the court which can be said to create liability without fault and take the property of one person to pay the obligations of another, the most conspicuous examples are, perhaps, sections 4585 and 4803 of the Revised Statutes of the United States, which provide:

"Sec. 4585. There shall be assessed and collected by the collector of customs at the ports of the United States, from the master or owner of every vessel of the United States arriving from a foreign port, or of every registered vessel employed in the coasting trade, and before such vessel shall be admitted to entry, the sum of forty cents per month for each and every seaman who shall have been employed on such vessel since she was last entered at any port of the United States; such sum such master or owner may collect and retain from the wages of such seamen."

"Sec. 4803. The several collectors of the customs shall respectively deposit, without abatement or reduction, the sums collected by them under the provisions of law imposing a tax upon seamen for hospital purposes, with the nearest depositary of public moneys, and shall make returns of the same, with proper vouchers, monthly, to the Secretary of the Treasury, upon forms to be furnished by him. All such moneys shall be placed to the credit of 'the fund for the relief of sick and disabled seamen;' of which fund separate accounts shall be kept in the Treasury. Such fund is appropriated for the expenses of the Marine-Hospital Service, and shall be employed, under the direction of the Secretary of the Treasury, for the care and relief of sick and disabled seamen employed in registered, enrolled, and licensed vessels of the United States."

This statute clearly does everything that is charged against the statute at bar. It creates liability without fault, since it obligates the master or owner of every vessel of the United States to pay into a given fund, controlled by the Government, a fixed sum for the

benefit of sick and disabled seamen, regardless of the fact whether or not the vessel of the master or owner making the payment has any sick or disabled seamen who take advantage of the fund; and it takes the property of one to pay the obligations of another, since the fund is disbursed in the cure of sick and disabled American seamen generally, regardless of the fact whether or not the expense of their cure exceeds the sum paid in by the master or owner of the vessel from which they came. Whatever may be said as to the foundation of the liability of the master or the owner of a vessel, or the vessel itself, to answer for the expenses of the cure of sick and disabled seamen while in service on the ship, the foundation of this liability is purely statutory; and, if the objection that is made to the present statute were sufficient to condemn it, the statute is in violation of the fifth amendment to the Constitution of the United States. The statute had its inception in the act of Congress of July 16, 1798 (1 Stats. at Large, 606), and was on the statute books for nearly 100 years, during which time it was continuously enforced. It is true our attention has been called to no case where the statute was directly attacked; but there are numerous cases in which it has been specifically mentioned and given. force, and it would seem that, if it were thought inimical to the Constitution, it would not have escaped the attention of the astute counsel whose client's interests were adversely affected by it. (Buckley v. Brown, Fed. Case, No. 2092; Reed v. Canfield, Fed. Case, No. 11641; Peterson v. The Chandos, 4 Fed. 645; Holt v. Cummings, 102 Pa. St. 212, 48 Am. Rep. 199. See, also, 3 Opinions of Attorneys General (U. S.) 683; 13 Opinions of Attorneys General (U. S.) 330.)

Statutes making railroad corporations absolutely liable, without regard to negligence, for injuries to property caused by fires escaping from their locomotive engines, are clearly statutes creating liability without fault,

yet these statutes have been upheld by all the courts of the States in which they have been enacted, as well as by the Supreme Court of the United States. (Chapman v. Atlantic & St. Lawrence R. Co., 37 Me. 92; Sherman v. Maine Cent. R. Co., 86 Me. 422, 30 Atl. 69; Hooksett v. Concord R., 38 N. H. 242; Smith v. Boston & Maine R., 63 N. H. 25; Lyman v. Boston & Worcester R. Corp., 4 Cush. 288; Pierce v. Worcester & Nashua R. Co., 105 Mass. 199; Rodemacher v. Milwaukee & St. P. R. Co., 41 Iowa 297, 20 Am. Rep. 592; Mathews v. St. Louis & San Francisco R. Co., 121 Mo. 298, 24 S. W. 591, 25 L. R. A. 161; Emerson v. Gardiner, 8 Kans. 452; Jensen v. South Dakota Cent. R. Co., 25 S. Dak. 506, 127 N. W. 650; St. Louis & San Francisco R. Co. v. Mathews, 165 U. S. 1; Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96.)

