The

necessary facilities may occasion an incidental pecuniary loss.2 fact that an order requiring a railroad corporation to operate a certain train may occasion a pecuniary loss so far as that particular train is concerned does not render the order in violation of the constitution of the United States as a taking of property without due process of law or a denial of the equal protection of the laws. In such a case the courts have said that the duty of the railroad company to furnish necessary facilities is coterminous with the powers of the corporation, and that the obligation to discharge that duty must be considered in connection with the corporate business as a whole, and with the character of the service required, and the need for its performance.1 Where a railroad company has been chartered for the purpose of transporting freight and passengers, so long as it continues to exercise its rights under such charter and does not elect to surrender its franchise, it seems clearly established that the performance of the duty for which it was called into existence may be enforced, even though such performance may entail a pecuniary loss. Whenever a railroad company is called upon to perform an absolute duty, the question of expense is not to be considered; but when the duty sought to be enforced is only an incident to the main duty, the question of expense is to be taken into consideration in connection with the public necessities. Further illustrations of the application to corporations of the general rule stated appear in the succeeding paragraph.3

223. Illustrations of Burdensome Regulations on Corporations.It is clear that quite apart from any provisions in their charters the police power of the state extends to requiring railroad corporations to do numerous things involving more or less expense. Accordingly it has been held that a railroad, without any compensation or right to damages, may be compelled to fence its tracks; to construct farm crossings for the use of the owners of adjoining land; to abolish grade crossings; to erect and maintain cattle-guards on demand on it by the owner of land through which its road passes, where such guards

7

20. State v. Fairchild, 224 U. S. 510, 32 S. Ct. 535, 56 U. S. (L. ed.) 863; Jacobson v. Wisconsin, M. & P. R. Co., 71 Minn. 519, 74 N. W. 893, 70 A. S. R. 358, 40 L.R.A. 389.

1. Atlantic Coast Line R. Co. v. North Carolina Corporation Commission, 206 U. S. 1, 27 S. Ct. 585, 51 U. S. (L. ed.) 933, 11 Ann. Cas. 398 and note: Missouri Pac. R. Co. v. Kansas, 216 U. S. 262, 30 S. Ct. 330, 54 U. S. (L. ed.) 472.

2. Seward v. Denver & R. G. R. Co., 17 N. M. 557, 131 Pac. 980, 46 L.R.A. (N.S.) 242.

3. See infra, par. 223.

4. Note: 104 A. S. R. 644. See supra, par. 222.

5. Minneapolis & St. L. Ry. Co. v. Beckwith, 129 U. S. 26, 9 S. Ct. 207, 32 U. S. (L. ed.) 585; Greer v. Downey, 8 Ariz. 164, 71 Pac. 900, 61 L.R.A. 408.

Note: 31 L.R.A. (N.S.) 861.

6. Illinois Cent. R. Co. v. Willenborg, 117 Ill. 203, 7 N. E. 698, 57 Am. Rep. 862.

7. New York & N. E. R. Co. v. Bristol, 151 U. S. 556, 14 S. Ct. 437, 38 U. S. (L. ed.) 269; Houston & T. C. R. Co. v. Dallas, 98 Tex. 396, 84 S. W. 618, 70 L.R.A. 850 and note.

8

are necessary to prevent the wandering of stock; to construct and maintain at grade crossings all such safety devices as may be reasonably necessary for the protection of the traveling public; to stop its trains at particular stations; 10 to construct switches, sidetracks and connections, to enable it to transport cars to and from other lines,11 and to construct lateral lines so as to reach adjacent properties.12 On the same general principles as to expense it has been decided that the fact that the equipment of street cars with air brakes will require a large outlay of money is not necessarily sufficient to nullify the or dinance requiring it.18 To take an illustration of another character, the Supreme Court of the United States has decided that a state statute requiring corporations to produce books and papers in court, and providing no compensation for the time, trouble, and expense imposed upon a corporation in a foreign state or country in collecting and sending the documents to the state demanding them, does not operate, in this respect, to take property for public use without compensation where a certain amount of compensation is allowed by the general law of the state.14 But circumstances may arise and conditions may exist which would render the exercise of police power in instances similar to those cited an unreasonable and unwarranted violation of the rights of property.15 And so it has been held that a railroad company cannot be compelled to erect and maintain crossings at its own expense for persons whose residences are cut off by the railroad from a public highway, when no statute requiring them to make such crossings existed at the time of the construction of the road; 16 that it cannot under penalty of a heavy fine for refusal be required, without a preliminary hearing, to construct and maintain lateral tracks necessary to reach grain elevators which may be erected adjacent to the

