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Opinion of the Court.

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to do indirectly, through the charters granted to railroads, if defendant's contention be true. When it was demonstrated that, although the railroads exercised every precaution in the construction of their engines, the choice of their operatives, and clearing their rights of way of all combustibles, still fire was emitted from their engines, and the citizen's property burned, notwithstanding his efforts to extinguish it, and notwithstanding he had in no way contributed to setting it out, it is perfectly competent for the State to require the company who set out the fire to pay his damages.” “The organic law of the State prescribed, before defendant obtained its charter, that 'the exercise of the police power of the State shall never be abridged, or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals, or the general well being of the State.' Constitution of Missouri, art. 12, sec. 5. Let it be conceded, for it is true, that, prior to the enactment of section 2015, by the decisions of this and other courts, defendant was only liable for negligence in setting out fire; is it to be concluded that the legislature is powerless to enact laws which will give ample protection to citizens against fires? Most certainly not. Fire, as one of the most dangerous elements, has ever been the subject of legislative control. It ought not to excite surprise among a people, the great body of whose laws had their origin in England, that those who set out fires which destroy the property of others should be held absolutely responsible for them. Such was the ancient common law, before any statutes were enacted” --quoting Rolle's Abridgment, before cited. “Under ordinary circumstances, this was thought to be a harsh rule, and it was not generally adopted by the courts of the several States; but the question we are discussing is not what the courts have generally regarded as the reasonable rule, but what is the power of the lawmaking power to adopt as a correct one." 121 Missouri, 315-317.

Similar statutes have also been enacted, and held to be constitutional, in Colorado, and in South Carolina. Colorado Territorial Stat. January 13, 1874, $ 3, Laws of 1874, p. 225; Gen. Laws of 1877, art. 2237, $ 3; Gen. Stat. of 1883, SS 1037,

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Opinion of the Court.

2798; Union Pacific Railway v. De Busk, 12 Colorado, 294; South Carolina Gen. Stat. of 1882, § 1511; McCandless v. Richmond & Danville Railroad, 38 So. Car. 103.

In Milwaukee & St. Paul Railway v. Kellogg, 94 U. S. 469, in Northern Pacific Railroad v. Lewis, 162 U. S. 366, and in Eddy v. Lafayette, 163 U. S. 456, in which it was assumed that negligence on the part of the defendant must be proved, the action was at common law, unaffected by any statute. And the statutes of some States make negligence an essential element in the liability of a railroad company for injuries by fire from its engines. 1 Thompson on Negligence, 171.

The statute of Alabama of February 3, 1877, c. 39, which was held to be unconstitutional in Zeigler v. South & North Alabama Railroad, 58 Alabama, 594, cited by the plaintiff in error, was one providing that all corporations or persons, “owning or controlling any railroad in this State, shall be liable for all damages to live stock or cattle of any kind, caused by locomotives or railroad cars." Whatever may be thought of the correctness of that decision, no question of liability for fire was before the court, nor was any reference made to the statutes or decisions of other States upon this subject.

In each of the cases in Arkansas, cited by the plaintiff in error, the decision was that a statute of the State providing generally that, “all railroads, which are now or may be hereafter built and operated, in whole or in part, in this State, shall be responsible for all damages to persons and property done or caused by the running of trains in this State,” was not intended by the legislature to make the railroad company responsible for all damages, without regard to negligence, but only to shift the burden of proof upon the defendant. Arkansas Stat. February 3, 1875, Mansfield's Digest, $ 5537; Little Rock & Fort Scott Railway v. Payne, 33 Arkansas, 816; Tilley v. St. Louis & San Francisco Railway, 49 Arkansas, 535. The court, in the first of those cases, while expressing an opinion that " it was not within the province of the legislature to divest rights by prescribing to the courts what should be conclusive evidence,” impliedly admitted, or at least cautiously abstained from denying, the validity of statutes like that now

Opinion of the Court.

in question, by saying: “In Massachusetts, by statute, railroad companies are made absolutely liable for injuries by fire · communicated from their engines; but, in compensation, are given an insurable interest in any buildings along the route. The courts have sustained this law, but the nature of it is peculiar and exceptional, and the language too clear to admit of doubt." 33 Arkansas, 820.

The learning and diligence of counsel have failed to discover an instance in which a statute, making railroad companies absolutely liable for damages by fire communicated from their locomotive engines to the property of others, has been adjudged to be unconstitutional, as to companies incorporated before or since its enactment.

