or injuring upon their right-of-way, horses, cattle, etc., by running over them. Such cases cannot be analogous for horses and cattle killed upon a right-of-way are trespassers, they are there wrongfully, and to make the company absolutely liable for the killing of trespassing animals, when there was no negligence on the part of the company or its servants, would be unreasonable and unjust. A number of cases are cited to show that the railroad is liable for the killing of animals when the law requires them to fence their right-of-way and they have failed to do so.

Even had the courts held otherwise I cannot see the applicability of such cases to the case at bar. Neither can I see any good reason in the argument advanced in favor of the decision on page 440, namely:

"If the argument in support of this statute is sound, we do not see why it cannot logically be carried much further. Poverty and misfortune from every cause are detrimental to the state. It would probably conduce to the welfare of all concerned if there could be a more equal distribution of wealth. Many persons have much more property than they can use to advantage and many more find it impossible to get the means for a comfortable existence. If the Legislature can say to an employer, 'You must compensate your employe for an injury not caused by you or by your fault,' why can it not go further and say to the man of wealth, 'You have more property than you need, and your neighbor is so poor that he can barely subsist; in the interests of natural justice you must divide with your neighbor, so that he and his dependents shall not become a charge upon the state'?"

This argument does not apply and such an enactment would be unconstitutional for the same reason that the law making the railroad company liable in any event for a death on its trains was unconstitutional. It cannot be in justice said to the man of wealth: "You have more property than you need, and your neighbor is so poor that he can barely subsist; in the interests of natural justice you must divide with your neighbor", for the reason that the man of wealth is under no obligation to support his poorer neighbor. You can tax him under a uniform system of taxation for the support of the poor, but he being under no obligation to support the poor generally, cannot be made to do so directly; but if he had a poor father, or mother, or a son, or a daughter, or any near relative that he is naturally under obliga

tions to, a law compelling him to take care of such relatives and contribute to their support would be upheld.

Is there not almost as great an obligation existing between employer and employe, while the relation exists, and upon this same theory could not the law be sustained? They are co-adventurers; the employer furnishes the money, the employe the labor and the skill and takes all the risk. From the combination of the employer's wealth and the employe's skill comes the finished product, the profits on which go exclusively to the employer, the employe receiving only his daily wage. The law of compensation is not asking charity; it demands justice. And justice demands that the employer should assume the risk to be paid ultimately by the consumer.

Again on page 440 of the opinion:

"If it is competent to impose upon an employer, who has omitted no legal duty and has committed no wrong, a liability based solely upon a legislative fiat that his business is inherently dangerous, it is equally competent to visit upon him a special tax for the support of hospitals and other charitable institutions, upon the theory that they are devoted largely to the alleviation of ills primarily due to his business. In its final and simple analysis that is taking the property of A. and giving it to B., and that cannot be done under our constitutions. Practical and simple illustrations of the extent to which this theory of liability might be carried could be multiplied ad infinitum, and many will readily occur to the thoughtful reader."

This may be true but none of the illustrations offered by the court give any light to me upon the subject. Indeed, the cases offered by the plaintiff in support of the law, and rejected by the court, seem more nearly analogous; for instance, the admiralty cases of The Osceola, 189 U. S. 159; The City of Alexandria, (D. C.) 17 Fed. Rep. 390, and the case of Scarff v. Metcalf, 107 N. Y. 211. In relation to these cases the court says:

"They seem to us equally inapplicable as authorities for the proposition that the law recognizes liability without fault. It is common knowledge that the contracts and services of seamen are exceptional in character. A seaman engages for the voyage. He is subject to physical discipline, and exposed to hardships and dangers peculiar to the sea. He is, in effect, a co-adventurer with the master, and shares in the risks of shipwreck and capture, often LOSING HIS WAGES BY CASUALTIES WHICH DO NOT AFFECT WORKMEN ON LAND. FOR THESE AND MANY OTHER OBVIOUS REASONS THE MARITIME LAW HAS WISELY AND BENEVOLENTLY BUILT UP PECULIAR RIGHTS

AND PRIVILEGES for the protection of the seaman which are not cognizable in the common law. When he is sick or injured he is entitled to be cared for at the expense of the ship, and, for the failure of the master to perform his duty in this regard, the ship or the owner is liable. That is a right given to the seaman, and a duty enjoined upon the master, by the plainest dictates of justice, which arises out of the necessities of the case; and, because of the reason of the rule, the right and duty cease when the contract has terminated and the seaman has been returned to the port of shipment or discharged, or has been furnished with means to do so. But, beyond this duty on the part of the master or owner, there seems to be no liability whatever for injuries sustained by the seaman in the course of his work.''

