remain inviolate. But, while we shall discuss the questions suggested under the several divisions as here set out, it is obvious that no very logical segregation of the argument can be thus made, as many of the reasons advanced for or against the act under one particular division are equally applicable to one or more of the others. Any different arrangement, however, seems to be at the sacrifice of clearness, and we pass therefore directly to the first objection stated.

on his pay roll, which is to be used to compensate employés working in such hazardous employments who receive personal injuries, regardless of the question whether the injury was because of the fault of the employer or of the negligence of the employé, it can be said that some part of the sum so collected will be paid out on injuries in which the employer is without fault; and. furthermore, since every such employer is liable to make the payments whether or not any of his own workmen are injured, and since an employer is liable under the common law for an injury to his own workmen only, it can also be said that by this act one employer is held liable for the obligations of another.

[2] But these conditions do not furnish an absolute test of the validity of the act. In the statute books of the several states are many statutes held constitutional by the courts where liability is created without fault, and where the property of one person is taken to pay the obligations of another, and this where no compensation is made to the person who is thus made liable or whose property is thus taken, other than perhaps the bestowal upon him of some privilege. The test of the validity of such a law is not found in the inquiry: Does it do the objectionable things? But is found rather in the inquiry: Is there no reasonable ground to believe that the public safety, health, or general welfare is promoted thereby? The Legislature cannot, of course, without violating this clause of the Constitution, declare a par ticular industry, commonly engaged in by the people, to be unlawful which, under all circumstances, must necessarily be harmless and innocent; but it can regulate and control and prohibit any industry, however innocent it may have been in its inception, whenever it becomes a menace to the employés engaged in it, the people surrounding it, or to any considerable number of the people at large. no matter from whatsoever cause the menace may arise. This it does under the police power-"the power inherent in every sovereignty, * the power to govern men and things." It is unnecessary to discuss the origin, nature, or extent of this power. It is with regret that we are unable to set It is sufficient to say that, by means of it, forth at length counsel's argument on this the Legislature exercises a supervision over branch of the case, as any abbreviation of matters affecting the common weal and enit is at the expense of its cogency and force. forces the observance by each individual To do so, however, would unduly lengthen member of society of duties which he owes this opinion. The argument is based on two to others and the community at large. The fundamental ideas: The one, that the act possession and enjoyment of all rights are creates a liability without fault; and, the subject to this power. Under it the state other, that it takes the property of one em- may "prescribe regulations promoting the ployer to pay the obligations of another. It health, peace, morals, education, and good must be conceded that these contentions order of the people, and to legislate so as have a basis in fact, and that they, on first to increase the industries of the state, deimpression, constitute a persuasive argument velop its resources, and add to its welagainst the validity of the act. Since there fare and prosperity." In fine, when reduced is exacted from every employer of labor en- to its ultimate and final analysis, the police gaged in one or more of the industries term-power is the power to govern. It is not

*

Fire De

Mathews, 165 U. S. 1, 17 Sup. Ct. 243, 41 L. | panies was upheld in Wisconsin.
Ed. 611; Atchison, T. & S. F. R. Co. v. Mat- partment v. Helfenstein, 16 Wis. 136.
thews, 174 U. S. 96, 19 Sup. Ct. 609, 43 L.
Ed. 909. Other statutes are those providing
that any landlord who knowingly leases his
premises for saloon purposes shall be liable
for losses resulting from intoxication caused
by the sale of liquor by his lessee. Such a
statute was formerly in force in this state,
and was given effect by this court. Delfel v.
Hanson, 2 Wash. 194, 26 Pac. 220; Burkman
v. Jamieson, 25 Wash. 606, 66 Pac. 48. And
in Bertholf v. O'Reilly, 74 N. Y. 509, 30 Am.
Rep. 323, the constitutionality of a like stat-
ute was maintained in an opinion by Judge
Andrews renowned for its ability and learn-
ing. In the course of his opinion, the learn-
ed judge noted the fact that the liability of
the landlord could not be sustained on the
theory that such liability was a condition
of a privilege granted by the statute, but
rested the decision on the principle that the
state, under its police power, could impose
upon the landlord liability for the acts of
his tenants. In the course of the opinion
this language was used: "And the act of
1873 is not invalid because it creates a right
of action and imposes a liability not known
to the common law. There is no such limit
to legislative power. The Legislature may
alter or repeal the common law. It may
create new offenses, enlarge the scope of
civil remedies, and fasten responsibility for
injuries upon persons against whom the com-
mon law gives no remedy. We do not mean
that the Legislature may impose upon one
man liability for an injury suffered by an-
other, with which he had no connection. But
it may change the rule of the common law,
which looks only to the proximate cause of
the mischief, in attaching legal responsibil-
ity, and allow a recovery to be had against
those whose acts contributed, although re-
motely, to produce it.
* The liability
imposed upon the landlord for the acts of the
tenant is not a new principle in legislation.
His liability only arises when he has con-
sented that the premises may be used as a
place for the sale of liquors. He selects the
tenant, and he may, without violating any
constitutional provision, be made responsible
for the tenant's acts connected with the use
of the leased property."

