DECISIONS OF COURTS AFFECTING LABOR.

[This subject, begun in Bulletin No. 2, has been continued in successive issues. All material parts of the decisions are reproduced in the words of the courts, indicated when short by quotation marks, and when long by being printed solid. In order to save space, matter needed simply by way of explanation is given in the words of the editorial reviser.]

DECISIONS UNDER STATUTORY LAW.

CONSTITUTIONALITY AND CONSTRUCTION OF STATUTE-EMPLOYERS' LIABILITY RAILROAD COMPANIES-Indianapolis Union Railway Co. v. Houlihan, Supreme Court of Indiana, 60 Northeastern Reporter, page 943.-In this case, which was a suit for damages for injuries, brought by an employee against his employer, a judgment was rendered in favor of the employee as plaintiff in the circuit court of Boone County, Ind., and the defendant employer, the above-named railway company, appealed the case to the supreme court of the State, which rendered its decision June 6, 1901, and reversed the decision of the lower court. The negligence alleged to be the cause of the accident which caused the plaintiff's injuries was that of a locomotive engineer, and the further facts in the case are not material for an understanding of the points of the decision which are to be considered below. It was admitted that under the facts in the case the railroad company would not have been liable for the plaintiff's injuries under the common law, but the claim was based upon the provisions of the employers' liability act (Burns's Revised Statutes, 1894, sections 70837087; Homer's Revised Statutes, 1897, sections 5206s-5206v). The constitutionality of this act, as well as the construction placed upon it by the plaintiff, was called in question by the defendant, but upon these points the supreme court decided in favor of the plaintiff's contention, as is shown by that part of its opinion, which was delivered by Judge Baker, quoted below. The reversal of the judgment rendered by the lower court in favor of the plaintiff was based upon a point which will not be considered here. The following is quoted from the opinion of the supreme court:

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The sufficiency of the complaint will be determined alone from the employers' liability act. The first section of the act provides: "That every railroad corporation shall be liable for damages for personal injury suffered by an employee while in its serv ice, the employee so injured being in the exercise of due care and

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diligence, in the following cases: Fourth. Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any signal, telegraph office, switch yard, shop, roundhouse, locomotive engine or train upon a railway, or where such injury was caused by the negligence of any person, coemployee or fellow-servant engaged in the same common service in any of the several departments of the service of any such corporation, the said person, coemployee or fellow-servant at the time acting in the place and performing the duty of the corporation in that behalf, and the person so injured obeying or conforming to the order of some superior at the time of such injury having authority to direct."

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The amended complaint does not aver that appellee was "obeying or conforming to the order of some superior at the time of such injury having authority to direct," and appellant claims that this omission leaves the pleading fatally deficient. The fourth subdivision of the first section of the act [quoted above] is divisible into two parts. A railroad company is liable for damages for personal injury suffered by an employee while in its service (that is, while acting within the scope of his employment), the employee being free from contributory negligence, (1) where such injury was caused by the negligence of any person in the service of such corporation (that is, acting within the scope of his employment) who has charge of any motive engine or train upon a railway;" or (2) "where such injury was caused by the negligence of any person, coemployee or fellowthe said person, coemployee or fellow-servant at the time acting in the place and performing the duty of the corporation in that behalf, and the person so injured obeying or conforming to the order of some superior at the time of such injury having authority to direct." From the words used, and the structure and scope of the act, we are of opinion that the concluding clauses of the fourth subdivision [those in italics above] limit and qualify only the liability expressed in the second part of the fourth subdivision [when the injury was caused by the negligence of any person, coemployee or fellow-servant, etc.], and that railroad companies are answerable for the negligence of their servants in charge of signals, telegraph offices, switch yards, shops, roundhouses, locomotive engines, and trains upon their railways, to their employees the same as to strangers.

