Ballard v. Mississippi Cotton Oil Co.

81 Miss. 507

• Court: Mississippi Supreme Court
• Decided: October 15, 1902
• Status: Published

Opinion

Whitfield, C. J.,

delivered the opinion of the court.

We are clearly of the opinion that the stepladder furnished the deceased employe, John W. Ballard, was a wholly unsafe and dangerous appliance; but it is equally clear that he had knowledge of its dangerous character. Under the common law his suit would, therefore, fail; but he sués under the provisions of the act of 1898 (Laws of 1898, p. 85, ch. 66). Section 1 is amendatory of ch. 87 of the laws of 1896 (Laws of 1896, p. 97), which itself is amendatory of § 3559 of the code of 1892, which is a mere rescript of sec. 193 of the constitution of 1890.

Section 193 is in these words: “Every employe of any railroad corporation shall have the same rights and remedies, for any injury suffered by him from the act or omission of said corporation or its employes, as are allowed by law to other persons not employes, where the injury results from the negligence of a superior agent or officer; or of a person having the right to control or direct the services of the party injured; and also when the injury results from the negligence of a fellow servant engaged in another department of labor from that of the party injured, or of a fellow servant on another train of cars, or one engaged about another piece of work. Knowledge by any employe injured of the defective or unsafe character or condition of any machinery, ways, or appliances, shall be no defense to an action for injury caused thereby, except as to conductors, or engineers, in charge of dangerous or unsafe cars, or engines voluntarily operated by them. Where death ensues from any injury to employes, the legal or personal representatives of the person injured shall have the same rights and remedies as are allowed by law to such representatives of other persons. Any contract or agreement, express or implied, made by an employe to waive the benefit of this section, shall be null and void ; and this section shall not be construed to deprive any employe of a corporation, or his legal or personal representative, of any legal right or remedy that he now has by the law of the land. The legislature may extend the remedies herein provided for to any other class of employes. ’ ’

Section 1 of the act of 1898 (Laws 1898, p. 85, ch. 66) is as follows: “Section 1. Be it enacted by the legislature Of the state of Mississippi, that § 3559 of the annotated code of 1892 be amended so that the same shall read as follows, to wit: Every employe of any corporation shall have the same rights and remedies for an injury suffered by him from the act or omission of the corporation or its employes as are allowed by law to other persons not employes, where the injury results from the negligence of a superior agent or officer, or of a person having the right to control or direct the services of the party injured; and also when the injury results from the negligence of a fellow-servant engaged in another department of labor from that of the party injured, or of a fellow-servant on another train or cars, or one engaged about a different piece of work. Knowledge by an employe injured of the defective or unsafe character or condition of any machinery, ways or appliances, or of the improper loading of cars, shall not be a defense to an action for injury caused thereby, except as to conductors or engineers, in charge of dangerous or unsafe cars, or engines voluntarily operated by them. When death ensues from an injury to an employe an action may be brought in the name of the widow of such employe for the death of the husband, or by the husband for the death of his wife, or by the parent for the death of a child, or in the name of the child for the death of an only parent, for such damages as may be suffered by them respectively by reason of such death, the damages to be for the use of such widow, husband or child, except that in case the widow should have children the' damages shall be distributed as personal property of the husband. The legal or personal representative of the person injured shall have the same rights and remedies as are allowed by law to such representatives of other persons. In every such action the jury may give such damages as shall be fair and just with reference to the injury resulting from such death to the person suing. Any contract or agreement, expressed or implied, made by any employe to waive the benefit of this section shall be null and void; and this section shall not deprive an employe of a corporation, or his legal or personal representative, of any right of remedy that he now has by law. ’ ’

The only effect of the amendment of §3559 of the code of 1892 is to substitute the words ‘£ any corporation, ” in sec. 1 of said act of 1898, for the words ££a railroad,” in §3559, and to add, in sec. 1 of the act of 1898, this clause, “ or of the improper' loading of cars. ’ ’

Section 193 of the constitution of 1890 was adopted after the decision of the United States supreme court in Missouri R. R. Co. v. Mackey, 127 U. S., 205 (8 Sup. Ct., 1161; 32 L. Ed., 107), in 1888, and was manifestly intended to authorize legislation along the lines held constitutional in that case — that is to say, to abolish the fellow-servant- rule in the case of employes of railroad corporations whose business was known to be inherently dangerous — and the purpose of the last clause of sec. 193 was to extend the remedies therein provided for to any other class of employes of corporations or persons whose business was, like -that of railroads, inherently dangerous, or whose business was so different from the business of other corporations or persons as to furnish the basis for a classification of the businesses of such corporations or persons, under which their employes might be permitted to sue without reference to the fellow servant rule, while the employes of corporations, or persons not having that sort of business, could not so sue; in other words, to permit a classification based on £ £ some difference bearing a reasonable and just relation to the act in respect to which the classification is proposed. Ellis’ case, 165 U. S., 150 (17 Sup. Ct., 255; 41 L. Ed., 666). The use of the word ££ class,” in the last clause of sec. 193 of the constitution of 1890, clearly indicates that it was not the purpose of the section to extend its provisions to all employes of all persons or corporations, but only to such employes of persons or corporations as operated business between which and the business of all other persons or corporations there exists some difference — some substantial difference — sudh as would be held a warrant for a classification conferring upon such employes of the first class, and denying to employes of the latter class, the benefits of sec. 193 of the constitution. The thought was that a classification might be made, giving to the employes of some corporations and of some persons the right to recover, and denying it to the employes of all other corporations or persons, provided that classification was based upon some distinctive difference between the kinds of business conducted by the one set of corporations or individual employers. Section 193 was itself a special classification of railroad employes, based on the known hazardous character of the operation of railroad cars. It was the direct product of the Mackey case, supra. It is not, therefore, to be supposed that the last clause of the section meant any more than that there might be other classifications of the employes of corporations or individual persons, based also on some distinguishing difference in the nature of the businesses. We do not understand the supreme court of the United States, in its many decisions on this subject, to mean that the dangerousness of a. particular business would be the only basis for distinguishing between the business of corporations or individual employers in the classification, but rather that any substantial difference between particular businesses which would serve as a reasonable-basis for a classification, allowing the employes in the one case to recover, and in the other case not, is sufficient. This we understand to be the doctrine of the Ellis case, 165 U. S., 150 (17 Sup. Ct., 255; 41 L. Ed., 666), and of the McGoun case, 170 U. S., 293 (18 Sup. Ct., 594; 42 L. Ed., 1037), and of St. Louis, etc., v. Paul, 173 U. S., 404 (19 Sup. Ct., 419; L. Ed., 746), in which last case the difference was held to consist in tbe fact that the corporation was engaged in. a public business, and that the public character of that business made a sufficient difference for upholding that statute. Whilst this case seems an extension of the doctrine of the Mackey case, it is clearly an application of the same principle. Neither held that the employes of all could be given this right to recover. One held that the employes of a railroad corporation might be given the right to recover because of the dangerous character of that business; the other, that the employes might recover, under the Arkansas statute involved, because ‘1 of the fact that the corporations [railroad] were clothed with a public trust, and discharged duties of public consequence affecting the community at large,” it being said, following the supreme court of Arkansas, “that the regulation, as promoting the public interest in the protection of employes, to the limited extent' stated, was properly, in the power to amend, reserved under the state constitution.” It will be observed that this decision is criticised as pressing the doctrine beyond its utmost legal tension, in a note of Mr. Freeman to this same case at the top of page 181, 62 Am. St. Rep.; but the criticism should be rather of the supreme court of Arkansas than of the United States supreme court, as we shall show later herein.

