Kiley v. Chicago, Milwaukee & St. Paul Railway Co.

119 N.W. 309, 138 Wis. 215, 1909 Wisc. LEXIS 44

• Court: Wisconsin Supreme Court
• Decided: March 9, 1909
• Status: Published

Opinions

Tbe following opinion was filed January 5, 1909:

Siebecker, J.

Plaintiff’s right to recover on tbe alleged cause of action is founded on tbe provisions of sec. 1816, Stats. (1898), as amended by ch. 254, Laws of 1907. There is no claim that tbe facts alleged in bis complaint constitute a cause of action against tbe defendant at common law or under sec. 1816, Stats. (1898), as it stood prior to its amendment by ch. 254, Laws of 1907. Tbe lower court sustained the complaint upon tbe ground that sec. 1816, Stats. (1898), in its amended form is valid. Tbe defendant avers that the amended statute creates liabilities and imposes burdens which are forbidden by secs. 1, 9, 13, 22, art. I, of the state constitution and by the XI.Vth amendment to the federal constitution. The alleged obnoxious provisions of the statute were added by the amendatory act, which is embraced in ch. 254, Laws of 1907. It is therefore contended, if this act is invalid, that the provisions of sec. 1816, Stats. (1898), as it stood prior to such amendment, are still in force as the law on the subject. The provisions of ch. 254, Laws of 1907, are assailed as invalid legislation upon several grounds.

It is first contended that the enacting part of this chapter and subd. 1, 2, and 9 must read together, and that when so considered the act is unconstitutional because it denies to railroad companies equal protection and due process of law. These provisions are:'

“Every railroad company shall be liable for damages for all injuries, whether resulting in death or not, sustained by any of its employees, subject to the provisions hereinafter contained regarding contributory negligence on the part of thoinjured employee:

“(1) When such injury is caused by a defect in any locomotive, engine, car, rail, track, roadbed, machinery or appliance used by its employees in and about the business of their employment.

“(2) When such injury shall have been sustained by any officer, agent, servant or employee of such company, while engaged in tire line of his duty as such and which such injury shall have been caused in whole or in greater part by the negligence of any other officer, agent, servant or employee of such company in the discharge of, or by reason of failure to discharge, his duty as such.”

“(9) The provisions of this act shall not apply to employees working in shops and offices.” ,,, ,

There is no controversy raised as to the rights of persons under the provisions of the state and federal constitutions guaranteeing to all persons the equal protection and due process of law. It is, however, contended that the legislature bad no power to impose on railroad corporations only the burdens and liabilities embraced in this statute, and thus to exempt all other corporations, persons, and associations from these burdens and liabilities. Appellant’s chief contention is that this legislation is discriminatory against railroad companies and violates, both the state and federal constitutions forbidding arbitrary and special legislation and the constitutional guaranties of due process and equal protection of the-laws. It is said that corporations are entitled to the rights, of a person within these constitutional guaranties of liberty and equality and that they are afforded the same protection as individuals against an invasion of these rights. They must be granted equal means and equal access to the courts-for the protection of their rights, and the imposition of .burdens, liabilities, and charges which are not imposed on all others under the same circumstances is forbidden. These-rights of corporations were recently recognized in the case of Phipps v. Wis. Cent. R. Co. 133 Wis. 153, 113 N. W. 456. As declared in the opinion of the court in Covington & L. T. R. Co. v. Sandford, 164 U. S. 578, 592, 17 Sup. Ct. 203:

“It is now settled that corporations are persons within the-meaning of the constitutional provisions forbidding the deprivation of property without due process of law, as well as a. denial of the equal protection of the laws” (citing cases).

