I dissent from more than one of the legal conclusions declared in the prevailing opinion. In so doing I have no disposition to repeat the views which I expressed at length in my dissenting opinion in Western Indemnity Co. v. Pillsbury,170 Cal. 686, [151 P. 398]. In this case I dissent specifically from:
1. The construction of the constitutional provision which creates "a liability on the part of all employers to compensatetheir employees for any injury incurred by the said employees in the course of their employment." By that construction it is announced that this language of the constitution, expressly limited to compensation to employees, means compensation to *Page 426 heirs, to actual dependents, or to a named class of so-called dependents, without regard to their needs. Of course the constitution neither says nor authorizes this. Of course the constitution by its very words limits the liability for compensation to the employees, and therefore, by every canon of construction, particularly in a "revolutionary act" such as this has been described to be, should be construed only in accordance with its language. The reasoning by which the conclusion of the prevailing opinion is reached is, as well as I can follow it, along two lines. In the concurring opinion of the chief justice the argument seems to be that as laws of this nature are generally known as "workmen's compensation acts," and as in all of these laws express provision is made for the compensation of dependents for the death of the injured employee, therefore we should say that the constitution meant to include a like provision, and, furthermore, as it is a desirable thing that the whole subject matter should be left to the accident commission, we are justified in helping out this deficiency of the constitution by making it say not what it does say, but what in the opinion of this court it should have said. If this reasoning is sound, it not only opens wide the door to and justifies any form of usurpation of the legislative power by the judiciary, but goes a step farther and justifies the judicial enactment of constitutions. For such a construction of the constitution makes the people of this state declare what distinctly they declined to declare, and confers upon the legislature a power which distinctly the constitution failed, if it did not refuse, to confer upon the legislature. The unvarnished truth is that, under the guise of construction, this court is filling a manifest gap and hiatus in the law. It is inserting in the constitution important provisions of the law affecting personal rights which provisions are not expressed therein. So that hereafter this court can be justly charged not only with making laws under the guise of construction, but with framing constitutions as well.
The second line of reasoning recognizes the radical and essential differences which exist at common law (which is the basis of jurisprudence in this state, Pol. Code, 4468) between an action in tort by a person for injuries and an action for his wrongful death by his heirs, and declares, as indeed must be declared, that while the right of action to an employee for injuries existed at common law and was enforceable *Page 427 against the master, damages or compensation for the wrongful death of an employee, or of anybody else, were unknown at common law. It is recognized that such was the law of this state until the right of action for the wrongful death was placed upon our books as a statutory right. But we are advised under this line of reasoning that "the analogies of the common law cannot be applied too closely to this new scheme which undertakes to supersede the common law altogether." To this I make answer that here there is no question whatsoever of analogies. It is a question of principles. Specifically, it is the question of applying the proper principles and canons of construction to this constitutional amendment. Those principles are still the principles of construction embraced and declared in the common law, repeated in our code rules of construction (Civ. Code and Code Civ. Proc., sec. 5), and reinforced by the added provision of the code to the effect that the common law of England is the rule of decision in all courts of this state (Pol. Code, 4468).
The imperative duty is thus cast upon this court to construe the scope of this constitutional grant of power to the legislature, under common-law rules governing the construction and interpretation of enactments, precisely as we would construe the same language if found in one of our legislative acts. What jurist with the slightest knowledge of the common law would dream of saying, or would dare to say, that a legislative act in the language of this constitution awarding compensation "to the injured employee," could or would be stretched to mean the creation of a right of action in the heirs or dependents of a dead employee? An act of parliament is England's supreme law, precisely as is our constitution. Could any common-law lawyer be found who would risk his reputation for sanity by declaring that an act of parliament, in the language of our constitution, included indemnification to dependents for the death of the employee. And is it not amazing, if this construction be in anywise tenable, that the same construction has not long since been put upon the common law itself? Would it not have been said (as is here said in reference to our constitutional provision) that as the common law gave a right to compensation to an injured employee, and as compensation is but another word for damages, the common law itself, without statutory enactment, gave a right of action to the heirs or dependents of the employee in the *Page 428 event of his death? How much wasted time and superfluous labor have legislatures bestowed upon these and like questions if this novel rule of construction is a sound one! The framers of every workmen's compensation act thought it necessary to make express provision for compensation in the case of death. They need not have done so. Our legislature thought it necessary to make express provision for a right of action following a wrongful death. It need not have done so. In all the history of the common law, to no analyst of and no commentator on it did it ever occur that the recognized right of action to a person for injuries contained within itself the right of action to his heirs or dependents in the event of his death. We must regret this age-long deficiency in their perceptive and analytical faculties.