The act of 1898, under review, is assailed as violating the fourteenth amendment of the constitution of the United States, because it denies, as alleged, to corporations the equal protection of the laws in two respects: First, in that it applies to the employes of all corporations, without reference to any differences in the respective businesses of the corporations; second, because it discriminates between employes of natural persons and of corporations — and the argument is put briefly thus by way of illustration: “ Suppose one man has an independent fortune, and has a large body of pine land, say in Clarke county, Mississippi, and being desirous of converting the timber upon these lands into lumber, and recognizing that the sawmill business is hazardous and likely to impose large liability upon him, he incorporated this business under the name of the Clarke County Sawmilling Company. Alongside of him and his property in Clarke county is an individual owning an equal body of land, who does not see fit to take this precaution. Suppose the boilers of these two sawmills are notoriously weak, and all the employes of both parties are aware of it, and yet they continue to work. Suppose, now, at the same time and from identically the same cause, a boiler explosion takes place in both mills. The Clarke County Sawmilling Company would, under the act of 1898, he mulcted in damages, but the individual would not be liable. ’ ’ And it is urged that the act applies to all corporations, but to no natural persons, and, since the natural person and the corporation might be both engaged in precisely the same business, a discrimination in such cases does not rest on any difference in the business. Possibly the clearest statement of the doctrine contended for by appellee is that stated in Soon Hing v. Crowley, 113 U. S., 708, 709 (5 Sup. Ct., 733; 28 L. Ed., 1145), as follows: “The discriminations which are open to objection are those where persons engaged in the same business are subject to different restrictions, or are held entitled to different privileges under the came conditions. It is only then that the discrimination can be said to impair that equal right which all can claim in the enforcement of the law. ’ ’ It the Ellis case, supra, it is said that the classification must always rest upon “ some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily.”

Multiplied citations from the United States supreme court could be made, but the thought running through them all, as we understand them, clearly is that the classification is not to be made, except upon the basis of some difference between the business of those favored and the business of those not favored —a substantial difference warranting the classification. We have read critically all the decisions cited in the briefs from the United States supreme court without finding any decision holding expressly that a statute providing that the employes of all corporations may so recover can be upheld. We have read carefully, also, the decisions from the state supreme courts cited, and others not cited, by counsel. We will quote briefly from a few of these to show that the line of distinction is'the one we have indicated.

In Holden v. Hardy, 169 U. S., 393 (18 Sup. Ct., 388; 42 L. Ed., 780), the court says: £ £ While the business of mining-coal and manufacturing iron began in Pennsylvania as early as 1716, and in Virginia, North Carolina and Massachusetts even earlier than this, both mining and manufacturing were carried on in such a limited way and by such primitive methods that no special laws were considered necessary, prior to the adoption of the constitution, for the protection of the operatives; but in the vast proportions which these industries have since assumed it has been found that they can no longer be carried on with disregard of the safety and health of those engaged in them, without special protection against the dangers necessarily incident to those employments. In consequence of this, laws have been enacted in most of the states designed to meet these exigencies, and to secure the safety of persons peculiarly exposed to those dangers. Within this general category are ordinances providing for fire escapes for hotels, theaters, factories, and other large buildings, a municipal inspection of boilers and appliances designed to secure passengers upon railways and steamboats against dangers necessarily incident to these methods of transportation. In states where manufacturing is carried on to a large extent, provision is made for the protection of dangerous machinery against accidental contact; for the cleanliness and ventilation of working rooms; for the guarding of well holes, stairways, and elevator shafts, and for the employment of sanitary appliances. In others, where mining is the principal industry, special provision is made for the shoring up of dangerous walls, for ventilation shafts, bore holes, escapement shafts, means of signaling the surface for supply of fresh air, and the elimination, as far as possible, of the dangerous gases; for safe means of hoisting and lowering cages; for a limitation upon the number of persons permitted to enter a cage, and that cages shall be covered; and that there shall be fences and gates around the top of shafts, besides other similar precautions. . . . These statutes have been repeatedly enforced by the courts of the' several states, their validity assumed, and, so far as we are informed, they have been uniformly held to be constitutional. ’ ’

All the instances set forth here illustrate the principle that the discrimination in' favor of certain employes is always based upon some distinctive difference in the business about which they are employed — a difference inhering in the very nature of the business.

