85 Ala. 619 | Ala. | 1888
Lead Opinion
Appellee was appointed an examiner under tbe provisions of “An act for the protection of tbe travelling public against accidents caused by color blindness and defective vision.” Tbe Act disqualifies all persons affected with color blindness and loss of visual power, one or both, to tbe extent defined therein, from serving on railroad lines in tbe capacity of locomotive engineer, fireman, train-
The police power, which has always been regarded of the utmost importance, and as essential to good order, extends to the protection of the lives, health, comfort, safety and quiet of all persons, and to the protection of all property. In respect to railroads, it has been said by a learned judge: “It maybe extended to the supervision of the track, tending switches, running upon the time of other trains, running a road with a single track, using improper rails, not using proper precaution by way of safety-beams in case of the breaking of the axle-trees, the number of brakemen upon the train with reference to the number of cars, employing
In McDonald v. State, 81 Ala. 279, the act “to require locomotive engineers in this State to be examined and licensed by a board to be appointed by the Governor for that purpose,” was brought before this court. The enactment declares unlawful, and makes a misdemeanor for the engineer of any railroad train in this State to drive or operate any train of cars or engine upon the main line or roadbed of any railroad in this State, which is used for the transportation of persons, passengers or freight, without first undergoing an examination, and obtaining a license as therein provided. The act requires the Governor to appoint a board of examiners, who are authorized to make the examinations, and to issue the licenses; and the examining member of the board is entitled to a fee of five dollars, to be paid by the applicant. It was contended, that the act is a regulation of commerce between the States, and contravenes the Constitution of the United States. Sokebville, J., speaking for the court, says: “In our opinion, it is a mere internal police regulation, which was competent to be provided for by the State, as a proper mode of preserving the safety of the travelling public, and other persons whose lives may well be imperilled by the negligence of ignorant and incompetent engineers.” The same statute was brought before the Supreme Court of the United States, in Smith v. Alabama, 124 U. S. 465, on error to this court, when the same constitutional objection was made. The validity of the act was maintained, as a valid exercise of the police power. Matthews, J. says: “It is properly an act of legislation, within the scope of the admitted power reserved to the State, to regulate the relative rights and duties of persons being and acting within its territorial jurisdiction, intended to operate so as to secure for the public safety of person and property.”
The statute now under consideration came before the same court in Nash., Chatt. & St. L. Ry. Co. v. Alabama, 128 U. S., also on error to this court. After ref erring to the.
Tbe legislature, having tbe power to supervise and regulate tbe business of railway companies, so far as may be needful to tbe safety of passengers, bad implied authority to provide suitable and efficient means of enforcing tbe regulations, and impose tbe expense on tbe companies. On this principle rest the provisions of many such statutes. Dealers in many classes of merchandise are required to submit them to inspection, and dealers using weights and measures to have them officially approved, and pay tbe fees of tbe officers. Steam vessels are required to submit to inspection, and pay tbe expense thereof. Tbe duties have often been imposed on railroad companies, to fence their roads, station flag-men at public crossings, and provide safeguards at places of danger,- at their own expense. Tbe statutes of the several States afford many other illustrations of tbe application of the same principle, tbe constitutionality of which has not been doubted.—B. & M. R. R. Co. v. Commissioners, 79 Me. 386; Morgan v. Louisiana, 118 U. S. 455; Thorpe v. Rutland R. R. Co., supra; Kansas Pacific Railway Co. v. Mower, 16 Kan. 573. Tbe supervision is not because of benefit to tbe parties whose business is supervised, but in tbe interest of tbe public good, health and safety. If tbe State has tbe authority to impose upon railroad companies tbe expense of inspecting their tracks and machinery, of
But, conceding the right to require payment of the expense of enforcing proper police regulations, counsel contend that the statute operates to create a State board of examiners, before whom every person, desiring to be employed in the specified capacities, whether or not in actual employment when the statute went into effect, shall appear and be examined, to the end that the State, in exercising its licensing power, may be informed what persons can be trusted to engage in certain occupations; and that the requirement that the railroad companies shall pay the expense, is the imposition of a tax under color of establishing police regulations, unauthorized by the taxing power. Taxation is not the purpose, nor ordinarily a legitimate exercise, of the police power. Its province is to supervise and regulate, in doing which a license fee may be exacted, to assist in the regulation, but should not exceed the necessary or probable expense of inspecting and regulating the business to which the power is extended, including the expense of issuing the license, and compensation to the officer required, and such incidental and additional expense as may be necessary to enforce the regulations.—Vanhook v. City of Selma, 70 Ala. 361; Cooley on Tax. 598. In establishing police regulations, a license fee may be exacted for the purpose of raising revenue; but, when done, the tax is not imposed under the police