The contract and service of seamen are exceptional in character. The seaman engages for a voyage, it is true, for when he starts out on the voyage it is natural that he should want to return. He would not want to be turned loose in mid-ocean and the master would want to make sure of sailors sufficient in number to bring the ship home; hence, he engages for the voyage. He is subject to physical discipline, for there is no other discipline on the ocean; he is out of the reach of courts and physical discipline may be necessary. The service demands all this for the safety of the ship, the cargo, and the lives of the passengers. But compare in parallel columns what the court says about protection to the seaman and the employe on land, and the remedy for each, as follows:

Workman

(Page 439)

66 'There can be no doubt as to the theory of this law. It is based upon the proposition that the inherent risks of an employment should in justice be placed upon the shoulders of the employer, who can protect himself against loss by insurance and by such addition to the price of his wares as to cast the burden ultimately upon the consumer; that indemnity to an injured employe should be as much a charge upon the business as the cost of replacing or repairing disabled or defective machinery, appliances, or tools; that,

Seaman

(Page 446)

"It is common knowledge that the contracts and services of seamen are exceptional in character. A seaman engages for the voyage. He is subject to physical discipline, and exposed to hardships and dangers peculiar to the sea. He is, in effect, a co-adventurer with the master, and shares in the risks of shipwreck and capture, often losing his wages by casualties which do not affect the workman on land."

under our present system, the loss falls immediately upon the employe who is almost invariably unable to bear it, and ultimately upon the community which is taxed for the support of the indigent; and that our present system is uncertain, unscientific, and wasteful, and fosters a spirit of antagonism between employer and employe which it is to the interests of the state to remove. We have already admitted the strength of this appeal to a recognized and widely prevalent sentiment."'

Remedy

"But we think it is an appeal which must be made to the people, and not to the courts."'

Remedy

"For these and many other obvious reasons the maritime law has wisely and benevolently built up peculiar rights and privileges for the protection of the seamen which are not cognizable in the common law. When he is sick or injured he is entitled to be cared for at the expense of the ship, and, for failure of the master to perform his duty in this regard, the ship or the owner is liable. That is a right given to the seaman, and a duty enjoined upon the master, by the plainest dictates of justice, which arise out of the necessities of the case. 99

According to the foregoing the employe on land needs the protection of the law as much as the seaman, and greater reasons are given for legislative action in his behalf. The public is interested in a general way in behalf of the seaman, while the sentiment in favor of legislation protecting the employe is widely prevalent and favored by the State, in whose interest it is to remove the antagonism fostered by the present system between employer and employe. But legislation making the master liable, when without fault, for sickness and care of the seaman, “is a wise and benevolent right given to the seaman and a duty en

joined upon the master by the plainest dictates of justice"; while the law making the employer liable when without fault for injury to an employe, is "taking his property without due process of law". From whence does the power come to make the master of the ship liable for the care and sickness of seamen, and the act of Congress requiring the master of the ship to contribute monthly for each sailor employed for the maintenance of a marine hospital? It does not come from the Constitution but from Congress and the courts, and cannot the same power that requires the master of the ship to care for the sailor in sickness, that requires him to contribute to the support of a marine hospital, also require him to respond in damages for injuries resulting from unavoidable accidents? "Seamen have been designated as wards of admiralty, in need of the protection of the courts because peculiarly exposed to the wiles of sharpers and unable to take care of themselves." 1 Parson's Ship and Admiralty, 32. "Every court should watch with jealousy any encroachment upon the rights of seamen, because they are unprotected and need counsel, because they are thoughtless and require indulgence, because they are credulous and complying, and are easily overreached," as said by Mr. Justice Story in Harden v. Gordon, 2 Mason 541. And as said by Mr. Justice Thompson, in Cadmus v. Mathews, 2 Paine 229: "Due weight ought to be given to the character and situation of this class of men.

The Constitution does not make the seaman an exception, and the decisions referred to show how far legislation and the courts may go when the exigencies of the case demand. The seaman is exposed to hardships and dangers peculiar to the sea; the laborer is exposed to the hardships and dangers peculiar to his employment. The seaman is, in effect, a co-adventurer with the master and shares in the risks of shipwreck. The employe in the industrial institution likewise is a co-adventurer with the master, but he does not share the risks of life and limb with the master, he assumes them all himself. The sailor is liable to physical discipline, a rule that is not necessary for the employe for he is within the reach of the courts. The sailor cannot break his contract; neither can the employe, without great inconvenience and sometimes suffering on the part of his loved ones, who are de