In the case of Smith v. Louisville & Nashville R. R. Co., 75 Ala., 449, the court says : “This statute creates an entirely new cause of action — one theretofore unknown. Before its enactment, February 24, 1872, neither the father nor the mother could recover damages for such killing. Not only does the statute create a new cause of action, but it confines the right to maintain such a suit to the father, if living, and, if not, to the mother. If neither be living, no one else can maintain the suit. And the statute is highly penal in its' terms, and must be construed as a penal statute. Is the act copied above constitutional? It will be observed that under the statute the action lies only against certain classes — corporations and private associátions of persons. These are held accountable for the wrongful acts and omissions of their officers and agents. Individuals engaged in the same business, having the same description of officers or agents, may cause the death of a minor child by the wrongful act or omission of such officer or agent, and there will be no liability for such death. To illustrate: Manufacturing establishments, in all their extensive variety, mining enterprises, cotton compresses, mills, steam vessels, and even railroads, may be owned and operated without incorporation, and by a single proprietor. These are not within the law; and for the death of a minor child, caused by the wrongful act or omission of an agent of such enterprise, neither the father nor the mother can maintain a suit. If, however, there be more owners than one, or if the enterprise be incorporated, then the statute gives a right of action to the father, if living, and to the mother, if he be dead. This precise difference the statute makes, although the character of business and the wrongful act or omission of the agent be in each case the same. How this will work will readily suggest itself. If the employer, being a single individual, be not responsible for the wrongful act or omission of the agent he employs, how can the same act by the same agent employed under the same circumstances, impose a penalty on the innocent employer, merely because two or more owned the business and united in employing the agent ? If so, on what principle ? Is individual enterprise less amendable to legislative surveillance than associated capital? Within the last twenty years very important constitutional provisions, federal and state, have been adopted. Article 14 of the amendments to the constitution of the United States declares (sec. 1) that £ no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.’ Speaking of this provision, Justice Field, of the United States supreme court, in County of San Mateo v. So. P. R. R. Co., 8 Am. & Eng. R. R. Cas., 1, said : £ It not only implies the right of each to resort on the same terms with others to the courts of the country for the security of his person and property, the prevention and redress of wrongs, and the enforcement of contracts, but also his exemption from any greater burdens or charges than such as are equally imposed upon all others under like circumstances.’ 8 Am. & Eng. R. R. Cas., 1-11, 8 Sawy., 238 (13 Fed., 722). In the case of Deppe v. Chicago, R. I. & P. R. Co., 36 Iowa, 54, the court says : £ The defendant asked the court to instruct the jury that, the plaintiff, in view of his employment (shoveling dirt at a bank) at the time of his injury, was not within the purpose and meaning of the act, and hence they should find for the defendant. This was refused, and thereon arises the first assigned error. It was said in the case of McAunich v. M. & R. Co., 20 Iowa, 338, which was an action by the administratrix of a brakeman: ‘ If there is an employer and employe, but no business of a railroad company to be engaged in, then the case is not within the act. But the same liability is extended by the act, upon the same terms, to all in the same situation. ’ And in another case, decided on the same day (Ney v. D. & S. C. R. Co., Id., 347), it was held that ‘in connection with railroads, the term ‘ employe ’ applies to the conductors, agents, superintendents, and others engaged in operating the road, and the like, and not to contractors or persons building or constructing the roadbed, or laying down the ties and rails.’ It was under this construction of the language of the statute, that it was held constitutional, as before explained.’ But if the statute could .be so construed as to apply to all persons in the employ of railroad corporations, without regard to the business they were employed in, then it would be a clear case of class legislation, and .would not apply upon the same terms to all in the same situation, and hence would be unconstitutional, and manifestly so. To illustrate: Suppose a railroad company employ several persons to cut timber on its right of way where it is about to extend its road, and the landowner employs a like number of persons to cut timber on a strip of equal length alongside of such right of way. If one of each set of employes shall be injured by the negligence of a coemploye, and the employe of the railroad company can, under the statute, maintain an action against his employer, and the other cannot, then it is clear that the law does not apply upon the same terms to all in the same situation. The law,- then, would not have uniform operation, but would be violative of the constitution, just as much as a law that should prescribe, under the same circumstances, different liabilities for merchants, for mechanics, and for laborers. The manifest purpose of the statute was to give its benefits to employes engaged in the hazardous business of operating railroads. When thus limited, it is constitutional; when extended further, it becomes unconstitutional. 5 ’

We must confess that the argument upholding the constitutionality of the statute before us is exceptionally able, and presents many objections to the view we have stated, but objections all of which we think answerable. For example, it is said, first, that, since the act of 1898 is amendatory of § 3559 of the code, the court would be warranted in limiting the words “any corporation” to such corporations as, like railroads, are engaged in a hazardous business. The argument is that, since § 3559 applies alone to railroads, and since the only pertinent amendment is the change of the words ‘ £ a railroad ’ ’ into the words ‘£ any corporation, ’ ’ the act retaining bodily the language used in § 3559 as applicable to railroads only, the act of 1898 must mean, in the use of the words “ any corporation,” any corporation ejusdem generis with railroad corporations — corporations of that kind, whose business is hazardous. But the complete answer to this very ingenious suggestion is that the method of amending a statute has been changed by sec. 61 of the constitution, so as to make the whole of the law on the subject appear in the amendment; so that the only form in which we have § 3559 is in sec. 1 of said act of 1898. The language is that “§ 3559 of the code of 1892 be amended so that the same shall read as follows, to-wit: Every employe of any corporation,” etc. Section 3559 does not exist in the body of our law, except as set out in sec. 1 of the act of 1898. Another objection to this view is that it would have been extremely easy, if such had been the legislative purpose, to have said, £ £ Every employe of any corporation whose business is inherently dangerous.” We think we must read the language as the legislature has written it, and, so read, the legislature clearly meant to extend the remedy to the employes of all corporations, without reference to any distinction existing between the different business of corporations.

