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privileges or immunities which upon the , by the negligence or incompetency of a felsame terms shall not equally belong to all low servant, which prevailed in Kansas and citizens.” Railroad corporations are persons in several other states previous to the act within the meaning of this provision of our of 1874, unless he had employed such negliBill of Rights, and the equality clause of gent or incompetent servant without reathe 14th Amendment to the Constitution of sonable inquiry as to his qualifications, or the United States. Charlotte, C. & A. R. had retained him after knowledge of his Co. v. Gibbes, 142 U. S. 386, 35 L. ed. 1051, negligence or incompetency. The rule of law 12 Sup. Ct. Rep. 255; Santa Clara County is conceded where the person injured and v. Southern P. R. Co, 118 U. S. 394, 30 L. the one by whose negligence or incompetened. 118, 6 Sup. Ct. Rep. 1132;Pembina Con- cy the injury is caused are fellow servants sol. Silver Min. & Mill. Co. v. Pennsylvania, in the same common employment, and act125 U, S. 187, 2 Inters. Com. Rep. 24, 31 L. ing under the same immediate direction. ed. 650, 8 Sup. Ct. Rep. 737. The inequali

Assuming that this rule would apty complained of is that corporations, except ply to the case presented but for the law municipal, are made liable for damages of Kansas of 1874, the contention of the caused to one of their servants by the neg. company

is that the law imposes ligence of a coemployee or fellow servant, upon railroad companies a liability not prewithout any negligence on the part of the viously existing, in the enforcement of which employer, while other employers are left their property may be taken, and thus aufree from such liability to their employees. thorizes, in such cases, the taking of propAppellant also contends that the act vio- erty without due process of law, in violation lates the equality clause of the 14th Amend of the 14th Amendment. ment of the Constitution of the United posed hardship and injustice consist in imStates, demanding for every person the equal puting liability to the company where no protection of the laws. The same provision, personal wrong or negligence is chargeable quoted from the Bill of Rights in the Consti- to it or to its directors. But the same hardtution of this state, is found word for word ship and injustice, if there be any, exist in the Bill of Rights of the Constitution when the company, without any wrong or of Iowa. The supreme court of that state, negligence on its part, is charged for inin upholding the employers' liability act of juries to passengers.

The utmost that state, held that the provision mentioned care on its part will not relieve it from in the Bill of Rights in the Constitution of liability, if the passenger injured be himthat state was, in effect, the same as the self free from contributory negligence. The equality clause of the 14th Amendment to law of 1874 extends this doctrine, and fixes the Federal Constitution, and that the em- a like liability upon railroad companies, ployers' liability act did not violate either where injuries are subsequently suffered by Constitution in respect of equality of laws employees, though it may be by the neglior equality of rights secured by each of said gence or incompetency of a fellow servant provisions, in Bucklew v. Central Iowa R. in the same general employment and acting Co. 64 Iowa, 611, 21 N. W. 103. That de under the same immediate direction. That cision rests largely on two decisions made its passage was within the competency of upon the subject of the constitutionality of the legislature we have no doubt. The obthe employers' liability act of Kansas and jection that the law of 1874 deprives the that of Iowa in the Supreme Court of the railroad companies of the equal protection United States. Mackey had recovered a of the laws is even less tenable than the one judgment for $12,000 damages against the considered. It seems to rest upon the theory Missouri Pacific Railway Company for in- that legislation which is special in its charjuries caused by a coemployee of that com acter is necessarily within the constitutionpany, which, on appeal, was aflirmed by the al inhibition; but nothing can be further supreme court of Kansas. From that judg. from the fact. The greater part of all legisment the company appealed to the Supreme lation is special, either in the objects sought Court of the United States, on the ground to be attained by it or in the extent of its that the Kansas statute violated the 14th application. Laws for the improvement of Amendment to the Constitution of the municipalities, the opening and widening of United States. But that court affirmed the particular streets, the introduction of water judgment, holding that the act in no way and gas, and other arrangements for the infringed that amendment. Missouri P. R. safety and convenience of their inhabitants, Co. v. Mackey, 127 U. S. 205, 32 L. ed. 107, and laws for the irrigation and drainage of 8 Sup. Ct. Rep. 1161. Mr. Justice Field, particular lands, for the construction of speaking for the court, there said: “The levees, and the bridging of navigable rivers, company calls the attention of the court to are instances of this kind. .. A law the rule of law exempting from liability an giving to mechanics a lien on buildings conemployer for injuries to employees caused structed or repaired by them, for the amount