The statute of Nebraska makes a railroad company liable in damages for injuries sustained by a passenger regardless of the question of negligence on the part of the company, except where the injury is caused by the passenger's criminal negligence, or by his violation of some express rule of the company, actually brought to his attention. This statute was upheld against a challenge on the ground that it violated the due process of law clauses of the state and federal Constitutions, by the state court, in Chicago, R. I. & P. R. Co. v. Zernecke, 59 Neb. 689, 82 N. W. 26, 55 L. R. A. 610, and by the Supreme Court of the United States in Chicago, R. I., etc., Ry. Co. v. Zernecke, 183 U. S. 582, 22 Sup. Ct. 229, 46 L. Ed. 339. The Supreme Court of the United States, vindicating the statute against the attack made upon it, used the following language: "In Omaha & R. V. R. Co. v. Chollette, 33 Neb. 143 [49 N. W. 1114], the words of the statute exempting railroad companies from liability, 'where the injury done arose from the criminal negligence of the persons injured,' were defined to mean 'gross negligence,' 'such negligence as would amount to a flagrant and reckless disregard' by the passenger of his own safety, and 'amount to a willful indifference to the injury liable to follow.' This definition was approved in subsequent cases. It was also approved in the case at bar, and the plaintiff in error, it was in effect declared, was precluded from any defense but that of negligence as defined, or that the injury resulted from the violation of some rule of the company by the passenger brought to his actual notice, and the company, as we have said, was not permitted to introduce evidence that the derailment of its train was caused by the felonious act of a third person. The statute, thus interpreted and enforced, it is asserted, impairs the constitutional rights of plaintiff in error. The specific contention is that the company is deprived of its defense, and not only declared guilty of negligence and wrongdoing without a hearing, but adjudged to suffer without wrongdoing, indeed even for the crimes of others, which the company could not have foreseen or have prevented. Thus described, the statute seems Statutes imposing a liability upon fire in- objectionable. Regarded as extending the surance agents, based upon the amount of rule of liability for injury to persons which the insurance effected by them, for the bene- the common law makes for the loss of or infit of a fund to care for and cure sick and in- jury to things, the statute seems defensible. jured firemen, have been upheld in the states And it was upon this ground that the Suof New York and Illinois. Fire Department preme Court of the state defended and vinv. Noble, 3 E. D. Smith (N. Y.) 440; Fire De- dicated the statute. The court said: The partment v. Wright, 3 E. D. Smith (N. Y.) legislation is justifiable under the police pow453; Exempt Fireman's Fund v. Roome, 29 er of the state, so it has been held. It was Hun (N. Y.) 391, 394; Firemen's Benevolent enacted to make railroad companies insurers Ass'n v. Lounsbury, 21 Ill. 511, 74 Am. Dec. of the safe transportation of their passengers 115. Clearly these are statutes creating lia- as they were of baggage and freight; and no bility without fault. A similar statute re- good reason is suggested why a railroad comlating to agents of foreign fire insurance company should be released from liability for in

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. Clark v. Nash, 198 U. S. 361 [25 Sup. Ct. 676, 49 L. Ed. 1085]; Strickley v. Highland Boy Mining Co., 200 U. S. 527, 531 [26 Sup. Ct. 301, 50 L. Ed. 581]; Offield v. New York, New Haven & Hartford R. R. Co., 203 U. S. 372 [27 Sup. Ct. 72, 51 L. Ed. 231]; Bacon v. Walker, 204 U. S. 311, 315 [27 Sup. Ct. 289, 51 L. Ed. 499]. And, in the next, it would seem that there may be other cases beside the everyday 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 Oil Co. v. Indiana, 177 U. S. 190 [20 Sup. Ct. 576, 44 L. Ed. 729]. At least, if we have a case within the reasonable exercise of the police power as above explained, no more need be said."