2. In respect to the cases of Pittsburg, C., C. & St. L. R. Co. v. Montgomery, 152 Ind., 1 (49 N. E., 582; 71 Am. St. Rep., 301), and Tullis v. Lake R. R., 175 U. S., 348 (20 Sup. Ct., 136; 44 L. Ed., 192), it is very earnestly insisted that the Tullis case, 175 U. S., 350 (20 Sup. Ct., 136; 44 L. Ed., 192), upholds the view that a statute like this, applicable to all corporations, is not unconstitutional; and it is said that these two cases further uphold the view that the court may, by a process of judicial inclusion and exclusion, look to the evidence in each case to determine in that way — from the evidence, showing the nature of the business — whether any particular corporation falls within or without the constitutional line of demarkation. This argument for appellant is put with such clearness and power that we do not think the presentation could be improved upon, and so we quote it entire. Says learned counsel:

‘£ The mere fact that natural persons are not included in the act does not render it obnoxious to the provisions of the fourteenth amendment. If so, why does the supreme court, in the case of Tullis v. Lake R. R. Co., 175 U. S., 348 (20 Sup. Ct., 136; 44 L. Ed., 192), uphold almost a similar statute as to railroads ? The language of the Indiana act was £ Railroad and other corporations. ’ It did not include individuals. There are a number of individuals in the United States who have the means to operate railroads, and doubtless there are instances where railroads are owned and operated by individuals; yet the supreme court of the United States, in the above cited case, holds such legislation as is under consideration now not in contravention of the constitution. The illustration of opposing counsel will apply just as forcibly to an individual operating a railroad as it does to a sawmill and commercial corporation. The case of Tullis v. Lake R. R. Co., 175 U. S., 348 (20 Sup. Ct., 136; 44 L. Ed., 192), is, we think, in point to uphold the constitutionality of the act under consideration. While the court does use the language that, considering the act of Indiana as applying only to railroad corporations, it cannot be regarded as in conflict with the fourteenth amendment, yet it is evident that the court intended to convey the idea that it was not called upon to consider it, except so far as railroad corporations were concerned, and it is not to be taken at all as an intimation that it would hold the act of Indiana unconstitutional as to other corporations. The only ground upon which counsel attacks the act of 1898 is that it does not extend its provisions to natural persons, and therefore it is class legislation; and the court, in its order remanding the case, seems to intimate tha t the fact that natural persons are not included in the act would render it unconstitutional, as it applies to all corporations and to no natural persons. But on this point the case of Tullis v. Lake R. R. Co., 175 U. S., 348 (20 Sup. Ct., 136; 44 L. Ed., 192), it seems to me, is decisive. If the fact that the omission from the act of natural persons would render the act in conflict with the fourteenth amendment, then the court would have said that the act imposed liabilities and restrictions upon corporations operating railroads, but did not' impose the same liabilities and restrictions upon natural persons operating railroads, and was therefore unconstitutional. If the addition of the words ‘ natural persons ’ to the act of 1898 under consideration would make it consistent with the provisions of the fourteenth amendment, as the court would seem to think, and counsel for appellee undoubtedly think, then the omission of the words ‘ natural persons ’ from the Indiana act construed in Tullis v. Lake R. R. Co., supra, should certainly have rendered the Indiana act obnoxious to the fourteenth amendment; yet the supreme court of the United. States did not so hold. It seems to me there is no escape from this argument. At first thought I was impressed with the fact that it was absurd to make the constitutionality of the act depend upon the evidence deduced in each particular case; but after considering the matter I have come to the conclusion that that is what the court or legislature does when it says, as it did in Tullis v. Lake R. R. Co., 175 U. S., 348 (20 Sup. Ct., 136; 44 L. Ed., 192), that the business was dangerous. The act simply says ‘ railroad corporations, ’ and the court says that the legislature had the right to restrict such corporations in their dealings with their employes, because of the dangerous and hazardous character of the employment and business in which such corporations are engaged. But how do you know that railroad corporations are engaged in a dangerous and hazardous business ? You must know it either as a matter of general knowledge or from the testimony of witnesses’ in any particular case. If the court takes cognizance from general knowledge that a railroad corporation is engaged in a dangerous and hazardous business to its employes, why can it not take notice from general knowledge that a corporation engaged in the' manufacture of oil from cotton seed, or of furniture from various woods, is engaged in a hazardous business ? If the court does not know this of its own general knowledge, what is the objection to ascertaining it from the facts of each particular case as testified to by witnesses ? It would be impossible for the legislature to have enumerated, eo nomine, each and every corporation to which it is intended the act should apply. If it did not do this, then there were only two courses to pursue: To say ‘all corporations using the'dangerous agency of steam in operating its machinery. ’ Then the court would have to take cognizance from general knowledge that any specific corporation, from its name or the character of its business, used steam in operating its machinery, or else would have to inform itself as to this from testimony of witnesses in any given case. If the legislature should pursue the only other course, to wit, of saying £ any corporation,5 and the court should deem that there might be some corporation to which it would be unconstitutional to apply such an act, then what is the objection to determining, either from general knowledge or the specific testimony of witnesses, that such corporation falls within the terms of the act, constitutionally or unconstitutionally, according to the fact whether or not it is engaged .in a business hazardous and dangerous to its employes ?5 ’

