escape of fire, and to define the extent of the liability for fires resulting from the operation of trains by means of steam locomotives. This is a matter within state control." (Hartford Ins. Co. v. Chi., Mil. & St. Paul Ry. Co., 62 Fed. Rep. 904.) A legislature may, if it chooses, make it a condition of the right to run carriages propelled by the agency of fire, that the corporation employing them shall be responsible for all injuries which fire may cause. (Ingersoll & Quigley v. Stockbridge & Pittsfield R. R. Co., 8 Allen, 438; Grand Trunk Ry. Co. v. Richardson, 9 U. S. 454.) And, finally, these statutes are designed to protect the rights of those who have no contractual relations to the corporations which inflict the injury. In such a case, when both parties are equally faultless, the legislature may properly consider it to be just that the duty of insuring private property against loss or injury caused by the use of the dangerous instruments should rest upon the railroad company, which employs the instruments and creates the peril for its own profit, rather than upon the owner of the property who has no control over or interest in these instruments. Quite aside from the considerations which support such a statutory liability against railroad corporations, it may be added that it is in no sense an extension of the rule of the common law to modern conditions, but in reality a return to the original common-law doctrine under which every person who permitted fire started by him to escape beyond his house or close was liable to every one who suffered loss or injury thereby. The severity of that early English rule was moderated by numerous statutes, among which are 6 Anne and 14 Geo. III. As to these two last-mentioned statutes it has been held that they became by adoption a part of the common law of this state (Thompson's Negligence, vol. 1, p. 148 et seq., notes under "Liability for Damages by Fire," and Webb v. R., W. & O. R. R. Co., 49 N. Y. 420, 426), under which neither individuals nor corporations are liable for escaping fire unless there is negligence. (Clark v. Foot, 8 Johns. 421; Bennett V. Scutt, 18 Barb. 347, 349; Stuart v. Hawley, 22 Barb. 619, 621; Radcliff's Exrs. v. Mayor, etc., of Brooklyn, 4 N. Y. 195, 200; Calkins v. Barger, 44 Barb. 424; Sheldon v. Hudson R. R. R. Co., 14 N. Y. 219; Steinweg v. Erie Ry., 43 N. Y. 123, 127.) The cited cases arising out of injuries inflicted by animals of known dangerous or vicious propensities, and the liability which has often been imposed for the maintenance of private nuisances, we shall not discuss, for we think they are governed by well-settled principles which clearly have no application to the questions now before us.

In the addenda to the instructive brief of the counsel for the commission our attention is called to three decisions of the Federal Supreme Court which have been but recently decided and not yet officially reported. (Noble State Bank v. Haskell, 219 U. S. 104; Assaria State Bank v. Dolley, 219 U. S. 121, and Engel v. O'Malley, 219 U. S. 128.) These cases, it is contended, strongly support the validity of the legislation which we are condemning because, as counsel asserts, they go directly to the ultimate question: "Is the act an unreasonable regulation of the status of employment?" We have tried to make it clear that in our judgment this statute is not a law of regulation. It contains not a single provision which can be said to make for the safety, health or morals of the employees therein specified, nor to impose upon the enumerated employers any duty or obligation designed to have that effect. It does not affect the status of employment at all, but writes into the contract between the employer and employee, without the consent of the former,