8. Birmingham Mineral R. Co. v. Parsons, 100 Ala. 662, 13 So. 602, 46 A. S. R. 92, 27 L.R.A. 263; Yazoo & M. V. R. Co. v. Harrington, 85 Miss. 366, 37 So. 1016, 3 Ann. Cas. 181 and note.

9. Detroit, Ft. W. & B. I. Ry. Co. v. Osborn, 189 U. S. 383, 23 S. Ct. 540, 47 U. S. (L. ed.) 860; State v. St. Paul, etc., R. Co., 98 Minn. 380, 108 N. W. 261, 120 A. S. R. 581, 8 Ann. Cas. 1047 and note, 28 L.R.A. (N.S.) 298 and note. See also infra, par. 344, where these matters are considered in the aspect of the impairment of the obligation of contracts.

10. Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, 206 U. S. 1, 27 S. Ct. 585, 51 U. S. (L.

ed.) 933, 11 Ann. Cas. 398.

11. State v. Fairchild, 224 U. S. 510, 32 S. Ct. 535, 52 U. S. (L. ed.) 863; Atlantic, etc., Ry. Co. v. State, 42 Fla. 358, 29 So. 319, 89 A. S. R. 233.

12. State v. White Oak R. Co., 65 W. Va. 15, 64 S. E. 630, 28 L.R.A. (N.S.) 1013 and note.

13. People v. Detroit United Ry., 134 Mich. 682, 97 N. W. 36, 104 A. S. R. 626, 63 L.R.A. 746.

14. Consolidated Rendering Co. v. Vermont, 207 U. S. 541, 28 S. Ct. 256, 52 U. S. (L. ed.) 327, 12 Ann. Cas. 658.

15. See infra, par. 226.

16. People v. Detroit, G. H. & M. Ry. Co., 79 Mich. 471, 44 N. W. 934, 7 L.R.A. 717.

right of way; 17 and that the attempt by the state to compel a railroad company to construct and operate a spur track to a private mill may be void, as a taking of property for private use without due process of law 18 As also amounting to the taking of property without due process of law it has been held that a statute making railroad companies liable for all expenses of the coroner and his inquest, and the burial of all persons who may die on the cars or who may be killed by collision or other accident occurring to such cars or otherwise, is unconstitutional so far as it attempts to make railroad companies liable in cases where they have violated no law or been guilty of no negligence.19 For the same reason a statute requiring the interchange of cars over connecting tracks between lines of railways crossing each other may amount to a taking of property without due process of law, and hence such interchange cannot be required where there is no adequate protection from loss or undue detention of cars, nor provision for securing due compensation for their use.20

224. Extent of Liability Imposed.-Closely akin to the inquiry as to whether the state in the exercise of its police power may impose expenses and burdens without infringing the constitutional guaranty as to due process of law,1 is the question as to the extent to which liabilities may be imposed for injuries to persons or property either for negligent failure to comply with a police regulation, or for all consequences irrespective of negligence. The immunity from liability for negligence either of oneself or one's agent and servants is not a constitutional right, and it may be taken away without deprivation of due process of law. Thus statutes authorizing recovery against telegraph companies for mental anguish resulting directly or proximately from or occasioned by the failure or negligence of their operators, servants, or employees in receiving, copying, transmitting, or delivering messages, have been upheld and are not usually considered invalid as depriving them of property without due process of

17. Missouri Pacific Ry. Co. v. Nebraska, 217 U. S. 196, 30 S. Ct. 461, 54 U. S. (L. ed.) 727, 18 Ann. Cas. 989.

The places and persons interested, the volume of business to be affected, and the saving in time and expense to the shipper, as against the cost and loss to the carrier, must be considered in determining the reasonableness of, and the public necessity for, an order of a state railroad commission requiring trackage connections at certain points between competing railway companies for the interchange of business, which is attached as taking property without due process of law. State v. Fair

child, 224 U. S. 510, 32 S. Ct. 535, 56 U. S. (L. ed.) 863.

