legislature has thus attempted to take away are not entrenched behind any express constitutional provision, nor were they originally created by legislative action. They were both evolved by the courts. * * *

"It is frankly admitted by appellant that it is within the legislative power to make this change with regard to the hazardous trades, but not with regard to what are called the non-hazardous trades. But why not? There are, of course, some occupations which are exceptionally hazardous, and it may well be that it would be within legislative discretion to classify these very hazardous occupations and remove the defenses to them, while retaining them as to others less hazardous. Indeed, that very thing has been done and has been approved by the courts in this and many other states, especially in the case of railroads and to some extent with other industries. Minnesota Iron Co. v. Kline, 199 U. S. 593, 26 Sup. Ct. 159; 50 L. ed. 322; sec. 1816, Stats. (1898), as amended by ch. 254, Laws of 1907; Kiley, etc., C. M. & St. P. R. Co., 142 Wis. 154, 125 N. W. 464; sec. 1636j, Stats. (1898); sec. 1636jj, Stats. (ch. 303, Laws of 1905).

"But because there is room for classification it does not follow that legislation without classification is unconstitutional. There are hazards in all occupations; indeed they follow every man from the cradle to the grave. What constitutional requirement, either express or implied, clothes these court-made defenses with exceptional sanctity as to the less hazardous industries, and wards off from them the sacrilegious hand of the legislature? We are referred to none, and we know of It is admitted in the Ives case, supra that both the fellow-servant defense and the contributory-negligence defense, being of judiciai origin may be changed or abolished by the legislature. See also the opinion of the Justices of the Massachusetts Supreme Court on the

none.

Personal Injuries act of 1911, 96 N. E. 308. We see absolutely no ground for the contention that these defenses may be lawfully abrogated as to the more hazardous industries, but must be forever held sacred as to the less hazardous industries. There may be a less persuasive reason for the change in the case of the latter class of industries, but this does not deprive the Legislature of the power to make it."10

§ 72. Validity as to employe.-Workmen's insurance and compensation acts take away from the employé his common-law right of action against his employer for nonfatal injuries caused by the employer's negligence. As to fatal injuries, a cause of action against an employer was unknown to the common law, is a statutory creation, and consequently (since the Constitution of the state contains no inhibition) is subject without question to repeal by the Legislature. The proposed act carefully saves any right of action on account of an injury received prior to the date named for it to become operative, upon the employers and employés affected by it. The question involves not the taking away of a vested right of action, but the changing of the law in respect of expectancies and possibility of action in which the party has no present interest.

At an early day the Legislature of Pennsylvania passed a statute abolishing the doctrine of respondeat superior in the case of persons injured on or near railroads and not in the employ of the railroad company. Of this law the Supreme Court said: "The law says that the legal principle of respondeat superior shall have no place in this particular relation; that as a matter of public policy for the good of all, those who voluntarily venture into employment alongside of the servants of a 10 Borgnis v. Falk, 147 Wis. 327, 133 N. W. 209. See also Ives v. South Buffalo R. Co., 201 N. Y. 271.

railroad company shall have just the same remedies for injuries happening in the employment that these have, and none other. In doing this no fundamental right of the person thus voluntarily venturing is cut off or struck down. The liability of the company for the acts or omission of others, though they be servants, is only an offspring of the law. The negligence which injures is not theirs in fact, but is so only by imputation of law. The law which thus imputes it to the company for reason of public policy can remove the imputation from the master and let it remain with the servant whose negligence causes the injury."11

The Supreme Court of the United States had before it the same statute and sustained it, saying: "If it be conceded, as contended, that the plaintiff in error could have recovered but for the statute, it does not follow that the legislature of Pennsylvania, in preventing a recovery, took away a vested right or a right of property. As the accident from which the cause of action is asserted to have arisen occurred long after the passage of the statute, it is difficult to grasp the contention that the statute deprived the plaintiff in error of the rights just stated. Such a contention in reason must rest upon the proposition that the state of Pennsylvania was without power to legislate on the subject,—a proposition which we have adversely disposed of. This must be, since it would clearly follow, that if the argument relied upon were maintained, that the state would be without power on the subject. For it can not be said that the state had authority in the premises if that authority did not even extend to prescribing a rule which would be applicable to conditions wholly arising in the future."12

A right of action of a third person against a master

11 Kirby v. Pennsylvania R. Co., 76 Pa. 506.

12 Martin v. Pittsburg, etc., R. Co., 203 U. S. 284, 51 L. ed. 184, 27 S. Ct. 100, 8 A. & E. Ann. Cas. 87.

for negligence of his servant was a common-law right of action.13

§ 73. Validity as to employe-Vested rights in remedies withdrawn.-"Vested rights," says Judge Cooley, "can not be taken away by legislative enactments, but a right can not be considered a vested right unless it is something more than such a mere expectation as may be based upon the anticipated continuance of the present general laws. The Legislature may change such general laws constitutionally except as to a right of interest that may have already accrued or become perfected. * * * In organized society every man holds all he possesses, and looks forward to all he hopes for through the aid and under the protection of the laws; but as changes of circumstances and of public opinion, as well as other reasons affecting the public policy, are all the while calling for changes in the laws, and as these changes must influence more or less the value and stability of private relations and strengthen or destroy well-founded hopes, and as the power to make very many of them could not be disputed without denying the right of the political community to prosper and advance, it is obvious that many rights, privileges, and exemptions that usually pertain to ownership under a particular state of law, and many reasonable expectations, can not be regarded as vested rights in any sense." Says the Supreme Court of the United States in Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77: "A mere common-law regulation of trade or business may be changed by statute. A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of

13 Middleton v. Fowler, 1 Salk. 282; Blackstone's Com. 431; Gray v. Portland Bank, 3 Mass. 364, 3 Am. Dec. 156; Harlow v. Humiston, 6 Cow. 189.

municipal law, and is no more sacred than any other. Rights of property which have been created by the common law can not be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will or even at the whim of the legislature, unless prevented by constitution limitations. Indeed the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to changes of time and circumstances."14

Some of the states in their Constitutions, in substance, contain the provision of Magna Charta, that "every man shall have a remedy for injury done him in person, property, or reputation." Nevertheless, the principle last above stated has been sustained in states having such a constitutional provision.15

"Conceding that a cause of action for personal injuries is property, the cause of action, i. e., the property must exist before one can be deprived of it at all. A statute which abrogates a cause of action for personal injury before such cause of action has arisen or before the injury occurs, or requires certain things to be done by the injured party as conditions precedent to a cause of action, does not deprive the injured party of his property rights without due process of law. * In other words, the legislature may create a right of action which never existed, if in doing so it does not affect rights which vested prior thereto. A party injured after the legislature has taken away the right of action for personal injuries can no more complain of it than a party against whom a right of action is given for an injury resulting in death, can of such a legislative enactment.

14 Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77. Applied to the relation of master and servant in Vindicator Consol. Gold Min. Co. v. Firstbrook, 36 Colo. 498, 86 Pac. 313, 10 A. & E. Ann. Cas. 1108.

15 Templeton v. Linn County, 22 Ore. 313, 51 L. R. A. 730, 29 Pac. 795; William v. Galveston, 41 Tex. Civ. App. 63, 90 S. W. 505.