The petition for rehearing filed herein relates only to the facts concerning the injury in the particular case, and not to the validity of the law. These facts are sufficiently treated in the opinion and I think they require no further consideration.
Further reflection upon this case since our decision was rendered has led me to doubt the soundness of one of the propositions treated in the opinion. I refer to that part of the opinion affirming the validity of the act so far as it declares that the employer who is himself without fault may be compelled to compensate his employee for an accidental personal injury which such employee has inflicted upon himself solely by his own negligence. I take this occasion to state the reasons for my doubts.
It is proper to say that the case involved in this proceeding was not of this class and hence that the question does not directly arise in the case, and further that, in my opinion, even if it be decided that the law is invalid in this respect, it would not affect its validity with respect to accidental injuries of other classes. For these reasons a rehearing herein is unnecessary. This particular case is properly decided because the injury involved falls within the classes with regard to which I believe the law to be valid. But the principle declared in support of its validity as to the particular class of cases just mentioned is so revolutionary and so destructive of what has heretofore been considered the inalienable right of citizens that I do not think it should be allowed to become a precedent, even if only a dictum, without further consideration.
I concede that it may be a matter of public concern and a duty of the state to relieve employees who, in the course of their employment, may be injured solely by their own fault and not by the contributing negligence of a fellow-servant, or the employer, or because of any danger inherent in the business itself or in the place in which it was carried on. This, in fact, is the only justification and sole authority for an enactment by the state of a law to provide relief for such injuries. It would be in the nature of a public charity, and, consequently, the money used in giving such relief would be money applied to a public purpose or use. But it does not follow that the state has the right or the legislature the power to do this by putting the entire burden of supplying the money in each case *Page 732 as it arises, upon the person who happens to be the employer of the injured person, and who, in the case stated, is no more blameworthy or instrumental in the infliction of the injury than any other citizen.
In plain language and stripped of all obscuring verbiage, this is nothing else than the taking of the employer's property from him without compensation, without consideration and without process of law, and giving it to another for his private use.
There are strong reasons for holding this to be a clear violation of the right to acquire and possess property which our state constitution declares to be inalienable. This declaration is but a reiteration of one of the fundamental doctrines upon which all free government is founded, the doctrine that the right to acquire, possess, and enjoy property inheres by nature in every human being, and is independent of constitutions and constitutional guaranties, that it is a right which cannot be taken away from any person by any declaration or rightful rule of the majority, except in the exercise of the police power. This doctrine is self evident and is sanctioned by the highest authority. Mr. Cooley in his work on Constitutional Limitations says: "The bill of rights in our American constitutions forbids that parties shall be deprived of property except by the law of the land; but if the prohibition had been omitted, a legislative enactment to pass one's property over to another would nevertheless be void." And he quotes the following from the opinion of Justice Nelson in People v. Morris (13 Wend. (N.Y.) 328): "It is now considered an universal and fundamental proposition in every well regulated government, whether embodied in a constitutional form or not, that private property cannot be taken for strictly private purposes at all, nor for public use, without compensation." (Cooley on Constitutional Limitations, p. 244.) And on page 507, after stating that private property may be taken for public use, under the powers of taxation and eminent domain, he says further, "But there is no rule or principle known to our system under which private property can be taken from one person and transferred to another, for the private use and benefit of such other person, whether by general law or by special enactment. The purpose must be public and must have reference to the needs or convenience of the public, and no reason of general public policy will be sufficient to validate other transfers *Page 733 when they concern existing vested rights." (See, also, Wilkinson v. Leland, 27 U.S. (2 Pet.) 657, [7 L. Ed. 542]; Terrett v.Taylor, 13 U.S. (9 Cranch), 50, [3 L. Ed. 650]; Bowman v.Middleton, 1 Bay (S.C.) 252; Ervine's Appeal, 16 Pa. St. 263, [55 Am. Dec. 499]; State v. Neff, 52 Ohio St. 401, [28 L.R.A. 409, 40 N.E. 720]. Many other cases to the same effect could be cited.)