Since, then, the railroad company, which is the defendant, under these constitutional provisions is protected as an individual in its rights, the question recurs, Do the provisions of ch. 254, Laws of 1907, violate these rights? As this court, stated in the Phipps Case:

“When by statute a person, natural or artificial, is denied an equal remedy in the law or equal protection in the courts, such statute is void [citing]. To this broad rule of equality-of all persons before the law is the exception of the right un■der certain circumstances of proper classification, but this classification must be reasonable and based upon certain rules which bear a just relation to the act in respect to which the •classification is made [citing]

That such classification must be based upon substantial distinctions, be germane to the purpose, cannot rest on existing •circumstances only, nor preclude additions to those included in the class, and must apply equally to all within, received full elaboration in that case and the cases there collated and need not be repeated here. The power of classification for legislative purposes has existed at all times as an incident of legislative power, and exists now unless expressly -forbidden by the constitution. It is also well recognized that the necessity and propriety of such classification are to be determined by the legislative branch of the government and cannot be •disturbed when exercised within the limitations imposed. We must then determine whether the legislature by this legislation has violated accepted rules of classification.

The statute imposes' liabilities on railroad companies for all injuries sustained by any of its officers, agents, servants, or employees while in the performance of their duties, which may be caused, in whole or in greater part, by the negligence of other officers, agents, servants, or employees, those working in shops and offices being excepted. It is strenuously urged that the imposition of these burdens and liabilities on railroad companies only, as a class, violates their right to the equal protection of the law, and that, being a classification based upon the character of the corporation, it furnishes no reasonable distinction or necessity for separating them into a class for purposes of legislation. To ascertain wherein distinction is made by the legislature between railroad companies and individuals and other corporations and associations we must consider the nature and object of the regulation as well as the provisions prescribing rules for the regulation of railroad companies as a class. The context of this statute shows that railroad companies are separated into a class for legislative regulation respecting their liability to tbeir employees for injuries caused by tbeir negligence or tbe negligence of other employees in. tbe course of tbeir employment. Is tbe railroad business distinguished in character from all other businesses so as to justify special regulation of it, as is done by this law ? This we think must be answered in tbe affirmative. Tbe business of operating a railroad differs from others in its nature, in its relation to tbe public, and in tbe peculiar dangers and hazards as regards its employees and the public. These characteristics clearly distinguish the railroad from any other business and call for regulation to meet the conditions and exigencies peculiar to it and such as are wholly inapplicable to any other business. The object of this law is to attain reasonable protection to its employees and to secure the safety of the public. The legislature seeks to attain this through the imposition of these unusual burdens and liabilities, thereby securing from railroad companies the exercise of a degree of care in the selection of competent and careful employees for the conduct of the business commensurate with the hazards and dangers to its employees and the insecurity of the public. Securing the safety of the public, in addition to the protection of its employees, is an important feature which distinguishes a railroad business from any other, and is an important consideration in separating railroads into a class by themselves for legislative purposes. The following cases, selected from many others, are authorities holding statutes similar to that contained in ch. 254, Laws of 1907, valid within the provisions of the state and federal constitutions guaranteeing equal protection and due process of law:

In the case of Mo. Pac. R. Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, the court considered a Kansas statute which enacted that:

“Every railroad company . . . shall be liable for all damages done to any employee of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees, to any person sustaining such damage.”

In considering the claim that it was unconstitutional legislation the court says:

“It [the claim] seems to rest upon the theory that legislation which is special in its character is necessarily within the constitutional inhibition; but nothing can be further from the fact. The greater part of all legislation is special, either in the objects sought to be attained by it or in the extent of its application. . . . And when legislation applies to particular bodies or associations, imposing upon them additional liabilities, it is not open to the objection that it denies to them the equal protection of the laws if all persons brought under its influence are treated alike under the same conditions. . . . It is conceded that corporations are persons within the meaning of the amendment [citing]. But the hazardous character of the business of operating a railway would seem to call for special legislation with respect to railroad corporations, having for its object the protection of their employees as well as the safety of the public. The business of other corporations is not subject to similar dangers to their employees, and no objections, therefore, can be made to the legislation on the ground of its making an unjust discrimination. It meets a particular necessity, and all railroad corporations are, without distinction, made subject to the same liabilities. As said by the court below, it is simply a question of legislative discretion whether the same liabilities shall be applied to carriers by canal and stage coaches and to persons and corporations using steam in manufactories.”