a liability on his part which never existed before and to which he is permitted to interpose practically no defense, for he can only escape liability when the employee is injured through his own willful misconduct. That is a defense which needs no legislative sanction, since it would be abhorrent to the most primitive notions of justice to permit one to impose liability for his willfully self-inflicted injuries upon another who is wholly free from responsibility for them. The case of Engel v. O'Malley (supra) is so clearly distinguishable from the case at bar that we need only state the facts to mark the contrast. The Engel case arose under a New York statute which provides that individuals and firms shall not engage in the business of receiving deposits for safe keeping or for transmission, or for any other purpose, or in the business of banking, without first obtaining from the state comptroller a license. The same statute further provides that applicants for such a license must pay a prescribed fee, give bonds and submit to other restrictions. We have already passed upon the constitutionality of certain parts of that statute, (L. 1907, ch. 185) in Musco v. United Surety Co. (196 N. Y. 459), which was an action upon a bond given under it, and have held that "the regulation of the business of receiving deposits is plainly within the power possessed by the state to regulate the conduct of various pursuits when necessary for the protection of the public." (p. 465) The portion of the statute under consideration in the last cited case was plainly directed against an obvious evil which vitally affected the public walfare. The city of New York is the gateway through which this country admits each year thousands of poor and ignorant immigrants who deal with individuals and firms engaged in the business of exchanging domestic for foreign money, receiving deposits and transmitting remittances to foreign ports. It is a business which may, and probably does, attract some irresponsible and mercenary adventurers. A law designed to regulate and safeguard such a business in a way which affects no constitutional property rights, is plainly within the police power of the state. That is all that was involved in the Musco case, and that is the extent to which this court has passed upon the constitutionality of the New York statute (L. 1907, ch. 185). It need hardly be argued that a law passed under the guise of such a purpose, but having in fact no relation to it, and accomplishing nothing to make the business of receiving deposits more safe, would be as far beyond the sphere of the police power as an amendment to the Banking Law requiring banks and bankers to protect their customers, to whom they pay moneys, against thefts or other physical losses thereof; or an amendment to the Labor Law which would compel the industrial employers to give each employee a vacation on full pay during two months of every year.

As to the cases of Noble State Bank v. Haskell (219 U. S. 104) and Assaria State Bank v. Dolley (219 U. S. 121) we have only to say that if they go so far as to hold that any law, whatever its effect, may be upheld because by the " prevailing morality" or the "strong and preponderant opinion" it is deemed "to be greatly and immediately necessary to the public walfare,” we cannot recognize them as controlling our construction of our own Constitution. That the business of banking in the several states may be regulated by legislative enactment is too obvious for discussion. That the extent to which such state regulation may be carried must depend upon the difference in constitutional provisions is also plain. How far these late

decisions of the Federal Supreme Court are to be regarded as committing that tribunal to the doctrine that any citizen may be deprived of his private property for the public welfare we are not prepared to decide. All that it is necessary to affirm in the case before us is that in our view of the Constitution of our state the liability sought to be imposed upon the employers enumerated in the statute before us is a taking of property without due process of law, and the statute is, therefore, void.

The judgment of the Appellate Division should be reversed and judgment directed for the defendant, with costs in all courts.

CULLEN, Ch. J., GRAY, HAIGHT, WILLARD BARTLETT, CHASE and COLLIN, J.J., concur; CULLEN, Ch. J., also files an opinion, with whom WILLARD BARTLETT, J., concurs.

Following is the separate opinion written by Chief Justice

Cullen:

