dissenting.
Section 193, Constitution, is as follows (note that it refers to employees exclusively, and to no other class) : “Sec. 193. Every employee of any railroad corporation shall have the same right and remedies for any injury suffered by him from the act or omission of said corporation or its employees, as are allowed by law to other persons not employees, where the injury results from the negligence of a superior agent or officer, or of a person having the right to control or direct the services of the party injured, and also when the injury results from the negligence of a fellow servant engaged in another department of labor from that of the party injured, or of a fellow servant on another train of cars, or one engaged about a different piece of work. Knowledge by an employee injured of the defective or unsafe character or condition of any machinery, ways or appliances shall be no .defense to an action for injury caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars, or engines, voluntarily operated by them. Where death ensues .from any injury to employees, the legal or personal representatives of the person injured shall have the same rights and remedies as are allowed by law to such representatives of other persons. Any contract or agreement, express or implied, made by an employee to waive the benefit of this section shall be null'and void; and this section shall not be construed to deprive any employee of a corporation, or his legal or personal representative, of any right or remedy that he now has *613by tbe law of tbe land. Tbe legislature may extend tbe remedies herein provided for to any other class of employees.”
Of course, it must be conclusively presumed that tbe constitutional convention, when it ordained this section, acted in full view of the common law and of Lord Campbell’s act, and pf tbe fellow servant ruleyprevailing in tbe decisions of tbe courts. It is also plain that this section can no more be added to nor subtracted from by legislatures than any other clause of tbe constitution. It should absolutely bind tbe lawmaking power, so that it cannot move beyond tbe limits of its own authorization. Tbe section refers alone to employees. Before Lord Campbell’s act, which was tbe beginning and prototype of all legislation on tbe subject, there could be no recovery for a personal injury after tbe death of tbe person injured. The right of action did not survive. It died with tbe person. “Ac-tio personalis moritur cum personaSection 663, Code 1892, the outgrowth of prior legislation on tbe subject, creates and bounds tbe right of recovery in tbe state of case it mentions only, and in no other state of case. It applies in terms to “any persons” (all persons), and against all persons and all corporations. Section 193 of tbe constitution, referring solely to employees, regulates, prescribes and measures tbe rights of all era ployees of any railroad “for any injury from tbe act or omission of said corporation or its employees where tbe injury results from tbe negligence of a superior agent or officer, or of a person (however inferior) having tbe right to control or direct tbe services of tbe party injured, and also,” etc. A superior agent or officer represents the corporation, which can act only through its officers and agents, and tbe expression used is the equivalent of saying: “Where the injury results from the negligence of the corporation, or of a person having the right to control or direct the services of the party injured.” So far as the meaning is concerned, it was useless to employ the words “superior agent or officer,” as indicating one having the right to “control or direct the services of the party,” because that is immediately *614and specifically provided for. Therefore, it is clear that it was meant that a '‘superior agent or officer” is a representative of the corporation, standing for it. This not only changes the fellow servant doctrine as previously established, but secures the right of employees beyond this, against the corporation represented by its “superior agent or officer.” The several separate provisions are plainly expressed. The right of action, is given to “the legal or personal representatives,” which terms, in the whole history of the law as applied to actions, mean administrators and executors. ITeirs, as such, could never sue in such cases; and neither Lord Campbell’s act, nor any of the acts following it or enlarging it, ever had any reference to the laws of inheritance. The constitutional provision applies to injuries not causing death as well as to those causing death, while § 663, code 1892, and § 1510, revised code 1880, relate alone to cases where death ensues. The constitution creates new rights in la-vor of employees of railroad corporations, enforceable by them while living, and by their legal or personal representatives after death. These rights were deemed of such importance as to be made the subject of the special provision contained in sec. 193, and the legislature was authorized to extend the remedies therein provided for to any other class of employees. This section of the constitution was put in the code of 1892 as § 3559 of that code, and, being thus treated as a mere statute, the idea was begotten that it might be amended by the legislature otherwise than by simply extending the remedies, as alone it was authorized to do. In the act of 1896 the legislature extended the remedies to the employees of all corporations, as it was fully empowered to do. Therefore, sec. 193 must now be considered as if employees of all corporations were