In Tullis v. L. E. & W. R. Co. 175 U. S. 348, 20 Sup. Ct. 136, the court had under consideration the validity of an act of the Indiana legislature providing that railroad companies should be liable for injuries to their employees resulting from the negligence of fellow-servants. The provisions of the act extended to the same class of railroad employees as the act now before us and was attacked in the federal court upon similar grounds, but the court held that it was proper to treat railroads as a class by themselves for the purposes of such regulation, and that it was a valid enactment, reaffirming the doctrine of the Mackey and other cases upholding similar statutes of the states of Iowa and Ohio. See Minneapolis & St. L. R. Co. v. Herrick, 121 U. S. 210, 8 Sup. Ct. 1176; Chicago, K. & W. R. Co. v. Pontius, 157 U. S. 209, 15 Sup. Ct. 585; Peirce v. Van Dusen, 78 Fed. 693, 47 U. S. App. 339.

Recurring to this class of legislation in our state, we find the first enactment was embodied in ch. 173, Laws of 1875, under which railroad companies were made liable “for all damages sustained within this state by any employee, servant or agent of such company while in the line of his duty as such, and which shall have been caused by the carelessness or negligence of any other agent, employee or servant,” and that no contract, receipt, rule, or regulation should exempt the company from such liability. In the case of Ditberner v. C., M. & St. P. R. Co. 47 Wis. 138, 2 N. W. 69, this court held that this statute was not obnoxious to the constitutional provision prohibiting unequal and partial legislation on general subjects. The court expressly rejects the views expressed in the opinion of the Iowa court (Deppe v. C., R. I. & P. R. Co. 36 Iowa, 52) respecting the proper basis of classification, and sustains the law, though it found that it was not restricted in its operation to such injuries as were sustained from'the negligent operation of railway trains. The court there rejected the holding of the Iowa court which so restricted the application of the statute. In the light of this declaration we do not deem it necessary to further consider the Iowa ease as an authoritative construction, of our early .statute.

It is contended that the true basis of classification is the one declared by the court in Lavallee v. St. P., M. & M. R. Co. 40 Minn. 249, 41 N. W. 974, which in effect declares that the reason for treating railroad companies as a separate class for regulations of the nature of those embraced in the law under consideration is based on the peculiar hazards to •employees incident to “the use and operation of railroads,” and that it is restricted to those whose injuries are the “result of such dangers.” Johnson v. St. P. & D. P. Co. 43 Minn. 222, 45 N. W. 156. As we have shown, the ground for classifying railroads separately for the purposes of such legislation is not only to protect the employees against the-peculiar dangers and hazards incident to the operation of the-railroad, but also the security of the public.

The exemption of shop and office employees from the operation of the law seems an appropriate one, because they are-not engaged in that part of the business which exposes therm to the unusual dangers and hazards of the business; nor does-their conduct bear so directly in securing the safety of the-public. It is suggested that this exemption is improper because these employees may be subjected to hazards or perils-equally dangerous to those to which other employees are subjected. Conceding that this may be true, still that would' not invalidate the classification. We do not find the legislative power to classify confined within such narrow limits. As declared by this court in State v. Evans, 130 Wis. 381, 110 N. W. 241:

“Each new exercise of the power of police regulation presents anew to the courts the question of possible relationship-between the distinguishing characteristics of the classes and the object and purposes of the regulation. As to the cogency- or propriety of either the regulations made or of the importance of the distinctions . . . the courts have little concern. Those subjects rest with the legislature, and only when the court ... is compelled to say that no one, in the-exercise of human reason and discretion, could honestly reach a conclusion that distinctions exist having any relation to the-purpose and policy of the legislation can it deny it validity [citing].”

Nor are distinctions between individuals of one class andi of another the criteria merely of a classification.

“The question to be considered, however, is the distinction between the classes as classes, whether there are characteristics which, in a greater degree, persist through the one class than in the other, which justify legal discrimination between them [citing].”