We, however, think the meaning of the TulUs case is distinctly that, if the Indiana statute had not had in it, on its face, the words ‘‘railroad corporations,” it would have been held by the supreme court of the United States unconstitutional. It is true the objection in that case was made that it was unconstitutional because the language, “railroad corporations and other corporations,” was exactly equivalent to the words, “ all corporations,” which would present a statute just like ours. But it is to be distinctly noted that the Indiana supreme court held, and the United States supreme court counted on that holding, that that objection could not be made by a railroad company; in other words, the Indiana supreme court declined to entertain the objection, since the party making the objection was a railroad corporation, and the supreme court of the United States accepted the state supreme court’s construction of its state’s statute. The words ‘ ‘ railroad corporation ’ ’ appearing also on the face of the statute, as to the objection that individuals own railroads, and that consequently the supreme court of the United States, in Tullis case, supra, must be assumed to have held that such legislation is valid, though applying to corporations owning railroads, and not to individuals owning railroads, although both are in exactly the same business, we must confess that it is extremely difficult to make answer for the supreme court of the United States. It may be that the instances of individual ownership of interests so vast as railroad interests usually are, are so very rare as not to have been thought worthy by the supreme court of the United States of special consideratibn, though this surely ought not to affect the principle. At all events, it is too plain for debate that in all the decisions of the federal supreme court the ground on which such legislation as this has been - vindicated in some essential and substantial difference between the businesses of the corporations favored and the businesses of the corporations discriminated against.

3. But the most difficult proposition to answer, made by-learned counsel for appellant, is this: that the supreme court of the United States, in Chicago R. R. Co. v. Pontius, 157 U. S., 209 (15 Sup. Ct., 585; 39 L. Ed., 675), held that, in severing the unconstitutional from the constitutional parts of a statute, a court may, although the language of the statute clearly embraces all corporations, affect such severance, by looking to the evidence in each particular case, and thus “judicially excluding or including” a particular corporation, according as the evidence in each case may show that the business of such corporation does, or does not, bring it within the purview of the statute. The statute of Kansas in that case is as follows: “ Every railroad company organized or doing business in this state shall be liable for all damages done to any employe of such company, in consequence of any negligence of its agents, or by any mismanagement of its engineers, or employes, to any person sustaining such damages.” And the court said: “ It is now contended that the plaintiff was a bridge builder; that this legislation only applied to employes exposed to the peculiar hazards incident to the use and operation of railroads; that the railroad could not be subjected to any greater liability to its employes who were engaged in building its bridges than any other, private individual or corporation engaged in the same business; and that the statute had been so construed in this case as to make the company liable to its employes when engaged in building its bridges, notwithstanding bridge building was not accompanied, and had not been treated by such legislation as accompanied, by peculiar perils, thus discriminating against the particular corporation, irrespective of the character of the employment, in contravention of the fourteenth amendment. But the difficulty with the argument is that the supreme court found upon the facts that, although the plaintiff’s general employment was that of a bridge carpenter, he was engaged at the time the accident occurred, not in building a bridge, but in loading timber on a car for transportation over the line of defendant’s road; and Mo. P. R. R. Co. v. Haley, 25 Kan., 35; Union Pac. R. R. Co. v. Harris, 33 Kan., 416 (6 Pac., 571), and Atchison, T. & S. F. R. R. Co. v. Koehler, 37 Kan., 463 (15 Pac., 567), were cited, in which cases it was held that a person employed upon a construction train to carry water for the men working with the train, and to gather up tools and put them in the caboose or tool car, a section man employed by a railroad company to repair its roadbed, and to take up old rails out of its track and put in new ones, and a person injured while loading rails on a car to be taken to other portions of company’s road, were all within the provisions of the act in question, and the court said: ‘ In this case the plaintiff was injured while on a car assisting in loading timbers to be transported over defendants road to some other point. The mere fact that the plaintiff’s regular employment was a bridge carpenter does not affect the case, nor does it matter that the road was newly constructed, or whether it was in regular operation or not. The injury happened to the plaintiff while he was engaged in labor directly connected with the operation of the road, and the statute applies,'even though it should be given the construction counsel places on it. ’ And see Chicago, Rock I. & P. R. R. Co. v. Stahley, 62 Fed. Rep., 363 (11 C. C. A., 88).”

It is certainly true that in the cases cited from Kansas, as also the case we have heretofore referred to of Deppe, supra, and also in the two cases of McAunich and Ney v. R. R. Co., 20 Iowa, 338, 347, the court did look to the evidence to see whether the person suing was or was not an employe, and further, whether, though an employe, he was such an employe as was actually engaged at the time in the operative service of the railroad — that is, service ' connected with the running of the cars. It might be said that the thing which distinguishes that statute from ours is that in the Kansas statute and the Iowa statute the words ££ railroad company ’ ’ appear on the face of the statute, and that in all these cases from Kansas and Iowa the courts had, therefore, statutes on the face of which the words £ £ railroad company ’ ’ appeared, and that as the court judicially knew that the business of railroading was a hazardous business, inherently such, and as the statute was hence the exact equivalent of a statute framed thus, <£ Every employe of any corporation or individual whose business is inherently dangerous,” therefore all the court did was to see, from the evidence, whether the employe was an employe of a railroad corporation — that is, equivalently, of a corporation whose business was inherently dangerous. In other words, those courts might say — and this would be the controlling thought on that view — that they found the boundary by which to. sever in the language of the statute itself, £ £ railroad company, ’ ’ and all that they looked to the evidence for was to be sure that the particular employe was an employe of the kind of corporation named in the statute; and hence those courts would say that in none of these decisions did the court sever the unconstitutional provisions of the statute from the constitutional by looking to the evidence, but solely by the words £ £ railroad company ’ ’ found on the face of the statutes.