embraced by it, and by it all secured the very valuable rights it confers. The legislature was powerless to amend the section except as expressly authorized; else why the limit on the authorization to an extension of the remedies “to any other class of employees ?” The legislature had no power to say who might *615sue and recover, except as specified in the section. This section is as sacred and free from legislative touch as any other. If it may be altered, so may be every other section, and the constitution may become the plaything of the legislatures and the courts. When a subject is regulated by the fundamental law, legislatures must keep hands olf, except as by it empowered to touch it. The constitution having dealt with the subject, it is taken out of the domain of legislative action, and the constitution alone is the boundary of the rights and remedies it prescribes. Employees only, being provided for by the constitution, must look not to legislative action, but to the paramount law, while all others must be governed by the statutes. If the constitutional provision in any respect narrowed the rights and remedies of employees as existing by statute before, it also greatly enlarged them, and the section must be regarded as the expression of the sovereign will as to the class provided for. If it had simply narrowed, it would not be contended that the legislature could enlarge, and so it cannot enlarge it beyond the prescribed limits of enlargement, any more than it can restrict or narrow those limits. It is therefore a conclusion inescapable that employees of all corporations must look to the constitution for the measure of their rights and remedies, and that others depend on the statute. The word “corporation,” in § 663, code 1892, is used as a defendant in an action for injury producing death, so as to secure liability of corporations in such cases, as well as natural persons. Chapters 65 and 66, laws of 1898, are* independent acts, varying as to the parties authorized to sue, and varying, as to the measure of damages; the former being code, § 663, with an addition,_ and the latter being sec. 193 of the constitution extended, and certain unauthorized interpolations as to who may sue, and also by inserting “or of the improper loading of cars.” The only effective provision in ch. 66 is the extension to employees of all corporations. Suppose § 663 of the code and sec. 193 of the constitution were embraced in one act; could ony one question that the part compos*616ing § 663 was for persons other than employees of corporations, and sec. 193 for such employees ? The same interpretation must now apply. Section 193, extended, very manifestly is the exclusive authority for, and measure of, the rights and remedies of employees of corporations, as § 663 is for other persons.
To recur: At common law all persons had a right of action against all persons, natural and artificial, for injury suffered by the wrong doing of the defendant. But death ended the claim. The right of action did not survive. Lord Campbell’s act saved the right after death; and our act not only did this, but gave the remedy Lo certain persons, prescribed the measure of damages, and the time within which the action must be brought. Employees, as well as others, were within the provision of the act. But there were certain rules springing from the relation of employees to the master and his other employees- — -fellow servants. Thus the law was when sec. 193 of the constitution prescribed the rights of employees of railroad-corporations — now of all corporations — and the remedy in case of their death. This clearly took them out of the operation of § 663, which refers alone to death, while sec. 193 embraces both life and death; defining the right of recovery during life, and securing survival to legal or personal representatives — administrators and executors — after death. This covers the whole ground, and is exclusive as to the rights of these employees. The statute (§ 663) is superseded as to them. Under any other view, resort ’must be had to sec. 193 for the right of an employee- of a corporation, and to the statute for the remedy, both as to who may sue, and what the recovery may be. If my view be correct, an employee may sue in life, and his administrator, or executors after his death, and no other can. Relatives or heirs may be beneficiaries of the recovery by these representatives, but they cannot sue, because sec. 193, the exclusive creator of rights and remedies for them, does not confer this right upon them. ' Under § 663, existing as § 1510 of the revised code of 1880 before sec. 193 of the constitution, all named in it might *617sue. But that was uot thought good enough for employees of railroads, and so special provision was made for them by sec. 193, which alone prescribes and regulates for them, whereby, necessarily, § 663, overridden by the higher law, was merged in it as to employees. If the foregoing views are wrong, and if chs. 65 and 66, laws 1898, are both válid in all their provisions, then, of course, wherein they do not harmonize the latter act must prevail. Certain it is that the adoption of the views of this opinion will avoid great confusion and .much difficulty. By the other view continual controversy will exist as to which act shall be applied, and how far resort must-be had to the common law, or to § 663, code, or sec. 193, constitution. Finally, it seems clear, also, in view of the preexisting law, that the word “child” does not include an adult, as in the law of descents. Loss of services must be the determining factor.