We are of opinion that the office and shop employees are sufficiently distinct in their employment and relation to the conduct of the railroad business to justify the legislature, within the field of its discretion and with regard to public policy, in. exempting them from the operation of the law. Chicago, K. & W. R. Co. v. Pontius, 157 U. S. 209, 15 Sup. Ct. 585; Minneapolis & St. L. R. Co. v. Herrick, 127 U. S. 210, 8 Sup. Ct. 1176; Callahan v. St. Louis M. B. T. R. Co. 170 Mo. 473, 71 S. W. 208; Pittsburgh, C., C. & St. L. R. Co. v. Montgomery, 152 Ind. 1, 49 N. E. 582; Georgia R. & B. R. Co. v. Miller, 90 Ga. 571, 16 S. E. 939; Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96, 19 Sup. Ct. 609; Employers' Liability Cases, 207 U. S. 463, 28 Sup. Ct. 141.

It is contended that the legislature intended to deprive the courts of their judicial functions, as conferred on them by sec. 2, art. VII, of the state constitution, by the provisions of subd. 5 of sec. 1816, as amended, and to confer such functions on juries, as they are constituted by the state constitution. The powers conferred on courts and juries by these constitutional provisions were well defined in the established system of jurisprudence in this country at the time of their adoption. This court interpreted these constitutional provisions as conferring on court and jury those well-defined powers as they existed and had been repeatedly exercised by court and jury under the common law. In Callanan v. Judd, 23 Wis. 343, in speaking of the significance of the phrase “judicial power as to matters of law and equity,” employed in the constitution, as applied to the courts, the court declares :

“In actions at law they had the power of determining questions of law, and were required to submit questions of fact to a jury. When the constitution, therefore, vested in certain courts judicial power in matters at law, this would be construed as vesting such power as the courts, under the English and American system of jurisprudence, had always exercised in that class of actions: It would not import that they were to decide questions of fact, because such was not the judicial power in such actions. And the constitution does not attempt to define judicial power in these matters, but speaks of it as a thing existing and understood.”

See, also, Oatman v. Bond, 15 Wis. 20; Klein v. Valerius, 87 Wis. 54, 51 N. W. 1112; Janesville v. Carpenter, 77 Wis. 288, 46 N. W. 128.

Under the system of law as it then existed it devolved on the court to determine the legal sufficiency of the evidence tending to prove a fact; and when the court had judicially ascertained that tire evidence adduced tended to establish the constituent facts of the matter at issue, it then devolved on the jury to determine whether, upon the evidence, the fact was satisfactorily proven. The powers of the court and jury in the administration of the law in these respects were distinct and well defined at the time of the adoption of our constitution and became vested in the court and jury by its provisions. They cannot be abrogated or modified by legislative action to the extent of impairing, in any degree, the judicial power. Undei* the constitution courts have become vested with the judicial power to determine the questions of the legal sufficiency of the evidence to establish the rights of the parties at issue and to apply the law to the facts when found, and this power cannot be withdrawn from them and conferred on juries.

Did the legislature intend by the provisions of subd. 5 of sec. 1816, as amended, to confer judicial power, vested in the court, on the jury? It declares: “In all cases under this act the question of negligence and contributory negligence shall be for the jury.” In their general sense the words are but a declaration of the law as it exists, namely, that when the court bas found that there is legal evidence tending to show negligence or contributory negligence, it is for the jury to determine from the evidence adduced whether negligence or contributory negligence exists. This interpretation of the provision does not make a change in the law and cannot affect the rights of any person. It is, however, asserted that if the phraseology of this provision be considered in connection with other parts of the law which pertain to the duties of the jury in these cases and the general purpose and object of the act, it is apparent that the legislature intended to confer on juries the judicial power to determine the legal sufficiency of the evidence offered as tending to establish negligence or contributory negligence in the case. It is claimed that this idea is supported by the language of subd. 3, declaring:

“In every action-to recover for such injury the court shall submit to the jury the following questions: First, whether the company, or any officer, agent, servant or employee other than the person injured was guilty of negligence directly contributing to the injury; second, if that question is answered in the affirmative, whether the person injured was guilty of any negligence which directly contributed to the injury; third, if that question is answered in the affirmative, whether the negligence of the party so injured was slighter or greater as a contributing cause to the injury than that of the company, or any officer, agent, servant or employee other than the person so injured; and such other questions as may be necessary.”