We have said that above line of thought might be indulged in for .the purpose of supporting the decisions of the supreme courts of Kansas and Iowa in the construction of their statutes. And we may say that that line of thought might also be invoked in the hope of supporting the following cases: Leep v. St. Louis, I. M. & S. R. R. Co., 58 Ark., 407 (25 S. W., 75; 23 L. R. A., 264; 41 Am. St. Rep., 109) and St. Louis, etc., v. Paul, 64 Ark., 83 (40 S. W., 705; 37 L. R. A., 504; 62 Am. St. Rep., 154), and also Minneapolis & St. L. R. R. Co. v. Herrick, from Minnesota, affirmed, 127 U. S., 210 (8 Sup. Ct., 1176; 32 L. Ed., 109), and Chicago R. R. v. Pontius, 157 U. S., 209 (15 Sup. Ct., 585; 39 L. Ed., 675), affirmed from the supreme court of Kansas. But, with all deference, it is impossible for us to regard any of these decisions as sound on this point. The court did not, in those cases, sever the statute, so as to divide constitutional provisions from unconstitutional provisions. The act of the court in each and every one of these cases was distinctly not a severance of a statute, separating constitutional from unconstitutional provisions in the statute, all of the provisions appearing upon the face of the statute. The act of the court was an alleged judicial limitation of general words in a statute, by the evidence in each case, so as to hold one employe within and another employe without such general words. Limitation by judicial construction is not severance of a statute. Severance of a statute takes place only where both sets of provisions, constitutional and unconstitutional, appear upon the face of the statute itself, and the court separates, if the provisions are not interdependent, the constitutional from the unconstitutional, and strikes from the statute the unconstitutional provisions, leaving the constitutional provisions in the statute. But where, as in all these cases, there are just two general words, “any employe, ” what the court does is simply to look to the evidence in each case, and from that evidence determine, not from the provisions on the face of the statute, whether the particular employe is or is not the kind of employe falling within the supposed, not the declared, intent of the act, that furnishes a case, not for a severance óf a statute, but for the limitation, by alleged judicial construction of general words, by the evidence in the case. We say alleged judicial construction. We think it is judicial legislation. The latter — that is to say, the so-called limitation by judicial construction; judicial legislation as we conceive it — is never; permissible. And hence we think all the decisions we have referred to on this point clearly unsound. The difficulty is in finding the true test as to when a statute may be severed. That test clearly is this: That whenever the court finds on the face of a statute a number of different provisions, some constitutional and some unconstitutional, there it may sever, if they be not interdependent, between these provisions, striking out the unconstitutional; and, let it be 'marked, that in every such case there is something to sever between on the face of the statute. That is what is meant by the severance of a statute. But wherever a court, in order to uphold the provisions óf a statute as constitutional, has to interpolate in such statute provisions not put there by the legislature, in order, by such interpolation, to make the provision which the legislature did put there constitutional, this is no case of severance in any proper legal sense; nor is it in any legal or logical sense a proper limitation of the provisions which are in a statute by judicial construction. Such action by a court is nothing less than judicial legislation pure and simple.

That we have stated the true test clearly appears from two decisions of the United States supreme court: The first, United States v. Reese, 92 U. S. 214, 23 L. Ed., 566, where the court say, as to the test of severance of a statute, ‘ ‘ the proposed effect is not to be attained by striking out, or disregarding the words that are in the section, but by inserting those which are not now there. The question, then, to be determined, is whether we can introduce words of limitation into a penal statute, so as to make.it specific, when, as expressed, it is general only. It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside, and say who could be rightly detained, and who could be set at large. This would, to some extent, substitute the judicial for the legislative department of the government. ’ ’ And consult carefully the cases cited, referring to the Reese case, set out in Rose’s notes at p. 789. The other case, not referred to by any of the counsel is the case of Baldwin v. Franks, 120 U. S., at pp. 685-690 (7 Sup. Ct., 656, 763; 32 L. Ed., 766), to which we call critical attention. The court say: “In United States v. Harris, 106 U. S., 629 (1 Sup. Ct., 601; 27 L. Ed., 290), it was decided that this section was unconstitutional, as a provision for the punishment of conspiracies of the character therein mentioned, within a state. It is now said, however, that in that case the conspiracy charged was by persons in a state, against a citizen of the United States and of the state, to deprive him of the protection he was entitled to under the laws of that state, no special rights or privileges arising under the constitution, laws, or treaties of the United States being involved; and it is argued that,- although the section be valid so far as such an offense is concerned, it is good for the punishment of those who conspire to deprive aliens of the rights guaranteed to them in a state by the treaties of the United States. In support of this argument, reliance is had on the well-settled rule that a statute may be in part constitutional, and in part unconstitutional, and that, under some circumstances, the part which is constitutional will be enforced, and only that which is unconstitutional rejected. To give effect to this rule, however, the parts — that which is constitutional, and that which is unconstitutional — must be capable of separation, so that each may be read by itself. This statute, considered as a statute punishing conspiracies in a state, is not of that character; for in that connection it has no parts, within the meaning of the rule. Whether it is separable, so that it can be enforced in a territory, though not in a state, is quite another question, and one that we are not now called on to decide. It provides, in general terms, for the punishment of all those who conspire for the purpose of depriving any person, or any class of persons, of the legal protection of the laws, or of equal privileges or immunities under the laws. A' single provision [like the two words in this statute], which makes up the whole section, embraces those who conspire against citizens, as well as those who conspire against aliens — those who conspire to deprive one of his rights under the laws of a state, and those who conspire to deprive him of his rights under the constitution, laws, or treaties of the United States. The limitation which is sought must be made, if at all, by construction, not by separation. This, it has often been decided, is not enough. ’ ’

