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The Green Bag

essential to the problem before the Court. A lengthy discussion of “due

process of law" followed, the Court concluding that the Act did not meet this test, and that the question of con

stitutionality was completely disposed of under this head. “The argument that the risk to an

employee should be borne by the em ployer because it is inherent in the employment may be economically sound, but it is at war with the legal principle that no employer can be compelled to assume a risk which is inseparable

from the work of the employee, and which may exist in spite of a degree of care by the employer far greater than

Hallinger v. Davis, 146 U. S. 314; Mat ter of Kemmler, 136 U. S. 436; Duncan v. Missouri, 152 U. S. 377.) We repeat, however, that this power must be exercised within the constitutional limi

tations which prescribed the law of the land. ‘Due process of law’ is process due according to the law of the land, and the phrase as used in the fourteenth amendment of the federal Constitution

with reference to the power of the states means the general law of the several states as fixed or guaranteed by their

Constitutions." ' Declaring its belief that the advocates of the act were entitled to the beneﬁt

may be exacted by the most drastic

of every possible argument adducible in their favor, the Court then proceeded

law. If it is competent to impose upon an employer, who has omitted no legal duty and has committed no wrong, a

power.

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. . . . “The state has complete control over the remedies which it offers to suitors in its courts even to the point of making them applicable to right or equities already in existence. It may change the common law and the statutes so'as to create duties and liabilities which never existed before. . . . The power of the state to make such changes in methods of procedure and in substantive law is clearly recognized. (Hurtado v. California, 110 U. S. 516; Hayes v. Missouri, 120 U. S. 68; Missouri Pac.

Railway Co. v. Mackey, 127 U. S. 205;

to an extended discussion of the police To quote:

“We cannot understand by what power the legislature can take away from the employer a constitutional guaranty of

which the employee may not also be deprived. If it is beyond the power of the legislature to take from the

representatives of deceased employees their rights of action under the Con stitution, by what measure of power or justice may the legislature assume to

take from the employer the right to have his liability determined in an action at law?

Conceding, as we do, that it

is within the range of proper legislative action to give a workman two remedies for a wrong, when he had but one before, we ask, by what stretch of the police

power is the legislature authorized to give a remedy for no wrong? . . . “When an industry or calling is per se lawful and open to all, and

therefore beyond the prohibitive power ‘The Court thus seems to have recorded itself in favor of the proposition that no employer can be made liable in tort for anything but his own negli gent or malicious act or omission. without depriving him of "due process of law." Such a proposition will hardly command universal assent. —Ed.