This review of the authorities leads to the following conclusions :

First. The law of England, from the earliest times, held any one lighting a fire upon his own premises to the strictest accountability for damages caused by its spreading to the property of others.

Second. The earliest statute which declared railroad corporations to be absolutely responsible, independently of negligence, for damages by fire communicated from their locomotive engines to property of others, was passed in Massachusetts in 18+0, soon after such engines had become common.

Third. In England, at the time of the passage of that statute, it was undetermined whether a railroad corporation, without negligence, was liable to a civil action, as at common law, for damages to property of others by fire from its locomotive engines; and the result that it was not so liable was subsequently reached after some conflict of judicial opinion, and only when the acts of Parliament had expressly authorized the corporation to use locomotive engines upon its railroad, and had not declared it to be responsible for such damages.

Fourth. From the time of the passage of the Massachusetts statute of 1840 to the present time, a period of more than half a century, the validity of that and similar statutes has been constantly upheld in the courts of every State of the Union in which the question has arisen.

Opinion of the Court.

In this court, the constitutionality of such a statute has never been directly drawn into judgment. But it appears to have been assumed in Grand Trunk Railway v. Richardson, 91 U. S. 454, 472, already cited; and it rests upon principles often affirmed here.

As was said by Chief Justice Shaw, “It is a settled principle, growing out of the nature of well ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated, that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community.” Commonwealth v. Alger, 7 Cush. 53, 84, 85. This court has often recognized and affirmed the fundamental principle so declared ; and has more than once said: “Rights and privileges arising from contracts with a State are subject to regulations for the protection of the public health, the public morals, and the public safety, in the same sense as are all contracts and all property, whether owned by natural persons or corporations.” Slaughter-house Cases, 16 Wall. 36, 62; Patterson v. Kentucky, 97 U. S. 501, 505; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 672; New Orleans Waterworks v. Rivers, 115 U. S. 674, 682; Mugler v. Kansas, 123 U. S. 623, 665; Sweet v. Rechel, 159 U. S. 380, 398.

In Beer Co. v. Massachusetts, 97 U. S. 25, 33, in which a statute of Massachusetts, prohibiting the manufacture and sale of intoxicating liquors, including malt liquors, was held to be constitutional and valid, as applied to a corporation chartered long before by the State for the purpose of manufacturing malt liquors, this court, speaking by Mr. Justice Bradley, said: “Whatever differences of opinion may exist as to the extent and boundaries of the police 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 citizens, and to the preservation of good order and the public morals. The legislature cannot by any contract divest itself of the power to provide for these objects. They belong emphatically to that class of

Opinion of the Court.

objects which demand the application of the maxim, salus populi suprema lex; and they are to be attained and provided for by such appropriate means as the legislative discretion may devise. That discretion can no more be bargained away than the power itself.”

In Missouri Pacific Railway v. Humes, 115 U. S. 512, already mentioned, in which a statute of Missouri, making railroad corporations, not fencing their railroads, liable in double damages for injuries thereby occasioned to cattle and other animals, was held constitutional as applied to corporations existing before its enactment, this court, speaking by Mr. Justice Field, said: “If the laws enacted by a State be within the legitimate sphere of legislative power, and their enforcement be attended with the observance of those general rules which our system of jurisprudence prescribes for the security of private rights, the harshness, injustice and oppressive character of such laws will not invalidate them as affecting life, liberty or property without due process of law.” “The law of Missouri, in requiring railroad corporations to erect fences where their roads pass through, along or adjoining enclosed or cultivated fields or unenclosed lands, with openings or gates at farm crossings, and to construct and maintain cattle-guards, where fences are required, sufficient to keep horses, cattle and other animals from going on the roads, imposes a duty in the performance of which the public is largely interested. Authority for exacting it is found in the general police power of the State to provide against accidents to life and property in any business or employment, whether under the charge of private persons or of corporations.” “In few instances could the power be more wisely or beneficently exercised than in compelling railroad corporations to enclose their roads with fences having gates at crossings, and cattle-guards. The speed and momentum of the locomotive render such protection against accident in thickly settled portions of the country absolutely essential.” 115 U. S. 520, 522.

“The objection that the statute of Missouri violates the clause of the Fourteenth Amendment, which prohibits a State to deny to any person within its jurisdiction the equal protec

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