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Appellant contends, however, that the construction which limits the operation of the qualifying clauses in the second part of the fourth subdivision, and which holds railroad companies liable to their employees, the same as to strangers, for the negligence of their servants in charge of signals, and so forth, brings the first part of the fourth subdivision into conflict with the equality clauses of the Federal and State constitutions. The argument, briefly, is this: At common law every employer is protected by the doctrine that every employee assumes, as an incident of his employment, the risk arising from the negligence of his fellow-servants. There is no justification of the withdrawal of railroad companies from the general class of employers, except the exercise of the police power for the protection of employees. The only reasonable basis for a classification in the exercise of the police power is the protection of employees who are subject to unusual dangers. A classification that selects for protection only those employees who are subject to unusual dangers by reason of acting in obedi

ence to the orders of some superior having authority to direct is constitutional; but a classification that selects for protection all employees, without regard to the dangers naturally incident to their work, and whether they act on their own initiation, or in obedience to the order of some superior who had authority to direct (as the attorney of a railroad company and its down-town ticket seller, for example), is a classification in name only, is arbitrary, has no relation to the object to be accomplished, discriminates against railroad companies by subjecting them to liability for injuries to a class of employees with respect to whom employers in other businesses are not made liable by the act, and is therefore unconstitutional.

Our answer is: It is competent for the legislature, in the exercise of the police power, to take steps for the protection of the lives and limbs of all persons who may be exposed to dangerous agencies in the hands of others. The powerful forces in railroading that are under the direction and control of those in charge of "any signal, telegraph oflice, switch yard, shop, roundhouse, locomotive engine or train upon a railway" were proper to be selected as sources of unusual danger which should be guarded against. The object to be accomplished was to incite railroad companies to use the utmost diligence in the selection and supervision of their servants who are put in charge of these dangerous agencies, so that fewer lives and limbs of those who are entitled to claim the protection of our laws would be sacrificed. The legislature evidently considered that strangers and employees (the attorney and the ticket seller, for example) who were not fellow-servants of those in charge of the agencies named were sufficiently protected by the railroad companies' existing liability to them for the negligent operation of these dangerous agencies. The legisla ture evidently determined to protect all persons who were not already protected from the negligent use of particular instruments. The classification is made on the basis of the peculiar hazards in railroading, relates directly to the object to be accomplished, and applies equally to all employers within the class.

To separate railroading from other businesses was not an unconstitutional discrimination, because the dangers (the basis of the classification) do not arise from the same sources; but the claim that a classification not made on the basis of the dangerous agencies employed in the business, but founded on the question whether the employee who was injured without his fault by a fellow-servant's negligent use of a dangerous agency was acting at the time on his own initiative in the line of his duty, or under the orders of a superior, is the only constitutional classification, is unwarranted. A train is wrecked through the negligence of the engineer. Two brakemen are injured without fault on their part; one acting at the time in obedience to the conductor's orders; the other acting on his own initiative, within the line of his duty. There should be and there is no constitutional limitation upon the legislature's exercise of the police power by which a law may not be enacted to protect both brakemen equally from the negligence of the engineer. We hold, therefore, that the act is not obnoxious to the objections urged by appellant.

CONSTITUTIONALITY OF STATUTE-FELLOW-SERVANT ACT-APPLICABILITY OF STATUTE-RECEIVERS OF RAILROADS--Powell v. Sherwood, Supreme Court of Missouri, 63 Southwestern Reporter, page 485.-Action was brought by Eugenie Powell against Adiel Sherwood, receiver of the St. Louis, Kansas City and Colorado Railroad, to recover damages for the death of her husband, who was killed while in the employ of the defendant and while acting as a brakeman on the above-named railroad. A judgment was rendered in the circuit court of Franklin County, Mo., in favor of the plaintiff. The decision was made upon the theory that the act of the legislature of Missouri, approved February 9, 1897 (p. 96, Acts of Missouri of 1897), defining the liabilities of railroad corporations in relation to damages sustained by their employees, and defining who are and who are not fellow-servants, was controlling in the case. The defendant appealed the case to the supreme court of the State, claiming (1) that the act did not apply to railroad companies which were in the hands of receivers, and (2) that even if it did so apply it was unconstitutional and void. The case was heard in Division No. 1 of the supreme court, and a decision was rendered sustaining the judgment of the lower court, holding that the act was constitutional and did apply in a case where a railroad was in the hands of a receiver.