18. Northern Pac. R. Co. v. Washington Railroad Commission, 58 Wash. 360, 108 Pac. 938, 28 L.R.A.(N.S.) 1021.

19. Ohio & M. Ry. Co. v. Lackey, 78 Ill. 55, 20 Am. Rep. 259.

20. Louisville & N. R. Co. v. Central Stock Yards Co., 212 U. S. 132, 29 S. Ct. 246, 53 U. S. (L. ed.) 441.

1. See supra, par. 221. 2. As to the imposition of liability without fault, see infra, par. 225.

3. Vindicator Consolidated Gold Min. Co. v. Firstbrook, 36 Colo. 498, 86 Pac. 313, 10 Ann. Cas. 1108.

law. In some jurisdictions statutes rendering an employer liable for damages resulting from injuries to an employee caused by the negligence of a coemployee, in the same manner and to the same extent as if the negligence causing the injury or death was that of the employer have been upheld as appropriate police regulations and as not depriving the employer of his property without due process of law. In other words, for the purpose of providing for the safety and protection of employees in the service of a common employer, the legislature in these jurisdictions has authority to abrogate the exception to the general rule of respondeat superior in favor of the employer, and make him liable to one of his employees for damages caused by the negligence of another employee, while acting within the scope of his employment, regardless of the fact that such employees are fellow servants. On the other hand, it has been held that an attempt to make an employer liable for injury to an employee, arising out of a necessary risk or danger of the employment, or one inherent in the nature thereof, without fault on the part of the employer, unless it was caused by the serious and wilful misconduct of the employee, is an unconstitutional taking of liberty and property without due process of law 6

225. Liability with or without Fault.-It may be laid down as a general proposition that absolute liability, without fault, cannot ordinarily be imposed upon a citizen. Under this principle it has been held in several jurisdictions that a statute making a railroad company liable for stock killed whether the company was negligent or not, and fixing the damages according to a schedule, deprives the company of property without due process of law, especially where the railroad company is not bound by its charter or principles of the common law to fence its road for the protection of other persons' domestic animals. Such a statute it is said cannot be sustained in itself as a valid police. regulation. Where, however, there are other statutes enacted under

4. Simmons v. Western Union Tel. Co., 63 S. C. 425, 41 S. E. 521, 57 L.R.A. 607; Nitka v. Western Union Tel. Co., 149 Wis. 106, 135 N. W. 492, Ann. Cas. 1913C 863, 49 L.R.A.C 337 and note.

5. Vindicator Consolidated Gold Min. Co. v. Firstbrook, 36 Colo. 498, 86 Pac. 313, 10 Ann. Cas. 1108.

6. Ives v. South Buffalo R. Co., 201 N. Y. 271, 91 N. E. 431, Ann. Cas. 1912B 156, 34 L.R.A. (N.S.) 162 and

note.

7. Daugherty v. Thomas 174 Mich. 371, 140 N. W. 615, 45 L.R.A.(N.S.) 699; Ives v. South Buffalo R. Co., 201 N. Y. 271, 94 N. E. 431, Ann. Cas.

1912B 156, 34 L.R.A.(N.S.) 162; Wadsworth v. Union Pac. Ry. Co., 18 Colo. 600, 33 Pac. 515, 36 A. S. R. 309, 23 L.R.A. 812; Birmingham Mineral R. Co. v. Parsons 100 Ala. 662, 13 So. 602, 46 A. S. R. 92, 27 L.R.A. 263; Kelly v. Minneapolis City, 57 Minn. 294, 59 N. W. 304, 47 A. S. R. 605, 26 L.R.A. 92; Jensen v. Union Pac. Ry. Co., 6 Utah, 253, 21 Pac. 994, 4 L.R.A. 724 and note; Oregon Ry., etc., Co. Smalley, 1 Wash. 206, 23 Pac. 1008, 22 A. S. R. 143 and note; Jolliffe v. Brown, 14 Wash. 155, 44 Pac. 149, 53 A. S. R. 868. See CARRIERS, vol. 4. p. 707 et seq., as to injuries or damage. suffered without fault or negligence..

