I concur in the opinion of Judge WERNER for reversal of the judgment appealed from. I concede that the legislature may abolish the rule of fellow-servant as a defense to an action by employee against the employer. *Page 318 Indeed, we have decided that in upholding the so-called Barnes Act. (Schradin v. N.Y.C. H.R.R.R. Co., 194 N.Y. 534.) I concede that the legislature may also abolish as a defense the rule of assumption of risk and that of contributory negligence unless the accident proceeds from the willful act of the employee. I concede that in a work, occupation or business of such a nature that the legislature might prohibit its pursuit or exercise altogether, the legislature may prescribe terms under which it may be carried on. Plainly, this litigation does not present such a case. The legislature could not revoke the franchise it had previously given to the defendant to operate a railroad. (People v. O'Brien, 111 N.Y. 1.) I am not prepared to deny that where the effects of the work, even though prosecuted carefully, go beyond a person's own property and injure third persons in no way connected therewith, the person for whose account the work is done may be held liable for injuries occasioned thereby. I also concede the most plenary power in the legislature to prescribe all reasonable rules for the conduct of the work which may conduce to the safety and health of persons employed therein. But I do deny that a person employed in a lawful vocation, the effects of which are confined to his own premises, can be made indemnify another for injury received in the work unless he has been in some respect at fault. I am not impressed with the argument that "the common law imposed upon the employee entire responsibility for injuries arising out of the necessary risks or dangers of the employment. The statute before us merely shifts such liability upon the employer." It is the physical law of nature, not of government, that imposes upon one meeting with an injury, the suffering occasioned thereby. Human law cannot change that. All it can do is to require pecuniary indemnity to the party injured, and I know of no principle on which one can be compelled to indemnify another for loss unless it is based upon contractual obligation or fault. It might as well be argued in support of a law requiring a man to pay his neighbor's *Page 319 debts, that the common law requires each man to pay his own debts, and the statute in question was a mere modification of the common law so as to require each to pay his neighbor's debts. It is urged that the legislation before us can be upheld on the decision of the Supreme Court of the United States in NobleState Bank v. Haskell (219 U.S. 104). In support of the claim there is cited from the opinion the following: "It may be said in a general way that the police power extends to all the great public needs. (Camfield v. United States, 167 U.S. 518.) It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare." (P. 111.) It is possible that the doctrine of these two sentences would justify the statute before us and possibly any legislation, if only supported by a sufficient popular demand, but it is both unfair and unsafe to excerpt fragmentary sentences from the opinion of a court and interpret them apart from the context of the whole opinion. However that may be, the decision in theNoble Bank case is not controlling upon this court in the construction of the Constitution of our own state, and I am not disposed to accept it, at least, until it has received the approval of a majority of the court. I concur with Judge WERNER that the act, as applicable to the case before us, cannot be considered as an exercise of the power of the state to regulate corporations. The act is general, not confined to corporations, and even if it were, I think its effect would be a deprivation of property not authorized by the reserved power to regulate.
As to corporations hereafter formed, the question is very different. The franchise to be a corporation is not one inherent in the citizen, but proceeds solely from the bounty of the legislature, and for that reason the legislature may dictate the terms on which it will be granted and require the acceptance of the provisions of this act as a condition of incorporation. (Purdy v. Erie R.R. Co., 162 N.Y. 42; Minor v. Erie R.R.Co., 171 N.Y. 566; People *Page 320 ex rel. Schurz v. Cook, 110 N.Y. 443; S.C., 148 U.S. 397;Chicago, R.I. Pac. R. Co. v. Zernecke, 183 U.S. 582.) Even in the case of existing corporations, the corporate existence of all those created since the Constitution of 1846 may be revoked by the legislature, though the property rights of such corporations and their special franchises other than the one to be a corporation cannot be impaired. (Const. art. VIII, § 1;Lord v. Equitable Life Assur. Socy., 194 N.Y. 212.) The property and franchise would have to be managed by the owners as partners or tenants in common, and the legislature might require as a condition of the continued right to be a corporation that before the expiration of a reasonable period the provisions of the statute should be accepted also by them. They are in the condition of a tenant at will who, when the landlord raises the rent, must either comply with his terms or, after the expiration of a reasonable time prescribed by a notice to quit, surrender his rights under the lease. But individual citizens, following the ordinary vocations of life, asking no favors of the government, whether a corporate or other franchise, but only the protection of life and property, which every government owes to its citizens, and guilty of no fault, cannot be compelled to contribute to the indemnity of other citizens who, by misfortune or the fault of themselves or others, have suffered injuries, except by the exercise of the power of taxation imposed on all, at least all of the same class, for the maintenance of public charity. Of course, I am not now referring to obligations springing from domestic relations.
CULLEN, Ch. J., GRAY, HAIGHT, WILLARD BARTLETT, CHASE and COLLIN, JJ., concur with WERNER, J.; CULLEN, Ch. J, also files an opinion, with whom WILLARD BARTLETT, J., concurs.
Judgment reversed, etc. *Page 321