This language is decisive of the unsoundness of the view taken by the supreme courts of Iowa, Kansas, Arkansas, and Ohio, cited above. But, it may be said, were not all these cases affirmed by the supreme court of the United States ? Certainly. But why? That is made extremely plain by the supreme court of the United States in Tullis v. R. R., 175 U. S. 348, 44 L. Ed., at page 194, and Waters-Pierce Oil Co. v. Texas, 177 U. S., 28 (20 Sup. Ct., 518; 44 L. Ed., 657). Chief Justice Fuller in the former says the supreme court of the United States accepted the construction of the Arkansas supreme court “because that court had so decided,” and also distinctly says that the decision of the supreme court of Indiana in Pittsburg, C., C. & St. L. R. Co. v. Montgomery, 152 Ind., 1 (49 N. E., 582; 71 Am. St. Rep., 301), was affirmed because the supreme court of the United States was bound, to accept the construction put upon an Indiana statute by the supreme court of Indiana. The very point expressly argued in the Tullis case was that the supreme court of the United States should hold the Indiana statute unconstitutional, notwithstanding the decision on the Kansas, Iowa, and Ohio statutes, because of the particular phraseology of the Indiana statute; but Chief Justice Fuller said that that view asked the United States supreme court “to disregard the interpretation of a state statute by the court of last resort of a state, and, by adverse construction, to decide that the state law was repugnant to the constitution of the United States. But,” said the Chief Justice, '“the elementary rule is that this court accepts the interpretion of a statute of a state affixed by the court of last resort thereto. ’ ’ And so, in Waters-Pierce Oil Co. v. Texas, the court was asked to apply the doctrine of the Reese, Harris, and Franks’ cases to the Texas statute, and hold it violative of the fourteenth amendment. This statute provided: “Every foreign corporation violating any of the provisions of this act,” etc., just as the Kansas and other statutes had said “railroad corporations” should be liable to all their employes, without reference to whether engaged in its operative service or not. The Texas Court of Civil Appeals held that they could separate this language, “any of the provisions of this act,” into such provisions as related to local commerce, and such as related to interstate commerce, and so upheld their act. Clearly this was no severance of the act. It was putting into the act words not there. It was determining by the evidence in each case, whether the commerce was local or interstate. And hence the earnest insistence for the application of the doctrine of the Reese and other cases cited above. But what was the reply of the United States supreme court ? That in those cases the .interpretation of certain statutes of the United States was involved, and that the supreme court of the United States, interpreting them and expressing its own opinion originally, as to whether this sort of so-called severence could be indulged in, distinctly held that it could not; but that, if the Texas court of civil appeals chose to put that sort of construction on its statute, the United States supreme court was bound to accept that construction, and had no power to do any more than to determine whether the statute, so construed, violated the fourteenth amendment. Says Justice McKenna, speaking for the court: “The courts of Texas have like power of interpreting the statutes of Texas. What they say the statutes of that state mean, we must accept them to mean, whether it- is declared by limiting the objects of their general language, or by separating their provisions into valid or invalid parts,” — citing the very cases we have just referred to, the Tullis case and the Paul case.

It is perfectly obvious to our minds, from the Reese ease, and Harris case, and the Franks ease, on the penal and criminal side of the law, as well as from Keokuk Packet Co. v. City of Keokuk, 24, 95 U. S. 80, L. Ed., 377, and the many cases referred to in Judge Rose’s not§s in the appendix to that volume, citing the Keohuh case, on the civil side.of the law, that the supreme court of the United States distinctly holds, as its own view, that the sort of severance, or the soft of so-called limitation by judicial construction, where the court determines, by the evidence in each case, is not allowable. The distinction is put, as we have stated, in the clearest possible form in the Frantss and Reese cases, supra. Counsel relies on this Keokutc case, strongly, to show that there is a difference, as to the application of the principle we are discussing, between penal or criminal statutes and civil statutes. The language of Justice Strong at the conclusion of the opinion is very broad; but it is perfectly plain, when the facts are looked to, that severance could be had between two provisions in the statute. One provided that all water craft landing at an improved wharf should pay certain wharfage fees. Another independent section provided that all water craft landing at any part of Water street, for a distance of six and one-half miles, should pay wharfage fees, whether there was any wharf there or not. The court held that it was constitutional to require fees for landing at an improved wharf, but not to require fees of a boat landing on the banks of the river; and, as both sections were on the face of statute, the court simply severed between them, and struck out the unconstitutional section. That was a perfectly proper application of the doctrine of severance. between the provisions of the statute. And so, in the case of Chicago, etc. v. Jones (Ill.), 37 N. E., 247 (24 L. R. A., 141; 41 Am. St. Rep., 293) counsel will clearly see that the statute had two sets of provisions. One related to unj ust discrimination in transportation charges; the other, to extortionate charges. The supreme court of Illinois accordingly severed the unjust discrimination sections from the sections as to extortion, striking from the statute the unjust discrimination sections which had been held unconstitutional. Here, again, both sets of provisions appeared on the face of the statute, and it was a proper case for severance. In a word, learned counsel will not fail to see, upon a critical examination of-all the cases upon the subject, that there never can be any room for the application of the doctrine as to severing a statute, except in those cases where the. constitutional provisions, as well as the unconstitutional provisions, both appear on the face of the statute, and that, wherever a court in order to make a severance has to insert in a statute words or provisions not put there by the legislature, it is guilty simply of judicial legislation.