of their work, and a law requiring railroad | Valley R. Co. 39 Iowa, 246; Kansas corporations to erect and maintain fences P. R. Co. v. Pearey, 29 Kan. 169, 44 Am. along their roads, separating them from Rep. 630; Missouri P. R. Co. v. Mackey, 33 land of adjoining proprietors so as to keep Kan. 298, 6 Pac. 291; Atty. Gen. v. Chicago cattle off their tracks, are instances of this & N. W. R. Co. 35 Wis. 425; Ditberner v. kind. Such legislation is not obnoxious to Chicago, M. & St. P. R. Co. 47 Wis. 138, 2 the last clause of the 14th Amendment, if N. W. 69. The questions decided by this all persons subject to it are treated alike court in Townsend v. State, 147 Ind. 624, under similar circumstances and conditions 37 L. R. A. 294, 62 Am. St. Rep. 477, 47 in respect both of the privileges conferreil N. E. 19, are analogous to and on the same and liabilities imposed.

But the lines as the cases just cited. hazardous character of the business of oper- Appellant's learned counsel have urged ating a railway would seem to call for spe- upon our attention Gulf, C. & S. F. R. Co. cial legislation with respect to railroad cor- v. Ellis, 165 U. S. 150, 41 L. ed. 666, 17 Sup. porations, having for its object the pro-Ct. Rep. 255, as probably declaring a differtection of their employees, as well as the ent rule. The reference to that case is forsafety of the public.” A like decision was tunate, because, while it does not in the made by the same court, upholding the em- least depart from the rule laid down in the ployers' liability law of Iowa, which has two cases above cited, it lays down some been in force in that state ever since 1862. principles governing the subject, doubtless Minneapolis & St. L. R. Co. v. Herrick, 127 in mind in both of the other judgments of the U. S. 210, 32 L. ed. 109, 8 Sup. Ct. Rep. Federal Supreme Court, but not deemed nec1176. The Iowa statute is expressed in essary in those cases to be fully stated. In fewer words and better language than our the course of the opinion, Mr. Justice Brew

It reads thus: “Every corporation er, speaking for the court, said: “That operating a railway shall be liable for all such corporations may be classified for some damages sustained by any person, includ- purposes is unquestioned. The business in ing employees of such corporation, in con- which they are engaged is of a peculiarly sequence of the neglect of agents, or by any dangerous nature, and the legislature, in the mismanagement of the engineers or other exercise of its police powers, may justly reemployees of the corporation, and in consequire many things to be done by them in quence of the wilful wrongs, whether of order to secure life and property. Fencing commission or omission, of such agents, of railroad tracks, use of safety couplers, engineers, or other employees, when such anıl a multitude of other things easily sugwrongs are in any manner connected with gest themselves. And any classification for the use and operation of any railway on or the imposition of such special duties-duabout which they shall be employed; and ties arising out of the peculiar business in no contract which restricts such liability which they are engaged—is a just classishall be legal or binding." Code Iowa, fication, and not one within the prohibition 1873, & 1307. Herrick was injured in Iowa of the 14th Amendment. . Thus it is freby the negligence of a fellow servant in the quently required that they fence their employ of said railroad company. He sued tracks, and, as a penalty for a failure to ind recovered against the company on the fence, double damages in case of loss are lowa statute in the state court of Minne-inflicted. Missouri P. R. Co. v. Humes, 115 sota, which judgment was affirmed in the U. S. 512, 29 L. ed. 463, 6 Sup. Ct. Rep. supreme court of that state, upholding the 110. But this and all kindred cases proceed constitutionality of the Iowa statute. Her- upon the theory of a special duty resting rick v. Minnea polis & St. L. R. Co. 31 Minn. upon railroad corporations by reason of the 11, 47 Am. Rep. 771, 16 N. W. 413, 32 Min. business in which they are engaged,-a duty +3), 21 N. W. 471.' On appeal to the Su- not resting upon others; a duty which can preme Court of the United States, the con- be enforced by the legislature in any proper stitutionality of the Iowa statute was up. manner; and, whether it enforces it by penheld on the authority of Missouri P. R. Co. alties in the way of fines coming to the V. Mackey, 127 U. S. 205, 32 L. ed. 107, 8 state, or by double damages to a party inSup. Ct. Rep. 1161, as above stated. Some jured, is immaterial. It is all done in the ten or twelve states of the Union have such exercise of the police power of the state, acts on their statute books, and none of and with a view to enforce just and reasonthem have ever been held unconstitutional. able police regulations.

But arbiwhile the following decisions of state su trary selection can never be justified by callpreme courts have held such legislation to ing it classification. The equal protection be constitutional and valid: McAunich demanded by the 14th Amendment forbids v. Mississippi & 11. R. Co. 20 Iowa, 338; this.

