dissenting. It being admitted *118that the fire which destroyed plaintiff’s property, sometime in July, 1890, had its origin in sparks escaping from defendant’s locomotive, and that the damages sustained amounted to one hundred dollars, the only question in the court below, and the only question raised by this appeal, is, whether section 1511 of the General Statutes comes in conflict with the provisions of the Constitution of this State or that of the United States. The section in question reads as follows: “Every railroad corporation shall be responsible in damages to any person or corporation, whose buildings or other property may be injured by fire communicated by its locomotive engines, or originating within the limits of the right of way of said road, in consequence of the act of any of its authorized agents or employees, except in any case where property shall have been placed on the right of way of such corporation unlawfully, or without its consent; and shall have an insurable interest in the property upon its route for which it may be so held responsible, and may procure insurance thereon in its own behalf.” This section has been construed by this court, in the case of Thompson v. The R. & D. Railroad Company, 24 S. C., 366, as designed to eliminate the element of negligence, whenever a railroad company is sued for damages occasioned by fire communicated by its locomotives or originating upon the right of way, in consequence of the act of any of the authorized agents or employees of such company. So that the practical inquiry here is whether the legislature has the power to pass an act making a railroad company liable for damages done to the property of another, without fault on its part, and while in the lawful use of its own property. This question not having been raised or considered in Thompson’s case, supra, is now presented for the first time, and must now be determined.
The general rule, as I understand it, is that where one person, in the lawful use of his own property, happens to do some injury to the property of another, without fault on his part, he is not liable for the damages resulting from such injury. To make him so liable, it is necessary to show, not only the injury done, but also that it was due to some fault, either wilful or negligent, on the part of the person sought to be charged. This rule has *119been applied to cases in which the damages sustained resulted from fire communicated by sparks from locomotive engines running on railways. Cooley on Torts, 589-592, where that eminent author says: “The gist of the action is negligence.” See, also, McCready v. Railroad Company, 2 Strob., 356, where Wardlaw, J., lays down the same doctrine. In addition to this, it will be found that the legislature has incorporated this principle in its legislation upon the subject of the destruction-of property by fire, for by section 2497 of the General Statutes, as amended by the act of 1886, 19 Stat., 621 (which was the law in force at the time of the destruction of the property of plaintiff by fire), it is expressly declared, that whoever shall maliciously or negligently set fire to any combustible matter, so as thereby the woods, &c., of another be set on fire, shall be liable to indictment, and shall, moreover, be liable to an action for damages; and in the subsequent amendment, by the act of 1891 (20 Stat., 1125), the same element of negligence is retained. It seems, therefore, that the legislature, by the provisions of section 1511 of the General Statutes, has undertaken to apply a much more stringent rule to railroad corporations than would be applied to all other persons under like circumstances.
Now, as .it is properly conceded that corporations, in inquiries like the present, must be regarded as persons, it seems to me that the section in question is a violation of sec. 12, art. I., of the Constitution of this State, as well as of the 14th amendment to the Constitution of the United States. In other words, it is class legislation, which it was one of the objects of those constitutional provisions to prevent. It subjects a railroad corporation to “other restraints or disqualifications” in regard to its personal rights than such as are laid upon others under like circumstances, and it denies to railroad corporations “the equal protection of the laws;” and it tends to deprive a railroad corporation of its property without due process of law, and merely by legislative declaration. For, as we have seen, where fire is communicated to the lands of another by sparks escaping from a locomotive engine of a railroad corporation, while passing over its track lawfully, as it has a right to do under the provisions of its charter, this legislation undertakes *120to make such corporation liable for any damage that may ensue, whether there is any negligence on the part of the corporation or not, while if the same damage is done by any other person to the property of another, he cannot be made liable without proof of some fault or negligence upon the part of the person causing the damage. It is true, that class legislation may sometimes be vindicated as an exercise of the police power; •but I agree with Mr. Justice Pope, that the legislation here under consideration cannot be vindicated as an exercise of the police power; and I need not undertake to add anything to what he has said, in his opinion, upon this subject.
It must b,e remembered that the question here is not as to the power of the legislature to enact laws for the proper regulation of railroad corporations in the exercise of the franchises granted to them, which would be readily conceded. The chapter of the General Statutes, in which the section under consideration is found, affords numerous instances of the exercise of such a power, which never have, and never can be, successfully questioned. But the question here is as to the power of the legislature to enact a law by which the liability of a railroad corporation for an injury done to the property of another, without fault- on .its part, while in the lawful use of its own property, shall be measured by a different rule, and determined by a different principle from that which would be applied to every other person, who, while in the lawful use of his own property, should, without fault on his part, injure the property of another, whereby in the latter case it would be absolutely necessary to show negligence in order to fix liability, while in the former it would not be necessary to show any negligence whatever.
Nor is this a question whether the legislature may not enact a law altering the rules of evidence, by declaring that where the property of a person is injured by fire caused by sparks escaping from a locomotive engine, proof of the injury from such a cause shall constitute prima facie evidence of negligence, and throwing the burden of proof upon the railroad corporation using such locomotive of showing that there was no negligence; but, as I have said, the question, practically, is whether *121one principle of law can be applied to railroad corporations and another to all other persons, under like circumstances.
■ We have no case in this State directly in point; and it must be conceded that the authorities elsewhere are conflicting. It seems to me, however, that the cases which hold legislation, of the character of this now under consideration, as unconstitutional, aré better founded in reason than those which hold the contrary. See Zeigler v. S. & N. Ala. B. B. Company, 58 Ala., 594; County of San Mateo v. Southern Pacific B. B. Company, 13 Fed. Rep., 722; New Orleans, &c., B. B. Company v. Bourgeois, 14 Am. St. Rep., 534 (66 Miss., 3); Oregon, &c., Bailway, &c., Company v. Smalley, 22 Am. St. Rep.. 143; Chicago, &c., B. B. Company v. Minnesota, 134 IT. S., 418.
It seems to me, therefore, that section 1511 of the General Statutes is clearly unconstitutional, and should be so declared.
Judgment affirmed.