We wish to call special attention to the further fact that we are not alone in the criticisms we have indulged in, as to certain courts above. Mr. Freeman, perhaps the profoundest law analysist living, in a most able note to St. Louis R. R. Co. v. Paul, 62 Am. St. Rep., at top of p. 181, distinctly states it as his view that the Leep case, supra, and other like cases, cannot be upheld. His criticism seems to be rather of the supreme court of the United States for affirming those decisions; but, as said in the first part of this opinion, his criticism should not have been of that court, but of the state supreme courts, for the construction placed by them upon the statutes of their respective states. As pointed out in the Tullis case, and the Waters-Pierce Oil Co. case, supra, the United States supreme court was helpless, being bound by the construction adopted by the said state supreme courts, and, as we have pointed out, took special pains to say that it affirmed the cases simply because’it was so bound. It is said, and correctly, that if we were to place upon this statute the construction that the legislature only meant such corporations as had a business inherently dangerous, the supreme court of the United States would be bound to accept that construction, and, accepting it, would undoubtedly affirm our judgment. But we must carefully ascertain, and fearlessly uphold, in every case, the conclusion which, on our consciences, we think clearly right, without reference to results in a higher tribunal. This court neither ‘ seeks affirmance, nor fears reversal, at the hands the United States supreme court. It is concerned alone to find the right, and to maintain it. Of course,. if the cases invoked by the very able counsel for appellant from the United States supreme, court maintained the doctrine that a statute like this, using the words ‘ ‘ airy corporation, ’ ’ could be either severed, or limited, by the so-called judicial construction, restraining its general terms by the evidence in each case, so as to exclude, or include, according to the testimony in each varying case — that is to say, if that court had meant and declared that doctrine as the original view of that court — we would be bound to accept that view, since that court is an appellate court from this, where federal questions are involved. But it is made by the United States supreme court perfectly plain that the original view of that court, on this subject of severance and limitation by judicial construction, is utterly at war with the view of the courts we have quoted from, as explicitly declared in the Franks, Harris and Reese cases, supra, and that all those cases were affirmed by the supreme court of the United States because, and only because, it was compelled to accept the construction placed by the respective state supreme courts upon the statutes of their states, and had no power, such construction being accepted, to decide anything else, except the question whether those various statutes, so construed, violated the fourteenth amendment.

But, fourth, it is objected that in the Mackey case the supreme court of the United States distinctly held that it was exclusively within legislative discretion whether these liabilities ‘ ‘ should be applied to common carriers by canal and stage coach, and to persons and corporations using steam in manufactories;” and it is said that there is nothing inherently dangerous in the business of a canal carrier, or of a stage coach. Whether this is true as applied to canals is not so clear. It does seem difficult to find any inherent danger in the business of stage coaching; but, as we have heretofore remarked, we do not understand the dangerousness of a business to be the only-distinctive difference on which such statutes may be upheld. On the contrary, we understand the United States supreme court to hold that such statutes may be upheld, if they are based in their classification upon any substantial and essential differences between the natures of the businesses of the favored corporations or individual employers and the natures of the businesses of all other corporations or individual employers: It may be further said, very properly, that what the supreme court said about canals and stage coaches was quoted from the Iowa supreme court, and was clearly obiter dicta.

5. It is objected, that the United States supreme court decisions would uphold this statute upon the ground that it is perfectly competent to confer upon the employes of all corporations these remedies and rights, whilst denying them to natural persons, because, and only because, of the fact that they are corporations, the creatures of the state, existing and drawing all their vast privileges from the state. It is said that these considerations constitute such, a great difference between the natural person and the corporation' as to uphold such .legislation. And the Ellis case, 165 U. S., 150 (17 Sup. Ct., 255; 41 L. Ed., 666), is cited; the court saying there £4 that it was a sufficient answer, in that case, to the argument that the act would be valid if it extended the penalties to all corporations, and that as a matter of fact that statute did not so extend the penalties to all corporations.” But this is far from decision to that effect. It is a mere comment arguendo.

Again, it is said that in Pac. Express Co. v. Seibert, 142 U. S., 352 (12 Sup. Ct., 250; 35 L. Ed., 1035), it was held that 4 4 the constitution is not violated by special legislation, applied equally to artificial bodies;” and numerous cases are cited from Judge Bose’s notes on this case to sustain this proposition. But the perfect answer to this is that all these are cases as to the power of taxation, a subject wholly different from that under investigation here. And this distinction is clearly pointed out in Connelly v. Union Pipe Co., 184 U. S., 562 (22 Sup. Ct., 440; 46 L. Ed., 679), where the court says: 44 It is sufficient to say that those cases had reference to the taxing power of the state, and involved considerations that could not, in the nature of things, apply to a state enactment like the one involved in the present case. . A state may, in its wisdom, classify property for the purposes of taxation, and the exercise of its discretion is not to be questioned in a court of the United States so long as the classification does not invade the rights secured by the constitution of the United States. But a different consideration controls when a state by legislation seeks to regulate the enjoyment of rights and the persuit of callings connected with domestic trade. ’ ’

Finally, in aid of our view, we refer to the fact that chapter 65, p. 82, of the acts of 1898, which consolidated the rights of action given by § 663 of the code of 1892, expressly uses, as it ought to have done, the words £ £ person or corporation. ’ ’ It provides: ££ Whenever the death of any person shall be caused by any wrongful or negligent act or omission, or by such unsafe character, ways or appliances, as would, if death had not ensued, have entitled the party injured or damaged thereby to. maintain an action and recover damages in respect thereof, and such deceased person shall have left a widow or children, or both, or husband, or father, or mother, or sister, or brother, the person or corporation, ’ ’ etc.

Our conclusion, after the most careful and protracted consideration, is that section 1 of the act of 1898 (acts 1898, p. 85, ch. 66), violates the fourteenth amendment of the constitution of the United States in that it imposes restrictions upon all corporations, without reference to any difference arising out of the natures of their businesses, which are not imposed upon natural persons, and thus denies to corporations the equal protection of the law. We are, therefore, constrained to declare the said act unconstitutional. The legislature, soon to meet, can readily frame an appropriate act not open to these objections.

The arguments in this case, on both sides, are so exception ally able that the reporter is directed to report them in full.

Affirmed.