2. The employer in this case was concededly absolutely blameless and without fault. I deny the power of the state constitution to take the property of one man under such circumstances and to bestow it upon another. My views upon this I set forth in extenso in Western Indemnity Co. v. Pillsbury,170 Cal. 686, [151 P. 398].
I have no desire to repeat them, but once more and for the last time I must dissent from a judicial declaration which amounts simply to this: Whenever the legislature despoils a blameless person or class of persons of their property to bestow it on the supposedly needy this court will say that the act of spoliation is "referable to the police power" and consequently valid. To a new liability or a new form of liability created to meet negligence or tort, actual or imputable, there can be no valid objection; actual as where the employer fails himself to observe due care for his employees, imputable as where injury results to one employee from the misconduct of another, which latter may reasonably be regarded as in a sort an agent of the employer himself. But beyond this no legitimate exercise of the police power can go; and to approve legislative acts which transcend these just and well-defined limitations is to throw wide the door to whatever form of expropriation the legislature may see fit to indulge in.
In Calder v. Bull, 3 U.S. (3 Dall.) 386, 399, [1 L.Ed. 648, 654], Justice Iredell, after discussing the legislative omnipotence of the English parliament, declares: "In order, therefore, to guard against so great an evil, it has been the policy of all the American states, which have, individually, framed *Page 429 their state constitutions, since the revolution, and of the people of the United States, when they framed the federal constitution, to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the legislature of a state violates those constitutional provisions, it is unquestionably void." In Fletcher v. Peck, 6 Cranch. (10 U.S.) 87, [3 L.Ed. 162], Chief Justice Marshall speaks as follows: "It may well be doubted, whether the nature of society and of government does not prescribe some limits to the legislative power; and if any be prescribed where are they to be found, if the property of an individual fairly and honestly acquired, may be seized without compensation?"
I am not unmindful of the fact that these are utterances of ancient law, having both been written more than a hundred years ago. Nor am I unmindful of the modern tendency to belittle and reject all such utterances as having been made by men steeped to the lips in the wine of privilege, and incapable of understanding the present day theories of the rights of man. Nevertheless, they sat in the nation's highest judicial chairs, and until their successors in those chairs shall say that their words have lost their meaning and their constitutional expositions are obsolete, I shall continue to found my legal views on those utterances rather than on the new science of legal hermeneutics of which the prevailing opinions in this and the earlier case afford such luminous examples.
