Dissenting Opinion by
Judge Barker.I find myself unable to concur in the opinion affirming the judgment in this case, and the duty I owe myself, as well as that due the appellant, constrains me, much against my natural inclination, to state the reasons for dissenting from the conclusion reached by a majority of my Brethren.
On March 2,1905, a carpenter’s force of the Louisville & Nashville Railroad Company were construct-' ing coal chutes near, but not upon, the tracks or roadway of the railroad company at the mines of the Ingle Coal Company, at or near Howell, Ind. The force consisted of seven laborers, including the foreman, one W. C. Shrode, and appellee, Melton. In raising, with an ordinary pulley, block, and tackle, a bent of timber weighing about 1,000 pounds from a partly horizontal to an upright position, the bent fell by reason of a latent defect in the welding of one of the links of a chain with which one of the *293pulley blocks was temporarily attached to the framed-work. In falling the bent fell upon Melton and produced a concussion of his spine, resulting in partial paralysis of his lower extremities. For this injury Melton brought his action against th'e railroad company in Hopkins circuit court, and elected to proceed under the statute of the State of Indiana commonly known as the “Employer’s Liability Act.” A trial of the action resulted in a verdict for compensatory damáges in the sum of $22,000.
As Melton’s cause of action is rested upon the Indiana statute regulating the liability of corporations for injuries received by their einployes, the first question with which we are confronted is whether or not that act, as construed by the majority opinion, is constitutional, or whether, on the contrary; it is inimical to that provision in the fourteenth amendment oi the federal Constitution, which guarantees to all the equal protection of the law, or, as has been said, the protection of equal laws. As the act in question is fully set cut in the opinion of the court, it is not necessary to incorporate any part of it heie. It is deemed sufficient to say that it prescribes a different rule of liability for those employers who may be brought within its purview from that imposed by the laws of Indiana upon other employers for injuries oceuring to their employes, and unless it can be differentiated by a reasonable classification from those laws it must be held violative of the federal Constitution. ■
It is earnestly contended by counsel for áppellant that the Indiana court of last resort- has construed this act to be applicable only to those employers operating railroads, and, further, that it has limited its application to injuries occurring to employes *294engaged in the hazard of the actual operation of the railroad at the time they were hurt Whether this be so, or not, I shall not now investigate. This court has enforced the act as applying to injuries occurring to all railroad employes, whether, they be at the time engaged in the active .operation of the railroad as such, or whether they are engaged in what may be termed collateral occupations, among which may be included all those occupations which are merely auxiliary to the active operation of the railroad and not subject to the extreme hazard which exists in the active carrying forward of its operation. This conclusion makes it necessary to inquire whether the act, as construed, is or not inimical to the equality clause of the federal Constitution.
As said before, it is not permissible, under the federal Constitution, to impose arbitrarily upon one class burdens which are not imposed upon the community in general; nor may a Legislature arbitrarily impose a liability upon one class of employers which is not imposed upon others. Undoubtedly the State may regulate the liability of employers to their employes if the classification for regulation be based upon just and reasonable principles; but it may not arbitrarily select one class, whose liability is to be ascertained by rules more stringent than apply to employers generally doing a similar business. This principle has nowhere been more clearly and forcibly expressed than by the Supreme Court of the United States in G., C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666, where the question we have in hand is discussed. In the opinion it is said: “But it is said that it is not within the scope of the fourteenth amendment to withhold from states the power of classification, and that if the law deals *295alike with all of a certain class it is not obnoxious to the charge of a denial of equal protection. While, as a general proposition, this is undeniably true (citing many cases), yet it is equally true that such classification cannot be made arbitrarily. The State may not say that all white men shall be subjected to the payment of the attorney’s fees of parties successfully suing them, and all black men not. It may not say that all men beyond a certain age shall be alone thus subjected, or all men possessed of a certain wealth. These are distinctions which do not furnish any proper basis for the attempted classification. That must always rest upon some di :erence which bears a reasonable and just relation to the act in' respect to which the classification is proposed, and can never be made arbitrarily and. without any such basis. * * '* But arbitrary selection can never be justified by calling it classification. The equal protection demanded by the fourteenth amendment forbids this. No language is more worthy of frequent and thoughtful consideration than these- words of Mr. Justice Matthews, speaking for this court in Yick Wo v. Hopkins, 118 U. S. 356, 369, 6 Sup. Ct. 1064, 30 L. Ed. 220: ‘When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development., we are constrained to conclude that they do not leave room for the p-lay and action of purely personal and arbitrary power.’ The first official action of this nation declared the foundation of government in these words: ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness.’ *296While such declaration of principles may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, and'while in all cases reference must be. had to the organic law of the nation for such limits, yet the latter is but the body and the letter of which the former is the thought and the spirit, and it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence. No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government. * * * It is apparent that the mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the fourteenth amendment, and that in all cases it must appear, not only that a classification has been made, but also that it is one based upon some reasonable ground — some difference which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection. Tested by these principles, the statute in controversy cannot be sustained. ’ ’
Upon the same subject the Supreme Court, in Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679, said: “The difficulty is not met by saying that, generally speaking, the State, when enacting laws, may in its discretion make a classification of persons, firms, corporations, and associations in order to subserve public objects; for this court has held that classification ‘must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis. * * * But *297arbitrary selection can never be justified by calling it classification. The equal protection demanded by tbe fourteenth amendment forbids this. * * * It is apparent that the mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the fourteenth amendment, and that in all cases it must appear,- not only that a classification has been made, but also that it is one based upon some reasonable ground — difference which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection.’ ” To the same effect are dotting v. Kansas City Stockyards Company, etc., 183 U. S. 79, 22 Sup. Ct. 30, 46 L. Ed. 92, Ballard v. Mississippi Cotton Oil Company, 81 Miss. 507, 34 South. 533, 62 L. R. A. 407, 95 Am. St. Rep. 467, and Cooley on Constitutional Limitations (7th Ed.) pp. 560-563.
In view of the foregoing authority, the question recurs: Does the statute under discussion, as construed in this case, afford a reasonable or just classification when it establishes one rule of liability for injuries occurring.to all railroad employes, without regard to whether they are engaged in the hazard of railroad operation, leaving the liability of all other employers subject to a less stringent rule of liability? It is a matter of common knowledge that only a small pe-r cent, of a railroad corporation’s employes are engaged in its active operation. Outside of the men operating the railroad, there is a very large class of employes who are engaged in mere clerical work, and who have no more to do with the actual operation of the railroad as such than the clerks and bookkeepers of any mercantile establishment. Railroads employ many lawyers, surgeons, and clerks. Some of them keep large forces of men engaged in cutting cross-*298ties in the forests, or in the breaking of stone for ballast, and in mining coal for the nse of the engines. All are engaged in precisely similar business to that carried forward by. other employers, who are confessedly not within the purview of the act. The appellee himself, at the time he was hurt, was engaged as a carpenter in building a coal chute or tipple at the Ingle coal mines, near or on the railroads right of way. It does not appear whether this chute was for the benefit of the railroad or the mining corporation; but I shall assume, in order to eliminate any question of fact, that the chute was being constructed for the purpose of coaling the railroad’s engines. Nc v, let us suppose that the coal company had had a force of carpenters building coal chutes by the side of those being built by appellee, for the purpose of putting its coal on the cars for shipment, and that a similar accident had happened at the same time to one of its employes. The employe of the coal mining corporation, if he had sued, would have been forced to ground his action upon the common law prevailing in Indiana, while, if the majority opinion be sound, appellee could maintain his action under the statute. Assuming, for the purpose of the argument, that the two accidents were caused by identically the same mishap, we would have different rules regulating the remedy of the injured persons, although the occupation of each was precisely the same. Such illustrations could be multiplied indefinitely; but they would throw no additional light upon the discussion. The appellee, in building the chute by the side of the railroad, was subject to no more hazard than would have been the employes of the coal company, had they been engaged in building chutes for their employer. It seems to me utterly fallacious to say that the statute, when *299made to apply to the eases of those employes who are hurt in collateral occupations, does not prescribe an arbitrary rule of liability for railroad corporations for injuries to their employes, from which other employes doing identically the same business are exempt.