Juries received by a passenger while being powerful considerations on the other side. transported over its line, while the corporation must respond for any damages to his baggage or freight.' Our jurisprudence affords examples of legal liability without fault, and the deprivation of property without fault being attributable to its owner. The law of deodands was such an example. The personification of the ship in admiralty law is another. Other examples are afforded in the liability of the husband for the torts of the wife the liability of a master for the acts of his servants. In Missouri Rail way Co. v. Mackey, 127 U. S. 205 [8 Sup. Ct. 1161, 32 L. Ed. 107], a statute of Kansas abrogating the common-law rule exempting a master from liability to a servant for the negligence of a fellow servant was sustained against the contention that such statute violated the fourteenth amendment of the Constitution of the United States. And in Minneapolis, etc., Railway Co. v. Herrick, 127 U. S. 210 [8 Sup. Ct. 1176, 32 L. Ed. 109], a statute of Iowa which extended liability for the 'willful wrongs, whether of commission or omission,' of the 'agents, engineers or other employés' of railroad companies, was vindicated against the double attack of being an unjust discrimination against railroad corporations and the deprivation of property without due process of law."

Illustrations of the nature and all-pervading extent of the police power are shown somewhat in the cases already cited. Other illustrations abound almost without number in the decisions of the state and federal courts. It will be sufficient for our purposes, however, to call attention to a few of those The latest illustration of such a statute is which most clearly, as we believe, illustrate found in the Oklahoma Depositors' Guaranty the doctrine. In Lawton v. Steele, 152 U. S. law, which authorizes the assessment and 133, 14 Sup. Ct. 499, 38 L. Ed. 385, the court collection of a certain per centum on the daily used this language: "The extent and limits average deposit of each and every bank or- of what is known as the police power have ganized under the laws of the state as a been a fruitful subject of discussion in the fund to pay the losses caused depositors by appellate courts of nearly every state in failing and insolvent banks. This act was the Union. It is universally conceded to inchallenged in the state court on the ground clude everything essential to the public safethat it violated the fourteenth amendment ty, health, and morals, and to justify the deto the Constitution of the United States, and struction or abatement, by summary prothe due process of law clause of the state ceedings, of whatever may be regarded as a Constitution, but was upheld by the state public nuisance. Under this power it has court, and on writ of error to the Supreme been held that the state may order the deCourt of the United States the judgment of struction of a house falling to decay or oththe state court was affirmed. Noble State erwise endangering the lives of passers-by; Bank v. Haskell, 22 Okl. 48, 97 Pac. 590; the demolition of such as are in the path of Noble State Bank v. Haskell, 219 U. S. 104, a conflagration; the slaughter of diseased 31 Sup. Ct. 186, 55 L. Ed. 112, 32 L. R. A. cattle; the destruction of decayed or unwhole(N. S.) 1062. Answering the objection that some food; the prohibition of wooden buildthe act takes private property for a private ings in cities; the regulation of railways use, and creates a liability without fault, and other means of public conveyance, and of the Supreme Court of the United States said: interments in burial grounds; the restriction "The substance of the plaintiff's argument of objectionable trades to certain localities; is that the assessment takes private property the compulsory vaccination of children; the for private use without compensation. And confinement of the insane or those afflicted while we should assume that the plaintiff with contagious diseases; the restraint of would retain a reversionary interest in its vagrants, beggars, and habitual drunkards; contribution to the fund so as to be entitled the suppression of obscene publications and to a return of what remained of it if the houses of ill fame; and the prohibition of purpose were given up (see Receiver of Dan- gambling houses and places where intoxicat by Rank v. State Treasurer, 39 Vt. 92, 98), ing liquors are sold. Beyond this, however, still there is no denying that by this law a the state may interfere wherever the pubportion of its property might be taken with- lic interests demand it, and in this particuout return to pay debts of a failing rival in lar a large discretion is necessarily vested in business. Nevertheless, notwithstanding the the Legislature to determine, not only what logical form of the objection, there are more the interests of the public require, but what