We do not find this claim to be well supported, and incline to the view that subd. 5 is merely declaratory of the law as it existed. If, however, it be assumed that the legislature intended to confer judicial power on juries, such as we have shown is inhibited by the constitution and such as would render this subdivision void, still this view of the subdivision does not necessarily render the whole act void, for we are persuaded that such inválid part cannot affect the validity of the other parts of the law. It is a separate and distinct provision, and if removed from the law leaves the other sections a complete and perfect regulation of the subject. It is manifest that the other provisions regulating the rights and remedies of the parties express the fundamental and dominant purpose of the legislature, and that this part, if void, was not the compensation for or the inducement to the enactment of the valid portions. The provisions of subd. 5 cover an independent subject, and can be completely severed and removed from the other provisions without causing any change in them or in their operative effect. Under such circumstances the invalid part of a statute should be dropped out and the valid portions retained and held effective. We, however, conclude that subd. 5 is merely declaratory of the law. No judicial power is therefore conferred on juries, and hence it cannot affect the validity of the other provisions of the law. State ex rel. Cornish v. Tuttle, 53 Wis. 45, 9 N. W. 791; State ex rel. Chandler v. Main, 16 Wis. 398; Quiggle v. Herman, 131 Wis. 379, 111 N. W. 479; Ill. Cent. R. Co. v. McKendree, 203 U. S. 514, 27 Sup. Ct. 153.

The point is made that the provisions of subd. 3 and 4 are arbitrary and discriminatory in their effect, confer special favors on employees, and impose unjust burdens upon and discriminate against the rights of railroad companies, and they therefore are repugnant to the principle of equal protection and due process of law. The rights' and liabilities created by a law fixing liabilities for injuries to servants through the negligence of the railroad company or of co-employees and regulating the amount of recovery are within the legislative power of police regulation, and in the foregoing and other cases have been approved in many respects as appropriate and reasonable. The necessity and reasonableness and the propriety of the regulations prescribed all rest in the legislative judgment to such an extent that we cannot say that such authority has been arbitrarily and unreasonably exercised in the act before us. In Quackenbush v. Wis. & M. R. Co. 62 Wis. 411, 29 N. W. 519, in passing upon the validity of a statute which excluded the defense of contributory negligence to an action for damages occasioned through the want of fencing the railway right of way, this court said:

“It is doubtless true that the provision imposes an absolute liability in such a case. It certainly excludes the defense of contributory negligence where the corporation fails to perform the duty which the statute prescribes in the first instance. This is in the nature of a penalty for the neglect of the corporation to conform to a regulation which the legislature seems to consider essential for the protection of life and property. We think there can be no doubt but such laws fall within the police power. Whether the rule of absolute liability in such a case is founded in wisdom and sound public policy is not for the courts to decide.”

See, also, Quackenbush v. Wis. & M. R. Co. 71 Wis. 472, 37 N. W. 837; Employers’ Liability Cases, 207 U. S. 463, 28 Sup. Ct. 141.

The provisions of subd. 6 are assailed as invalid upon the ground that it attempts to deprive railroads of the right of liberty to contract with their servants for exemption from the liability imposed by the act. This subdivision enacts that:

“No contract or receipt between any employee and a railroad company, no rule or regulation promulgated or adopted by such company, and no contract, rule or regulation in regard to any notice to be given by such employee shall exempt such corporation from the full liability imposed by this act.”