It is apparent that the mere Bucklewo v. Central Iowa R. Co. 64 Iowa, fact of classification is not sufficient to re603, 21 N. W. 103; Rose v. Des Moines I lieve a statute from the reach of the equal

ity clause of the 14th Amendment, and that said relief department, he agreed to be in all cases it must appear not only that a bound by its rules and regulations, among classification has been made, but also that which was that each member, on comply. it is one based upon some reasonable ground, ing with its rules, was entitled to receive -some difference which bears a just and stipulated benefits on account of disability proper relation to the attempted classifica incurred by injury received to such member tion,--and is not a mere arbitrary selec- in the service of the company. This agreetion."

ment is all set forth in the appellee's writObjection is made to the validity of the ten application for membership, and signed act because it embraces all corporations ex- by him; and, among the stipulations concept municipal, and that there are other cor tained therein, is the following, namely: porations whose business may be such as not "And I agree that the acceptance of beneto afford any reasonable ground for their fits from the said relief fund for injury or classification, in that their business may not death shall operate as a release of all claims be peculiarly dangerous to life and limb, for damages against said company arising like that of railroads. To this it may be from injury or death which could be made answered, if the act is valid as to railroad by or through me, and that I, or my legal companies, the appellant, a railroad corpo- representatives, will execute such further ration, cannot be permitted to litigate the instrument as may be necessary formally constitutionality of the act as to other cor to evidence such acquittance." And it is porations. Henderson v. State, 137 Ind. further averred that, after receiving the in552, 24 L. R. A. 469, 36 N. E. 257; Switzer- jury complained of, while disabled thereby, lund County v. Reeves, 148 Ind. 467, 46 N. he accepted benefits from said relief departE. 995; C'urrier v. Elliott, 141 Ind. 394, 39 ment to the amount of $385. But it is conN. E. 554. It will be time enough to decide tended by the appellee that by the 5th secits validity as to other corporations when tion of the act we have been considering the any of them come before this court with a contract set up in this answer as a bar is case presenting the question.

made void. The contract set up is shown It is also urged, as an objection to the therein to have been entered into after the validity of the act, that it exempts munic- act took effect and became a law. The secipal corporations from its operation. But tion reads thus: “All contracts made by no reason has been suggested why munic- railroads or other corporations with their ipal corporations should be classed as rail- employees, or rules or regulations adopted road corporations. We have many statutes by any corporation releasing or relieving it applying to railroad corporations that do from liability to any employee having a not apply to municipal corporations. There right of action under the provisions of this is no necessary similarity between them. act, are hereby declared null and void." Nor is the business of municipal corpora- Burns's Rev. Stat. 1894, 8 7087. The baltions so peculiarly hazardous to their em ance of the section makes the whole act apployees as to call for such special legisla-ply to future injuries, and not to past. tion as is called for in case of railroad cor. The validity of this section is assailed on porations to protect their employees. We the grounds that it violates the Bill of therefore conclude that the act does not vio: Rights and the 14th Amendment of the Fedlate the Constitution, either Federal or eral Constitution. What we have said as state.

to the validity of the other parts of the It is next contended that the circuit court act, under these constitutional provisions, erred in sustaining the plaintiff's demurrer is applicable to this section, and hence it to the second paragraph of the defendant's must be held not to infringe them.

It sets up that on the 8th day of And it is further insisted by appellant March, 1893, and prior to the plaintiff's that said section violates § 19 of article 4 injury, he became a member of the voluntary of the state Constitution, in that the subrelief department of the Pennsylvania lines ject of the 5th section is not expressed in west of Pittsburgh, and was such member the title, nor properly connected with the at the time he was injured, and so contin- subject expressed in the title. The prohived long after his said injury; that the bition of contracts releasing corporations management of said department is under from their liability, as prescribed in the act, the charge of said lines west of Pittsburgh; is germane to and properly connected with that said fund is made up of stated contri- that main subject of the act, and hence the butions from said lines and the employees matter of the 5th section thereof need not thereon, and said lines guarantee the fulfil. be expressed in the title. State er rel. ment of all the obligations of said depart. Duensing v. Roby, 142 Ind. 168, 33 L. R. A. ment, and make up and pay all deficiencies 213, 51 Am. St. Rep. 174, 41 N. E. 145, and in the amounts necessary to pay all benefits coses there cited; Warren v. Britton, 84 to its members. In becoming a member of Ind. 14; Bitters v. Fulton County, 81 Ind..


