resemble that of an employe than that of a passenger. His position is one created by an agreement between the express company and the railroad company, adjusting the terms of a joint business, the transportation and delivery of express matter. His duties of personal control and custody of the packages, if not performed by an express messenger, would have to be performed by one in the immediate service of the railroad company. And, of course, if his position was that of a common employe of both companies, he could not recover for injuries caused, as would appear to have been the present case, by the negligence of fellow servants." The question therefore turns upon the operation of the statute. In his opinion Judge Shiras says: "The right to conduct and operate a railroad by the agency of steam in the state of Iowa is derived from the legislation of the state, and in conferring this right and providing for the mode of its exercise, the state has the right to make such provisions as it deems best to secure the safety of the life and limbs of those who may be subject to risk through the operation of the railways of the state." This right has been frequently recognized by the legislatures of other states and their statutes have been similarly interpreted by the courts. Coley v. North Carolina Railway Co., 40 S. E. 195, 1901; Missouri Pacific Railway Co. v. Mackey (Kan.) 127 U. S. 205, 1887; Minneapolis & St. Louis Railway Co. v. Herrick (Iowa), 127 U. S. 210, 1887; Chicago, Kansas & Western Railroad Co. v. Pontius (Kan.), 157 U. S. 209, 1894. These cases thoroughly discuss the constitutionality of such statutes and decide it in the affirmative. In Railroad Co. v. Mackey (supra), the court said: "But the hazardous character of the business of operating a railway would seem to call for special legislation with respect to railroad corporations, having for its object the protection of their employes as well as the safety of the public. The business of other corporations is not subject to similar dangers to their employes, and no objection therefore can be made to the legislation on the ground of its making an unjust discrimination. It meets a particular need, and all railroad corporations are, without distinction, made subject to the same liabilities."

In another part of the same decision it is said: "When legislation applies to particular bodies or associations a law imposing upon them additional liabilities, is not open to the objection that it denies to them the equal protection of the laws, if all persons brought under its influence are treated alike under the same circumstances." Rights and privileges arising from contracts with a state are subject to regulations for the protection of the public health, public morals and public safety, in the same sense as are all contracts, and all property, whether owned by natural persons or by corporations: St. Louis & San Francisco Ry v. Mathews, 165 U. S. 1, 1896; Slaughter-house Cases, 16 Wall 36, 1872; Patterson v. Kentucky, 97 U. S. 501, 1878; New

Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 1885; New Orleans Waterworks v. Rivers, 115 U. S. 674, 1885. The power of a state to so regulate contracts of this nature is not questioned. The state, for the protection of the property of its citizens, having the right to impose upon railway companies liability for injury to such property resulting from the operation of their trains, it would seem that certainly it must have the right to throw a like protection around the life and limb of its citizens. The rule of the common law, as it is said in Hough v. Railway Co., 100 U. S. 213, 1879, is based upon the proposition that, "it is implied in the contract between the parties that the servant risks the dangers which ordinarily attend or are incident to the business in which he voluntarily engages for compensation; among which is the carelessness of those at least in the same work or employment, with whose habits, conduct and capacity he has in the course of his duties an opportunity to become acquainted, and against whose negligence or incompetency he may himself take such precautions as his inclination or judgment may suggest." This rule of common law was formulated in connection with the ordinary business vocations of life, long prior to the introduction of railroads and their extensive and complicated systems of employment; when from personal contact with his fellow employes, an employe had a better opportunity to judge their competency and carefulness than was possessed by the master; and such employe had an opportunity to protect himself against the dangers resulting from their carelessness, either by complaint to the master or by taking the precautions rendered necessary by the actions of his co-employes. For these reasons the rule is perfectly just when applied to the ordinary employments out of which it had its birth. But when the employe is one of thousands, most of whom he has never seen, and where he can have no opportunity to judge of their competency and carefulness, when the slightest act of negligence of a fellow employe may put his life in jeopardy, as is the case in a great modern railway system, the reasons which were the cause of the common law rule can hardly be said to apply.

We come now to an examination of the contract exempting the railroad company from all liability under the Iowa statute. Judge Shiras says: "The Supreme Court in the Voight case (supra), held that such messengers were not passengers upon the railway trains, but rather occupied the position of employes of both companies. If such is their legal position, then, being an employe of the railway company, the messenger clearly comes within the spirit as well as the language of Section 2071, and the railway company is made liable to him for the consequence of the neglect or mismanagement of the employes of the company in the operation of the railway." In Coley v. North Carolina Railway Co. (supra), the court said: "It is well settled that the

doctrine of fellow servants and assumption of risk rests entirely upon an implied contract; and if an express contract could be made to take the place of the implied contract the essential purpose of the act could be defeated."