The opinion was rendered by Judge Valliant and was adopted as the opinion of the court in banc. The following language is contained therein:

It is contended in behalf of appellant that the record proper in this case shows that the accident which resulted in the death of the plaintiff's husband was caused by the negligence of a fellow-servant, and that, therefore, the defendant is not liable because-first, the act entitled "An act to define the liabilities of railroad corporations in relation to damages sustained by their employees, and to define who are fellow-servants and who are not fellow-servants, and to prohibit contracts limiting liability under this act," approved February 9, 1897 (Laws 1897, p. 96), does not apply to a receiver in charge of a railroad; and, second, that the act is unconstitutional.

If we should hold that our statute applies to servants engaged in operating railway trains in the control of railway corporations, but that it does not apply to servants engaged in operating trains of a railway corporation in the control of a receiver, we should thereby give to the statute that character of inequality before the law and invidious classification which appellant contends renders it 'repugnant to the constitution of this State and that of the United States. It is one of the canons of construction that, if the statute is susceptible of two constructions, the one rendering it in harmony, and the other in discord, with the constitution, we must give it that construction which will preserve its validity. Section 2666, Revised Statutes 1889, is: "The term 'railroad corporation,' contained in this chapter, shall be deemed and taken to mean all corporations, companies or individuals owning or operating, or which may hereafter own or operate, any

railroad in this State." Appellant argues that that statute does not apply here, because it purports to define the term "railroad corporation" contained in that chapter; but the two statutes are pari materia, and, as that just quoted was in the Revised Statutes when the act of 1897 was enacted, they should be construed together. In Railway Co. v. Cox, 145 U. S. loc. cit. 601; 12 Sup. Ct., 907; 36 L. Ed., 832, the United States Supreme Court said: "In respect of liability such as is set up here, the receiver stands in the place of the corporation." In other words, the receivership is pro hac vice the corporation itself under the management of one man, instead of that of a board of directors. To hold, therefore, that the statute applies to corporations of a certain kind under one management, and not to corporations of the same kind under another management, would be to create the inequality before the law to which we have above referred.

The next insistence is that the act of 1897 violates sections 4, 10, and 30 of article 2, and section 53 of article 4, of the constitution of this State, and the fifth and fourteenth amendments to the Constitution of the United States. The objections to the act in the light of our State constitution are of the same character as those urged against it in view of the Federal Constitution, except that it is claimed also to be a special law, prohibited by section 53, article 4, of the State constitution, and the reason given for calling it a special law is the same that is given for calling it an infringement of the Federal Constitution, that it is class legislation, creating inequality before the law; so that the objection that the act singles out railroad companies, and imposes on them a burden not imposed on other employers, is the sum of all the objections. This court has gone over this ground often in considering objections like these to similar statutes, and has always arrived at the same conclusion. In Humes v. Railway Co., 82 Mo. 221, the constitutionality of section 43, c. 37, p. 310, Wag. St., which imposed on railroad corporations liability for double damages for killing or injur ing horses, cattle, etc., was challenged on the ground, among others, that it was in violation of section 53, article 4, of the constitution. In that case the court, per Phillips, C., said: "It is further alleged against this statute that it is partial and special, because it is directed against railroads alone, while no other common carriers are brought within its operations. Had the legislature deemed it essential to the protection of human life and private property, they would doubtless have extended the statute to carriers by coach and water; but as the class of property and human life protected by this provision of the statute is not exposed to a like peril incident to coach and water travel, the occasion and necessity for so extending the statute does not exist. Class legislation is not necessarily obnoxious to the constitution. It is a settled construction of similar constitutional provisions that a legislative act which applies to and embraces all persons who are or who may come into like situations and circumstances' is not partial. There is nothing that can be said against the act of 1897 which could not have been said, or was not said, against the double-damage statute above mentioned, and which is not fully answered in the cases above referred to. We see nothing in the act of 1897 in conflict with the constitution of this State."

As to the contention that the act is in violation of the Constitution of the United States, we will only refer to decisions of the Supreme Court of the United States on that subject. The case of Humes e.