The view I have expressed above is supported by very high authority. In thé case of Kline v. Minnesota Iron Co., 93 Minn. 63, 66, 100 N. W. 681, the Supreme Court of Minnesota, in construing a statute of that State identical in principle with the one under discussion, said: “This statute has been before the court in numerous cases, and we have uniformly held that it was intended by the Legislature to apply to 'railroad hazards,’ and not to railroads as such; that the character of the employment was the test to be applied in determining its validity, and not the character of the employer. It was first construed in Lavallee v. St. Paul, etc., R. Co., 40 Minn. 249, 41 N. W. 974, where it was held that, if the statute be held to apply to railroad corporations as such, it would be invalid and unconstitutional as class legislation, for it is beyond the power of the Legislature to single out a . particular class of employers and impose upon them a distinct rule of liability for personal injuries; but, if construed to apply to the character of the employment, the legislation was valid. It was accordingly held in that ease that the Legislature intended that it should apply to the hazards and dangers peculiar to the use and operations of railroads, and the decision there made has been followed in all subsequent cases.” In the ease of Deppe v. Chicago, etc., R. Co., 36 Iowa, 52, 55: “But if the statute be so construed as to apply to all persons in the employ of railroad corporations, *300without regard to the business they were employed in, then it would be a clear case of class legislation, and would not apply upon the same terms to all in the same situation, and hence would be unconstitutional, and manifestly so. To illustrate: Suppose a railroad company employ several persons to cut the timber on its right of way, where it is about to extend its road, and the landowner employs a like number of persons to cut the timber on a strip of equal length alongside such right of way. If one of each set of employes shall be injured by the negligence of a co-employe, and the employe of the railroad company can, under the statute, maintain an action against his employer, and the other cannot, then it is clear that the law does not apply upon the same terms to all in the same situation. The law then, would not have uniform operation, but would be violative of the Constitution just as much as a law that should prescribe under the same circumstances different liabilities for merchants, for mechanics, and for laborers. The manifest purpose of the statute was to give its benefits to employes engaged in the hazardous business of operating railroads. "When thus limited, it is constitutional; when extended further, it becomes unconstitutional. To the same effect are Jemming v. G. N. R. Co., 96 Minn. 302, 104 N. W. 1079, 1 L. R. A. (N. S.) 696; R. Co. v. Pontius, 52 Kan. 264, 34 Pac. 739; Johnson v. St. Paul & Duluth R. Co., 43 Minn. 222, 45 N. W. 156, 8 L. R. A. 419; Lavallee v. St. P., M. & M. R. Co., 40 Minn. 249, 41 N. W. 974; Ballard v. Mississippi Cotton Oil Co., 81 Miss. 507, 34 South. 533, 62 L. R. A. 407, 95 Am. St. Rep. 476.
I cannot agree to the assumption that the Supreme Court of the United States, in Tullis v. Lake Erie & Western Railroad, 175 U. S. 348, 20 Sup. Ct. 136, 44 *301L. Ed. 192, -upheld the constitutionality of the act in question as construed in the opinion. An examination of the opinion in the case of Bedford Quarries Co. v. Bough, 168 Ind. 671, 80 N. E. 529, 14 L. R. A. (N. S.) 418, and the various opinions reviewed therein, will show that the Supreme Court of Indiana limited the application of the statute to the injuries of railroad employes engaged in the hazard of the active operation of the road; and it was this construction that was upheld by the Supreme Court in the case referred to above. The opinion of the Supreme Court of the United States and that of the Supreme Court of Indiana show that these courts both held that the Indiana statute, as construed by tbe latter court, was practically the same as the statutes of Kansas and Iowa as construed by the Supreme Court of those states. These statutes were construed without doubt to apply only .to the hazard of railroading, and it was expressly said, if they had been intended to apply to all employes of railroads, they would be violative of the federal Constitution. Deppe v. Chicago, etc., R. Co., supra; Akeson v. Chicago, etc., R. Co., 106 Iowa, 54, 56, 75 N. W. 676; Railroad Co. v. Pontius, 52 Kan. 264, 34 Pac. 739; Railway Co, v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 32 L. Ed. 107.