125; Benson v. Christian, 129 Ind. 535, 29 | is not, in any proper or legal sense, a comX. E. 26; Farrell v. State, 45 Ind. 371; promise and settlement of liability under Thomasson v. State, 15 Ind. 449; Reams v. the act. The language of the contract is: State, 23 Ind. 11l; Bank of State v. Neu "And I agree that the acceptance of benefits Albany, 11 Ind. 139; State ex rel. Stingley from said relief fund shall operate as a rev. Sullivan, 74 Ind. 121; Indianapolis v. lease of all claims for damages against said Huegele, 115 Ind. 581, 18 N. E. 172; Hunter company, arising from such injury or v. Burnsville Turnp. Co. 56 Ind. 213; Wal- death,” etc. So, by the express terms of the ker v. Dunham, 17 Ind. 483; McCaslin v. contract, it is a release, and not a comproState, 44 Ind. 151; State ex rel. Terre mise and settlement. The acceptance of benHaute v. Kolsem, 130 Ind. 434, 14 L. R. A. efits shall operate as a release. But what 566, 29 N. E. 595; Shoemaker v. Smith, 37 makes it so? If the antecedent contract Ind. 122; Crawfordsville & S. W. Turnp. Co. was abrogated, the acceptance of benefits v. Fletcher, 104 Ind. 97, 2 N. E. 243; Bar- would have no effect whatever upon the quesnett v. Harshbarger, 105 Ind. 410, 5 N. E. tion of appellant's liability under the act; 718; Hunt v. Lake Shore & M. S. R. Co. because he had a legal and moral right, as 112 Ind. 69, 13 N. E. 263. We therefore before remarked, to demand and receive hold that the 5th section is not invalid, be such benefits. So, if the release takes place, cause it is a matter properly connected with it is not by virtue of the acceptance, but the subject of the act.

it is by the force, vigor, and effect of the Assuming that it is valid, and makes con- antecedent contract. It breathes that eftracts releasing or relieving corporations fect into the acceptance. from liability under the act absolutely void, But it is contended that the contract does appellant's learned counsel contend that not, of itself, operate as a release of liability there is nothing in the agreement set forth under the act. The only difference between in the second paragraph of the answer re- it and a contract of absolute release is that lieving or releasing the company from liabil. the one would be unconditional while the ity for negligence, or from any liability other is conditional. The conclusion seems whatever. They say appellee "elected to ac- unavoidable that the contract here is a concept benefits from the relief fund, and, hav- ditional release of appellant from liabiling done so, he cannot maintain this action ity under the act. The condition upon for damages. That is the essence of his which it is to become absolute is the acceptagreement.” Appellant's counsel further ance of benefits from the relief fund. Secsay in one of their briefs that "the payment tion 5 of the act makes "all contracts and acceptance of benefits under the terms

by any corporation releasing or reof the contract in this relief fund is simply lieving it from liability” under the act "null a compromise and settlement of the claim and void.” of the injured employee against the com- Appellant's learned counsel contend that pany.” Let us suppose that the above an exact copy of this contract was held statement is true; it is certainly the strong valid in the following cases: Johnson v. est and best statement that can be made Philadelphia & R. R. Co. 163 Pa. 127, 29 of appellant's position. What is it that Atl. 854; Ringle v. Pennsylvania R. Co. 164 makes the acceptance of benefits from the Pa. 529, 44 Am. St. Rep. 628, 30 Atl. 492; relief fund a compromise and settlement of Lease v. Pennsylvania Co. 10 Ind. App. 47, appellee's claim? Only one answer can be 37 N. E. 423; Donald v. Chicago, B. & Q. made to this question, and that is that the R. Co. 93 Iowa, 284, 33 L. R. A. 492, 61 antecedent contract alone makes it such. N. W. 971. The first three cases just cited There is no allegation in the answer that in were decided in states not having employers' accepting the benefits appellee made any liability acts forbidding contracts of this agreement or compromise whatever, and kind force at the time the injury sued there is no claim that he did. He simply for occurred. And they proceeded upon accepted that which he had a legal and the sole ground that the contract did not moral right to demand. His con- violate public policy, and therefore they were tributions helped to create the fund, and his upheld. But the Iowa case was decided in injury brought him within the rules and a state having in force at the time such an regulations entitling him to the benefits. I act. But in that case the injury resulted So, even if it was a compromise and settle in death, and the administrator of the dement, it was such wholly and solely by vir- ceased had recovered a judgment against tue of the antecedent contract,--a contract the company for the benefit of the mother executed before the injury occurred; and, of the deceased on account of his death, on that being so, it amounts to nothing more a similar statute to our own. The deceased than an attempt to secure a release of fu- was a member of the relief association very ture liability under the act, call it by what similar to the one here involved. The case soever name we may. But such acceptance decided in 93 Iowa, 284, 33 L. R. A. 492,