In most of the states of the Union, a railroad as a common carrier may not contract against liability for negligence (see Fetter on Carriers, § 398; R. R. Co. v. Lockwood, 17 Wall. 357, 1873; Farnham v. Camden & Amboy Railroad Co., 55 Pa. State 53, 1867). The doctrine of these cases, like that of the case under consideration, is primarily, public policy. "Whatever difference of opinion may exist as to the extent and boundaries of the public power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health and property of the citizen The legislature cannot by any contract divest itself of the power to provide for these objects. They belong emphatically to that class of objects which demand the application of the maxim, salus populi suprema lex, and are to be attained and provided for by such appropriate means as the legislative discretion may devise." Beer Co. v. Moss., 97 U. S. 25, 1877. "Whether a contract shall be avoided on the ground of public policy does not depend upon the question whether it is beneficial or otherwise to the contracting parties. Their personal interests have nothing to do with it; but the interest of the public alone, is to be considered. The state is interested not only in the welfare, but in the safety of its citizens. To promote these ends is a leading object in the government. Individuals are left to make whatever contracts they please, provided no legal or moral obligation is thereby violated, or any public interest impaired; but when the effect or tendency of the contract is to impair such interest, it is contrary to public policy and void." Smith v. New York Central Railroad Co. (supra).

The power of the state to impose restraints and burdens upon persons and property in promotion of the public health, good order and prosperity, is a power always belonging to the states, not surrendered by them to the general government, and essentially exclusive. By statutory enactment in Iowa it has been declared to be the public policy of the state that corporations engaged in railway business in that state cannot, by contract, free themselves from the liability attaching to them as carriers of passengers and property; that they are liable to every person, including their own employes, for injuries resulting from their neglect; and that such liability, so imposed on the railway companies, cannot be evaded through any contract of insurance, benefit or indemnity entered into prior to the injury complained of. "In the face of these provisions of the state statutes," says Judge Shiras, "it is impossible to give any force or validity to the contracts relied on by the defendant in this case. Their clear pur

pose is to attempt to free the railway company from the liability the state has seen fit to impose upon it in the conduct of its business in Iowa, and which the state statutes declare cannot be avoided by contracts entered into in violation of the provisions of the statutes, and it must be held that the clauses of the contract which are intended to free the company from liability for injuries caused by the negligence of the company or of its employes to express messengers, when engaged in their duties upon the company's trains in Iowa, are invalid."

In accord, see Railroad Co. v. Pontius (supra); Railway Co. v. Mackey (supra); Railway Co. v. Herrick (supra); Railroad Co. v. Mathews, 168 U. S. 7, 1897.

I. G. G. F.

BOOK REVIEWS.

THE STATE: THE GOVERNORS AND THEIR AGENTS. (L'ETAT: LES GOUVERNANTS ET LES AGENTS.) By LEON DUGUIT, Professor of Law at the University of Bordeaux. Paris: Ancienne librarie Thorin et fils. Albert Fontemoing, editeur. 1903. Pp. 774.

Those who have read with interest the first volume of Professor Duguit's work on the State,1 will be pleased to learn that the second and concluding one has appeared. The sub-title, "Governors and Agents," gives us the key to the new book. It is of the relations between these and the so-called "State" that he treats. The fundamental idea of the work is that status and not contract determines the rights of all. Our author premises in his introduction the conceptions of the objective law (founded upon the solidarity by similitudes), which controls all human affairs, and of "the State," which he says means only that in any community certain men monopolize political power. Thence he proceeds to show the development of the idea of representation, arising first in Roman Law; how, once established, it necessitated a State-person in order to validate the acts of the gov ernors by giving them a contractual basis.

Our author shows that the conception of the Nation-person was made the basis of the "social contract," and so the "vicious circle" was complete. He denies the truth of the theory of representation and the reality of the State-person. The former is false, he says, because the governors represent only themselves— never the community-(a view which is held in some portions of the United States); the latter because it is impossible of demonstration.

Considering the Nation, M. Duguit rejects all à priori conceptions. He says, following the opinion of Aristotle, that before we can define it we must determine the nature of its constituent parts. Thence our author goes on to discuss the nature of the electorate. He says that universal manhood suffrage proceeds from a false premise, that it makes equal unequal things. His own view is that there is no right to vote; "the electorate is a power to will effectively in the domain of the law; the electorate is an objective power of an individual will." This, of course, follows from his conception of the objective law.

Having thus demonstrated that the electorate is merely a function our author proceeds to define parliaments as follows: "In political parlance the name of parliaments is given to assemblies of individuals who are in fact invested with the power

1 Reviewed in the LAW REGISTER for September, 1902.