To show that the Supreme Court of Indiana was of opinion that the statute - under discussion, as construed by it and sustained by the Supreme Court of the United States, is identical with the statutes of Kansas and Iowa,, as construed by the Supreme Courts of those states, I copy the following excerpt from the opinion in Bedford Quarries Co. v. Bough, supra.; “The employer’s liability act of Kansas was the same as the Iowa act above set out (Mo. Pac. R. Co. v. Haley, Adm’r, 25 Kan. 35, 53), and the *302Supreme Court of that State, following the construction given by the Iowa Supreme Court, held in 25 Kan. 53, that it embraced only those persons exposed to the hazards of the business of railroading.’ Missouri, etc., R. Co. v. Medaris, 60 Kan. 151, 154, 155, 55 Pac. 875; Mo. Pac. R. Co. v. Mackey, 33 Kan. 298, 302, 6 Pac. 291. It was held, in effect, by this court in Pittsuburg, etc., R. Co. v. Montgomery, 152 Ind. 1, 8-14, 49 N. E. 582, 69 L. R. A. 875, 71 Am. St. Rep. 30, that the employer’s liability act of this State was capable of severance, by putting railroads in a class by themselves, and that such classification was proper on account of the dangerous and hazardous business of the operation of railroads, and that, so construed, said act, as applied to railroads, was not in violation of either said section 23 of article 1 of the Constitution of this. State, or of the fourteenth amendment of the Constitution of the United States, even if unconstitutional as to the other employers and employes mentioned. In Tullis v. Lake Erie, etc., R. Co., 175 U. S. 348, 20 Sup. Ct. 136, 44 L. Ed. 192, it was held that this court in the Montgomery Case treated the employer ’s liability act as practically the same as said statute of Iowa and Kansas, and that, so construed, it did nor arbitrarily classify railroads by name, but with regard to the business in which they were engaged, which was a proper classification, on account of the dangerous and hazardous business of operating railroads, citing Mo. Pac. R. Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 32 L. Ed. 107, and Minneapolis, etc., R. Co. v. Herrick, 127 U. S. 210, 8 Sup. Ct. 1176, 32 L. Ed. 109, which sustained the constitutional validity of a like statute. In Pittsburg, etc., R. Co. v. Lighteiser, 168 Ind. 438, 78 N. E. 1033, 1041, 1043, this court approved the Mont*303gomery Case, gave the employer’s liability act, as applied to railroads, practically tbe same construction as had been given to tbe statutes of Iowa and Kansas on tbat subject, and held tbat putting railroads in a class by themselves was proper classification, on account of tbe dangerous and. hazardous business of operating railroads, and tbat such classification is not based upon tbe difference in employers, but upon tbe difference in the nature of tbe employment. ”
Nor can I agree to tbe statement in the-opinion tbat Melton was engaged in tbe hazard of the operation of tbe railroad because be was building a coal chute and coal is necessary to tbe operation of a railroad. Tbe chute was entirely separated from tbe railroad’s right of way, and tbe carpenters who were building it were in no danger from anything done in its operation. Railroads, in order to be operated, must have cross-ties and ballast, and must have clerks, bookkeepers, and auditors to keep their accounts, lawyers to defend their suits, and telegraphers to dispatch their trains; but none of tbe men employed in these occupations can be said to be engaged in tbe hazard of the operation of tbe railroad.
Believing tbat tbe statute under which this suit was brought violates tbe equality clause of tbe federal Constitution, and is therefore void, I cannot concur in the opinion of tbe court.
I am authorized to say tbat Judge Lassing concurs in this dissent.