and 61 N. W. 971, was a suit by the mother / you from the sound law. It is never urged against the relief association for the $500 at all but when other points fail.' In death benefits provided by the rules of the Walsh v. Fussell, 6 Bing. 169, Lord Chief association. The case was decided against Justice Tindal, in pronouncing judgment, her because of the following stipulation in said: 'It is not contended that the covethe contract signed by the deceased when nant was illegal on the ground of the breach he became a member of the relief associa- of any direct rule of law, or the direct viotion, namely: "Should a member or his lation of any statute, and we think, to hold legal representatives bring suit against it to be void on the ground of its impolicy or the company

.. for damages on ac- inconvenience, we ought to be clearly satiscount of injury or death of such member, fied that the performance of it would be payment of benefits from the relief fund on necessarily attended with injury or inconaccount of the same shall not be made un- venience to the public.'” As was said in til such suit is discontinued; and if suit Brooks v. Cooper, 50 N. J. Eq. 761, 21 L. R. shall proceed to judgment, or shall be A. 617, 35 Am. St. Rep. 793, 26 Atl. 978: compromised, all claims upon the relief fund "Where there is no statutory prohibition, for benefits on account of such injury or the law will not readily pronounce an agreedeath shall be thereby precluded." That ment invalid on the ground of policy or concontract does not seek to avoid the liabil. / venience, but is, on the contrary, inclined ity of the company under the Iowa act, to leave men free to regulate their affairs and hence was a perfectly legal contract. as they think proper.

Now, the inAs before observed, the other cases in- tention of the contract was to contravene volved the question whether such a contract the statute, and this intention is revealed as that now before us was invalid because in the contract. This renders the contract of its violation of public policy. Without vicious and unenforceable.” An emineni either approving or disapproving of the rule author says: “By public policy is intended laid down by the Pennsylvania supreme that principle of the law which holds that court and our own appellate court, yet the no citizen can lawfully do that which has United States circuit court for the district a tendency to injure the public, or which is of Colorado decided the question the other against the public good. Courts will not way in a strong and able opinion in Miller | declare contracts void on grounds of public v. Chicago, B. & Q. R. Co. 65 Fed. 305; and policy, except where the case is free from we think there is a marked distinction in doubt, and where an injury to the public the rule where a contract is charged with interest clearly appears. A doubtful matviolating public policy and where it contra ter of public policy is not sufficient to invenes a positive statutory prohibition, and validate contract.” 2 Beach, Modern especially where the statute provides Law of Contracts, $ 1498, and authorities that the inhibited contract shall be null and there cited. It might be difficult to say void. In Barrett v. Carden, 65 Vt. 431, that such a contract has a tendency to in36 Am. St. Rep. 876, 20 Atl. 530, the su jure, or is against the public good, beyond preme court of Vermont said: “The de. all doubt. On the other hand, the same aufendant insists that the alleged undertak- thor says (8 1447) that "contracts requiring of the plaintiff is contrary to public ing the performance of acts forbidden by policy, and that for this reason the bono statute, or tending to promote such acts. should be declared void. Courts will not are void, even though the statute does not declare contracts void on grounds of public declare them void.” See the authorities policy except in cases free from doubt, and there cited. The same author, in § 1443, prejudice to the public interest must clearly says: "Whatever tends to interfere wit! appear before a court is justified in pro- the beneficial operation of the statute is unnouncing an instrument void on this ac lawful, as against the policy of the law. count. In Richmond v. Dubuque & S. C. R. Whatever tends to obstruct duty, by defeatCo. 26 Iowa, 191, it is said that the power ing the letter or spirit of the law, is also of courts to declare a contract void for i unlawful, and the courts will not enforce being in contravention of sound public pol. any agreement or contract for the benefit of icy is a very delicate and undefined power, one through whose direction or assistance and, like the power to declare a statute un- the law is violated. ... The law atconstitutional, should be exercised only in tempts to close the doors to temptations by cases free from doubt.'

In Rich refusing such parties recognition in the ardson v. Mellish, 2 Bing. 229, Sir James courts.” See authorities there cited. It is Burrough said: 'I protest, as my lord has laid down in 3 Am. & Eng. Enc. Law, p. done, against urging too strongly upon pub- 872, that “where a transaction is forbidden lic policy. It is a very unruly horse, and, by a statute it is void; the grounds of the when once you get astride it, you never proposition are immaterial.” As we have know where it will carry you. It may lead before said, the contract in question is a re


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