It is a well established principle of constitutional law that all property is held subject to the police power and that in its legitimate exercise, property may be taken from the owner or destroyed, without compensation to him for its value. This is a part of the price which every person pays for the protection afforded to him, in his person and property, by organized society, and the consideration therefor to him consists of that protection and in his share of the public benefit presumed to follow. But there are persuasive reasons and high authority for the doctrine that one of the conditions and limitations of this power is that it cannot be exercised upon any individual unless he or his property is or may become somehow offensive or detrimental to society, that is, to the general welfare or public interest. By this is meant that he must be personally at fault in some way, or that his property must be, either of itself and naturally, or by reason of its actual or potential use, injurious or inimical to the general welfare. It would seem that the community has no moral right to deprive an innocent person of property belonging to him if neither by its use, its nature, or the use which is or may be made of it by others, it is or can be harmful to others or to the general welfare. (Freund on Police Power, sec. 511.) The very foundation of the conception of police power is that it must exist and can only exist to protect the public from evil, hurt, or mischief, and to promote the public interest or welfare or the public convenience. It may well be said, therefore, that it can be exerted upon the individual only when he, or his property, causes, or is likely to cause, evil hurt or mischief to the public, or to the public interest, or interferes with the public welfare or convenience. No one would seriously dispute the proposition that the private property of a person cannot be taken from him, under the police power, solely because its possession by the public, or by another individual, would be a greater public benefit than its possession by the original owner. *Page 734 There are decisions which appear to indicate that this is the fundamental basis for the exercise of the police power. A few passages may be quoted. In Commonwealth v. Tewksbury, 11 Metc. (52 Mass.) 55, the court said, "All property is acquired and held under the tacit condition that it shall not be so used as to injure the equal rights of others, or to destroy or greatly impair the public rights and interests of the community; under the maxim of the common law sic utere tuo ut alienum non laedas. In Mugler v. Kansas, 123 U.S. 623, [31 L. Ed. 205, 8 Sup. Ct. Rep. 273], the court said, "All property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community"; and further. "The exercise of the police power by the destruction of property which is in itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use or depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other unoffending property is taken awayfrom an innocent owner." In Fertilizer's Co. v. Hyde Park,97 U.S. 667, [24 L. Ed. 1036], the court said that the police power "rests upon the fundamental principle that every one shall so use his own property as not to wrong or injure another." Many similar declarations could be quoted, all of which declare or clearly imply that property cannot be taken from a person, under the police power, where such person is innocent of wrong and his property is not and cannot become harmful to the public interest or welfare.
It would follow from these principles that in the case of the blameless employer here referred to there is no foundation for the exercise of the police power upon him. He has done no wrong. His property is neither harmful to other persons nor to the public interests or welfare. There is, in truth, no pretense that it is. In such a case the state takes the money from the employer and passes it over to his employee not because of his use of it, or of its nature, or of any act of his, but solely because the state conceives it to be its own duty to relieve the misfortune of the employee, believes that such relief will promote the general welfare, and that money is required for that public purpose. This may be a sufficient reason for the raising of funds by the state by some lawful mode of taxation, bearing alike upon all concerned therein, out of which to compensate *Page 735 this class of injured persons. But it may well be doubted if it furnishes any justification or reason whatever, for a law of the state compelling the innocent employer to bear the whole of the state's burden and to perform the state's duty by paying the entire compensation himself.
In concurring in the decision of the court herein I said that, because of the insurance scheme instituted by this law, the burden of this relief would be ultimately distributed evenly over all employers in the industries affected by the law and thereby placed equally upon those who ought to bear it; thus being, in practical operation, in the nature of a tax, or impost, similar in effect to that of the state of Washington; and that because of this feature the law might be deemed a reasonable exercise of police power. For this reason alone I concurred in the opinion.
The difficulty with this solution of the question, aside from the fact that it seems, unwarrantably, to combine the taxing power and the police power, is that, if the propositions I have heretofore stated are correct, the law, so far as its application to this class of accidental injuries is concerned, is not an exercise of the police power at all. If, as above indicated, the law in this respect is an attempt to take private property from the owner for the private use of another person, under the claim that the public welfare will be promoted by such transfer, it would be a taking for a public purpose without lawful excuse or right and without compensation. Consequently, it would not be justified, or made lawful, by the fact that some provision is made whereby the owner may be partially reimbursed. As an exercise of the power of taxation to raise funds for a public purpose, it is condemned by its admitted inequality and lack of uniformity. Furthermore, it does not purport to be a taxing act as does the Washington law. It is not a lawful exercise of the power of eminent domain, for the owner is compelled to pass his money over directly to the private use of another, and it is difficult to see that he is properly compensated therefor by the state or by the person who received it, or at all. Even the opportunity to obtain such partial reimbursement as the law furnishes by means of the insurance scheme is not made absolutely secure, but depends on the soundness of the plan and its general voluntary adoption, or the pleasure of future legislatures in keeping up the insurance funds, if it should prove inadequate through lack of patronage *Page 736 or from other causes. The power of eminent domain is coupled with the conditions that the compensation for the property taken must be full, not partial, and that it must be actually made. A mere opportunity to buy compensation, or to contract for it, will not meet the conditions.
So far as it provides for compensation from employers to their employees who are accidently injured in the course of their employment, where the injury is caused wholly or partly by the negligence of the employer or of a fellow-servant, or from dangers incidental to the business or arising out of the place provided by the employer for the doing of the work, I believe the law is within the legitimate and constitutional powers of the legislature and of the state, and I concur in the main opinion so far as it applies to these classes of cases. But with respect to that much smaller class of cases, where the negligence of the employee himself is the sole cause of his injury, and the negligence of the employer, or of fellow-servants, or the dangers of the business, or of the place in which it is carried on, in no manner contributes thereto, the law appears to me to be a provision for carrying out a public charity the burden of which in each case is placed wholly upon a single person who is without fault.
I can conceive of no reason why the law may not operate successfully in all other cases. The question I have discussed will not arise except in cases which come within the description I have given of an injury occurring solely from the negligence of the employee himself. Inasmuch as its application to this class of cases was not directly involved in the present case, I think it would have been better to have refrained from expressing any opinion regarding it until the point is directly presented. I express these views now because, when such case does arise, I wish to be free to consider the question anew, and because if the law, in this particular, does violate inalienable human rights, this court has no duty more important than that of declaring such rights and preserving them from legislative invasion. *Page 737