3. I dissent from the view which justifies the giving of the property of a citizen of this country to nonresident aliens who are not even within the jurisdiction of the state. By no conceivable stretch of the imagination of which I am capable can I perceive that the support of such nonresident aliens is any part of the duty of the state, or that provision for such support comes within any possible legitimate purview of the police power. I must confess to a lack of nimbleness of mind which makes it impossible for me to follow the rapidly shifting grounds upon which one or another of the terms of this law are upheld. I have heretofore expressed some of my difficulties in this regard. Thus when under the provisions of the constitution, which the constitution itself declares are mandatory, it is declared that the legislature shall impose a liability upon all employers, I have been unable to see how justification could be found for the act of the legislature in *Page 430 exempting favored classes of employers. The answer is made by this court that these exempted employers of labor are not favored but unfavored classes, because this law is really a benefit to the employer. But why then the legislature should be allowed to discriminate against certain employees remains an unanswered query. When it is asked, if the law be for the benefit of the employee, by what right are the employees of these exempted classes denied their right, we are brought back to our starting-point by the declaration that the legislature exempted them because it believed that there was less danger or risk in their employments. When the farmers' men working harvesters and threshing-machines are deprived of the benefit of this law, this court gravely states that the reason, doubtless, was that the legislature did not think that their employment was as dangerous as those of dry-goods clerks and telephone girls. Whenever a feature of the act does not appear to be for the benefit of the employer it is upheld as being a benefit to the employee. When it is not a benefit to the employee it is justified as being a benefit to the employer. And whenever it cuts too deeply into the rights of both employer and employee, then it is said to be justified by the state's interest in the general subject. And this last is the argument here advanced in support of the donation by the state of the property of its citizens to alien nonresidents.
4. I dissent from the declaration that the state may arbitrarily create and define a class of persons, and by calling them "dependents" confer upon them any man's property, and I say that this cannot be done even as an exercise of the police power. For the purposes of this argument I will concede that the property of the employer may be given to theactual dependents of the employee who is killed, but the actual dependency as a determined fact is the only basis in law or equity upon which this may be done.
5. I dissent from the views which uphold this award in full, and force full compensation to be made by only one of the deceased's six employers. This dissent has nothing to do with the construction of the law put upon it by the Industrial Accident Commission to the effect that the compensation to the deceased's dependents should be based upon his total earning capacity in his vocation. This is manifestly the sound view of the law, and this is what the Gillen case (215 Mass. 96, *Page 431 [L. R. A. 1916A, 371, 102 N.E. 346]) decided and all that it decided. There was not before the Massachusetts court the question here presented, and I fail to understand how it can be thought and said that the Gillen case is authority, even of the slightest weight, for the harsh and unnecessary construction here put upon this law. The deceased was a night watchman whose services were engaged by six employers. Those six employers were continuously and contemporaneously his employers during every moment of the time that he was on duty. He was protecting the properties of all of them. He was found murdered upon the premises of one, and because of that fact, and that fact alone, the employer upon whose premises his body was found is mulct for the whole compensation due his dependents. The residents of two blocks in the city of San Francisco employ a man to carry away their garbage. These two hundred residents pay him each one dollar a month for so doing. He earns from his employment two hundred dollars a month. Upon the stairway of one of these employers he negligently falls and breaks his neck. That householder must pay the full amount of the compensation. The gardener whom fifty householders employ at a dollar a month each to take care of their garden plats is injured upon the premises of one of them. That man alone must bear all the burden of compensation. And this result is declared, notwithstanding the fact that at the time, and during all of the time, he is as much the employee of the others as of the one. It is a perfectly permissible construction of this statute to say, as is the fact, that all of these men are coemployers, and that each one shall bear his proportionate share of the award. How much more equitable this construction would be requires no word of comment. The evils arising from the other construction are most apparent. Furthermore, if this rule of construction of the statute be the true one, which of these employers will be responsible in the event that the employee is killed or injured on the sidewalk or street? If his dependents are to be compensated only by the man for whom he happens to be actually laboring at the time of the injury, then we have an omission in the law, and in such a case neither the employee for his injuries, nor his dependents for his death, could receive any compensation. Or, if this necessary construction be pushed aside, as has been done with the constitution, and it be said that some one of them will *Page 432 have to compensate the injured man, then we have a liability cast at the whim, caprice, or favoritism of the injured man, of his dependents, or of the accident commission itself. So unnecessary and so injurious is this construction of the law as compared with the one which would make all the contemporaneous employers proportionately responsible, that I fail absolutely to understand why this forced, unnecessary, and unjust construction should find favor with this court.