I concur in the opinion of Judge Werner for reversal of the judgment appealed from. I concede that the Legislature may abolish the rule of fellowservant as a defense to an action by employee against the employer. Indeed, we have decided that in upholding the so-called Barnes Act (Schraidin v. N. Y. C. & H. R. R., 194 N. Y. 534). I concede that the Legislature may also abolish as a defense the rule of assumption of risk, and that of contributory negligence unless the accident proceed from the willful act of the employee. I concede that in a work, occupation or business of such a nature that the Legislature might prohibit its pursuit or exercise altogether, the Legislature may prescribe terms under which it may be carried on. Plainly, this litigation does not present such a case. The Legislature could not revoke the franchise it had previously given to the defendant to operate a railroad (People v. O'Brien, 111 N. Y. 1). I am not prepared to deny that where the effects of the work, even though prosecuted carefully, go beyond a person's own property and injure third persons in no way connected therewith, the person for whose account the work is done may be held liable for injuries occasioned thereby. I also concede the most plenary power in the Legislature to prescribe all reasonable rules for the conduct of the work which may conduce to the safety and health of persons employed therein. But I do not deny that a person employed in a lawful vocation, 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 obligation 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 urged that the legislation before us can be upheld on the decision of the Supreme Court of the United States in Noble State Bank v. Haskell (219 U. S. 104). In support of the claim there is cited from the opinion the following: "It may be said in a general way that the police power extends to all the great public needs. (Canfield v. United States, 167 U. S. 518.) It may be put forth in aid of what is sanctioned by usage or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare" (p. 111. It is possible that the doctrine of these two sentences would justify the statute before us and possibly any legislation, if only supported by a sufficient popular demand, but it is both unfair and unsafe to excerpt fragmentary sentences from the opinion of a court and interpret them apart from the context of the whole opinion. However that may be, the decision in the Noble Bank case is not controlling upon this court in the construction of the constitution of our own State, and I am not disposed to accept it, at least until it has received the approval of a majority of the court. I concur with Judge Werner that the act, as applicable to the case before us, cannot be considered as an exercise of the power of the State to regulate corporations. The act is general, not confined to corpora tions, and even if it were, I think its effect would be a deprivation of property not authorized by the reserved power to regulate. As to corporations hereafter formed the question is very different. The franchise to be a corporation is not one inherent in the citizen, but proceeds solely from the bounty of the Legislature, and for that reason the Legislature may dictate the terms on which it will be granted and require the acceptance of the provisions of this act as a condition of incorporation. (Purdy v. Erie R. R., 162 N. Y. 42; Minor v. Erie R. R., 171 N. Y. 566; People ex rel. Schurz v. Cook, 110 N. Y. 443; S. C., 148 U. S. 397; Chicago, R. I. & Pac. R'y v. Zernecke, 183 U. S. 582.) Even in the case of existing corporations the corporate existence of all those created since the Constitution of 1846 may be revoked by the Legislature, though the property rights of such corporations and their special franchises other than the one to be a corporation cannot be impaired. (Const., Art. VIII, sec. 1; Lord v. Equitable Life Assur. Soc'y, 194 N. Y. 212.) The property and franchise would have to be managed by the owners as partners or tenants in common, and the Legislature might require as a condition of the continued right to be a corporation that before the expiration of a reasonable period the provisions of the statute should also be accepted by them. They are in the condition of a tenant at will who, when the landlord raises the rent, must either comply with his terms or, after the expiration of a reasonable time prescribed by a notice to quit, surrender his rights under the lease. But individual citizens, following the ordinary vocations of life, asking no favors of the government, whether a corporate or other franchise, but only the protection of life and property, which every government owes to its citizens, and guilty of no fault, cannot be compelled to contribute to the indemnity of other citizens who, by misfortune or the fault of themselves or others, have suffered injuries, except by the exercise of the power of taxation imposed on all, at least all of the same class, for the maintenance of public charity. Of course, I am not now referring to obligations springing from domestic relations. Willard Bartlett, J., concurs.

THE EMPLOYERS' LIABILITY ACT OF 1910.

With the Compensation Act of 1910 (chapter 674) rendered void by the decision of the Court of Appeals noted in preceding pages, additional importance attaches to the companion act of 1910 (chapter 352) amending the general employers' liability law. This law is not affected by the decision touching the compulsory compensation act. On the contrary in the decision on the latter, the Court of Appeals takes occasion to point out that the primary features of the liability law are clearly within the legislative authority.

The Employers' Liability Act of 1910 comprises two entirely distinct portions, one dealing with the general subject of employers' liability for damages to injured workmen, the other providing a compensation plan which employers and employees may voluntarily adopt as a substitute for the employers' legal liability for damages. These may well be considered separately.

Employers' Liability.

In order to make clear just what advance has been achieved in the employers' liability law of 1910, it will be worth while to note first of all previous laws upon the subject.

Until 1902 the only law governing the liability of an employer for damages to an injured employee in New York State was the common law. By common law is meant the fundamental rights and duties of employers and employees, not defined by written laws, but as interpreted by the courts. In 1902 an employers' liability act was passed which somewhat modified, though mainly only codified, the common law. This act, known as the Employers' Liability Act, applied to all industries and occupations. In 1906 the so-called Barnes Act was passed which further modified the common law but only with respect to railroad employees. The acts of 1902 and 1906 were the only liability acts prior to the 1910 law.* This 1910 law entirely supersedes the law of 1902 and applies to all industries and occupations. It

* The act of 1902 was rewritten and made a part of the Labor Law in the Consolidation of Statutes in 1909, but its provisions were not changed thereby.