the police power compelling railroad corporations to inclose their roads with fences having gates at crossings and cattle guards, the omission to erect and maintain them in the face of the law may amount to negligence, and if injuries to property in consequence occur statutory liability for damages may then be properly imposed. Accordingly it has been held that a statute making a railroad liable in double damages for stock killed in consequence of its neglect to erect a fence is constitutional; as is also a statute making corporations responsible in damages for property injured by fire communicated directly or indirectly by locomotive engines in use upon railroads, even where there is no proof of negligence 10 or fault on the part of the corporation.11 The same rule has been applied where the corporation is given by statute an insurable interest in the property exposed to such dangers, that it may thereby protect itself against its possible loss by fire so caused.12 Similarly the state may impose the general liability of an insurer on railroad companies for all damages sustained by passengers while being transported over the road.18 It has been decided that the taking of the property of an initial carrier is not in violation of the constitution, where it is taken to pay the debt of an independent connecting carrier whose negligence may have been the sole cause of a loss, under a statute by which an interstate carrier voluntarily receiving property for transportation from a point in one state to a point in another state is made liable to the holder of the bill of lading for a loss anywhere en route; and this in spite of any agreement. or stipulation to the contrary with a right of recovery over against the carrier actually causing the loss,14

carriers; and as to the general rule relating to liability, see NEGLIGENCE.

8. Missouri Pacific Ry. Co. v. Humes, 115 U. S. 512, 6 S. Ct. 110, 29 U. S. (L. ed.) 463; Minneapolis & St. L. Ry. Co. v. Beckwith, 129 U. S. 26, 9 S. Ct. 207, 32 U. S. (L. ed.) 585; Engebretsen v. Gay, 158 Cal. 30, 109 Pac. 880, Ann. Cas. 1912A 690, 28 L.R.A. (N.S.) 1062.

Note: Ann. Cas. 1912C 703. See NEGLIGENCE for the general principles as to liability therefor.

9. Humes v. Missouri Pac. Ry. Co., 82 Mo. 221, 52 Am. Rep. 369.

10. Union Pac. Ry. Co. v. De Busk, 12 Colo. 294, 20 Pac. 752, 13 A. S. R. 221, 3 L.R.A. 350; Grissell v. Housatonic R. Co., 54 Conn. 447, 9 Atl. 137, 1 A. S. R. 138; Mathews v. St. Louis & S. F. Ry. Co., 121 Mo. 298, 24 S. W. 591, 25 L.R.A. 161 and note [affirmed by the Supreme Court of the

United States in 165 U. S. 1, 17 S. Ct. 243, 41 U. S. (L. ed.) 611]; Campbell v. Missouri Pacific Ry. Co., 121 Mo. 340, 25 S. W. 936, 42 A. S. R. 530, 25 L.R.A. 175; Mobile Ins. Co. v. Columbia & G. R. Co., 41 S. C. 408, 19 S. E. 858, 44 A. S. R. 725 and note; Brown v. Carolina Midland Ry., 67 S. C. 481, 46 S. E. 283, 100 A. S. R. 756 and note.

11. East Grand Forks v. Luck, 97 Minn. 373, 107 N. W. 393, 7 Ann. Cas. 1015, 6 L.R.A. (N.S.) 198 and note.

12. McCandless v. Richmond & D. R. Co., 38 S. C. 103, 16 S. E. 429, 18 L.R.A. 440.

13. Chicago, R. I. & P. Ry. Co. v. Eaton, 183 U. S. 589, 22 S. Ct. 228, 46 U. S. (L. ed.) 341.

14. Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 31 S. Ct. 164, 55 U. S. (L. ed.) 167, 31 L.R.A. (N.S.) 7 and note; Galveston H.