The railroad employers’ liability act of 1875 (ch. 173, Laws of 1875), considered in Ditberner v. C., M. & St. P. R. Co. 47 Wis. 138, 2 N. W. 69, provided that no contract, rule, or regulation between an employee and the company for exempting the company from the liability imposed should be effective as between the parties. These provisions have obtained substantially as part of the law during the periods the various statutes on the subject have been in force. The purpose of these provisions obviously is to prohibit the company from effecting an abrogation of the liabilities created by the statute and to preserve these rights for tire benefit of the employees. The legislature having created a right, it may, within its discretion, make provision against the deprivation and the impairment of the benefits arising under it, if in so doing the interested parties are not deprived of some constitutional right or privilege. The claim that the statute is an interference with the companies’ constitutional right of liberty of contract does not give effect to important limitations, on that right which are fully established in the adjudications. In Frisbie v. U. S. 157 U. S. 160, 15 Sup. Ct. 586, the court states:

“While it may be conceded that, generally speaking, among' the inalienable rights of the citizen is that of the liberty of contract, yet such liberty is not absolute and universal. It is within the undoubted power of government to restrain some individuals from all contracts, as well as all individuals from some contracts. It may deny to all the right to contract for the-purchase or sale of lottery tickets; to the minor the right to assume any obligations, except for the necessaries of existence to the common carrier the power to make any contract releasing himself from negligence, and indeed may restrain all engaged in any employment from any contract in the course of that employment which is against public policy. The possession of this power by government in no manner conflicts, with the proposition that, generally speaking, every citizen has a right freely to contract for the price .oí his labor, services, or property.” See, also, Patterson v. Bark Eudora, 190 U. S. 169, 23 Sup. Ct. 821.

This clearly recognizes the power of the legislature to restrict the right of abrogating by contract the duty or to impair the benefit created by it. To deny the legislature this power would result in a denial to it of power to prohibit persons from contracting against what it declares to be public policy. In the following cases the power of the legislature to restrict the liberty of contracting respecting rights created by it, wbieb in tbeir nature and origin were akin to the rights created by tbe statute before us, was upheld: Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383; Frisbie v. U. S., supra; Smiley v. Kansas, 196 U. S. 447, 25 Sup. Ct. 289; State v. Brown & S. Mfg. Co. 18 R. I. 16, 25 Atl. 246; Knoxville I. Co. v. Harbison, 183 U. S. 13, 22 Sup. Ct. 1; Kilpatrick v. G. T. R. Co. 74 Vt. 288, 52 Atl. 531; McGuire v. C., B. & Q. R. Co. 131 Iowa, 340, 108 N. W. 902.

It is manifest from these adjudications that the object of the law in creating these liabilities is a subject of police regulation, not only for the benefit of employees, but also for the protection of life, person, and property, and therefore it has its reason and foundation in public necessity and policy. The provisions of subd. 6 under this doctrine do not unduly infringe appellant’s right of liberty of contract. The inhibition is a proper regulation to secure the benefits of the rights created, and serves to promote the security of the public by causing a more careful selection of competent servants and an improved enforcement of their duties.

We do not find that the provisions of subd. 8 of the act are involved in the determination- of this case, aside from its bearing on the validity of the other parts of the act. This subdivision seeks to extend the rights and liabilities created by the act to injuries in other states under contracts made in this state with employees. We are persuaded that the subdivision deals with a subject wholly independent of the other parts of the act and severable from them. We discover no grounds for saying that this section was designed as compensation for or inducement to the enactment of the other parts, and that the legislature would not have enacted the other parts without it. Under these circumstances it does not affect the valid parts of the law. Hence we need not pass on the question of its validity in this case and therefore we leave it undecided.

The allegations show that the plaintiff was an employee of tbe defendant and tbat be was not working in a shop or office at tbe time be sustained tbe injury. It is alleged tbat bis injuries were sustained while engaged in tbe line of bis duty and tbat they were caused by tbe negligence of other employees of tbe defendant while in the discharge of their duties. The facts alleged are sufficient to state a cause of action under tbe statutes.

By the Court. — Tbe order appealed from is affirmed.