Other statutes are those providing that any landlord who knowingly leases his premises for saloon purposes shall be liable for losses resulting from intoxication caused by the sale of liquor by his lessee. Such a statute was formerly in force in this State, and was given effect by this court. (Delfel v. Hanson, 2 Wash. 194, 26 Pac. 220; Burkman v. Jamieson, 25 Wash. 606, 66 Pac. 48.) And in Bertholf v. O'Reilly, 74 N. Y. 509, 30 Am. Rep. 323, the constitutionality of a like statute was maintained in an opinion by Judge Andrews, renowned for his ability and learning. In the course of his opinion the learned judge noted the fact that the liability of the landlord could not be sustained on the theory that such liability was a condition of a privilege granted by the statute, but rested the decision on the principle that the State, under its police power, could impose upon the landlord liability for the acts of his tenants. In the course of the opinion this language was used:

"And the act of 1873 is not invalid because it creates a right of action and imposes a liability not known to the common law. There is not such limit to legislative

power. The legislature may alter or repeal the common law. It may create new offenses, enlarge the scope of civil remedies, and fasten responsibility for injuries upon persons against whom the common law gives no remedy. We do not mean that the legislature may impose upon one man liability for an injury suffered by another, with which he had no connection. But it may change the rule of the common law, which looks only to the proximate cause of the mischief, in attaching legal responsibility, and allow a recovery to be had against those whose acts contributed, although remotely, to produce it.

*

"The liability imposed upon the landlord for the acts of the tenant is not a new principle in legislation. His liability only arises when he has consented that the premises may be used as a place for the sale of liquors. He selects the tenant, and he may, without violating any constitutional provision, be made responsible for the tenant's acts, connected with the use of the leased property."

Statutes imposing a liability upon fire insurance agents, based upon the amount of the insurance effected by them, for the benefit of a fund to care for and cure sick and injured firemen, have been upheld in the States of New York and Illinois. (Fire Department v. Noble, 3 E. D. Smith (N. Y.) 440; Fire Department v. Wright, 3 E. D. Smith (N. Y.) 453; Exempt Fireman's Fund v. Roome, 29 Hun 391, 394; Firemens Benevolent Ass'n v. Lounsbury, 21 Ill. 511, 74 Ann. Dec. 115.) Clearly these are statutes creating liability without fault. A similar statute relating to agents of foreign fire insurance companies was upheld in Wisconsin. (Fire Department v. Helfenstein, 16 Wis. 136.)

The statute of Nebraska makes a railroad company liable in damages for injuries sustained by a passenger regardless of the question of negligence on the part of the company, except where the injury is caused by the

passenger's criminal negligence, or by his violation of some express rule of the company, actually brought to his attention. This statute was upheld against a challenge on the ground that it violated the due process of law clauses of the State and Federal constitutions, by the State court, in Chicago, R. I., etc., R. Co. v. Zernecke, 59 Nebr. 689, 82 N. W. 26, 55 L. R. A. 610, and by the Supreme Court of the United States in Chicago, R. I., etc., R. Co. v. Zernecke, 183 U. S. 582. The Supreme Court of the United States, vindicating the statute against the attack made upon it, used the following language:

"In Omaha & R. V. R. Co. v. Chollette, 33 Nebr. 143, the words of the statute exempting railroad companies from liability, 'where the injury done 'arose from the criminal negligence of the persons injured,' were defined to mean 'gross negligence,' 'such negligence as would amount to a flagrant and reckless disregard' by the passenger of his own safety, and amount to a 'willful indifference to the injury liable to follow.' This definition was approved in subsequent cases. It was also approved in the case at bar, and the plaintiff in error, it was in effect declared, was precluded from any defense but that of negligence as defined, or that the injury resulted from the violation of some rule of the company by the passenger brought to his actual notice, and the company, as we have said, was not permitted to introduce evidence that the derailment of its train was caused by the felonious act of a third person. The statute, thus interpreted and enforced, it is asserted, impairs the constitutional rights of plaintiff in error. The specific contention is that the company is deprived of its defense, and not only declared guilty of negligence and wrongdoing without a hearing, but, adjudged to suffer without wrongdoing, indeed even for the crimes of others, which the company could not have foreseen or have prevented.

"Thus described, the statute seems objectionable.