If the operation of the act be, as counsel insist, to impose on the companies the fee for examining and licensing persons who are not in their employment, and who sustain no relation to them in the department of their business supervised, it goes beyond the scope and province of the police power, and falls within the provision of the Constitution, which prohibits private property being taken for private use, or depriving a person of property without due process of law. It is an essential constituent of a valid law, imposing upon the companies the expense, that it be restricted to the examination of persons who are to be emplóyed, or are in the service of the companies in some one of the specified capacities — agencies employed by them to carry on their business. As is apparent from the decisions referred to above, the requirement that the examinations shall be at the expense of the companies, is sustainable only as an authorized part of the system of supervision. By the statute, all persons, whether or not in employment at the time the act took effect, are required to obtain the requisite certificate, and, of consequence, to undergo an examination, before serving in any of the specified capacities. The fifth section, which allows the fee, does not prescribe in terms by whom it shall be paid. The third section specially extends the supervision to the business of the railroad companies, and fixes the time on and after which it shall be enforced. The provision is, not that all examinations required by the act shall be at their expense, but that “examinations and re-examinations at' the expense of the railroad companies shall be required under this law.” The intention is, to establish the manner of supervision, and the mode of enforcement by examinations
But it must be conceded, that tbe statute, fairly construed, operates to impose upon tbe companies tbe expense of examining those persons who were in their employment on and after tbe first day of June, without reference to their continuation in tbe service after tbe first day of tbe succeeding August, which time was allowed such employees to procure tbe requisite certificates. It was so construed in Baldwin v. Kouns, 81 Ala. 272. As has been said, its constitutionality can be maintained only so far as it is a legitimate exercise of tbe police power. Neither tbe persons then actually employed, nor the companies, incur tbe penalties prescribed by statute, until after tbe expiation of tbe time allowed such employees to obtain tbe certificates. Until then, tbe supervision, as to those who were in tbe employment of tbe companies, does not commence; until then, compulsory examinations of such persons can not be made. Under tbe police power, tbe expense of no examination can be imposed upon the companies, except of tbe agencies used in carrying on their business, when it becomes their duty to submit to supervision, and examinations may be compelled. So far as tbe statute requires examinations to be made prior to tbe first of August, 1887, at tbe forced expense of tbe companies, of persons in their employ on tbe first day of June preceding, without reference to their continuation in service after tbe first of August, it goes beyond a legitimate and constitutional exercise of tbe police power.
My brothers differ from this conclusion, bolding tbe provision of tbe statute under consideration unconstitutional, as not being a legitimate exercise of tbe police power. They will express their own views. I concur in tbe reversal of tbe judgment, on tbe ground, that tbe complaint does not aver facts sufficient to ■ show tbe liability of defendant for examinations bad between tbe first day of June and August.
Beversed and remanded.
Tbe certificate exacted of certain employees of railroad companies, in reference to their power to distinguish colors, is certainly a legitimate exercise of the-police power of tbe Government. Its tendency is to increase tbe chances of safety in railroad travel, at best more or less
The question presented by this record is different. It is not, whether the road is properly appointed, properly constructed, and properly equipped, but whether persons serving it, or seeking employment at its hands, are duly qualified for the service they propose to render. This is made by .the law one of the conditions upon which the particular line of duties can be undertaken by the applicant. It is a qualification he must possess before he can accept employment; and hence it is for his benefit that the examination is had, and the certificate given. The certificate, when given, is good for five years, and authorizes the holder of it to take employment, not alone from the one railroad company, but from any company that will employ him. On the other hand, it imposes on him no duty to continue in the service of the road on which the statute proposes to assess the expense of the examination. Can a distinction be drawn between the present case, and that of any other professional man, skilled laborer, or artisan, who is required to possess certain qualifications before entering upon certain lines of employment or service ? And if the expense of establishing the fact that the applicant possesses the necessary qualifications can be imposed on the employer, without his consent, in the one case, why not in every like case which requires tests of qualification ?
The statute under consideration attempts to impose on the railroad corporations, without their consent, and whether they will 'or not, the expense of the examination of certain classes of their employees, for the purpose of determining their fitness for the service. Is this not a mere legislative edict, that one person [artificial] shall, without his consent, pay for services rendered to another? This is not “due process of law.” Private property shall not be taken for private use. These are constitutional guarantees, and corporations are as much under their protection as natural persons are.
The case of Morgan v. Louisiana, 118 U. S. 455, rightly
In the case of N., C. & St. L. Railroad Company v. Alabama, 128 U. S. Rep., the question we have been considering was not, and could not be raised. Hence,.the remark of the eminent jurist who prepared the opinion in that case, is not an authoritative adjudication.
The majority of the court hold, that so much of the statute as imposes on the railroads the expense of the examination and certification of the qualification of its employees, is unconstitutional and void.
Concurrence Opinion
I concur in the opinion of the Oliief Justice in this case. The lawunder consideration, in my judgment, passes beyond the legitimate domain of the police power, and reaches ground forbidden by the prohibitions of the Constitution. It is not denied, that the legislature has the power to regulate the business of common carriers engaged in running railroads in this State, by a reasonable exercise of its police power, having in view the preservation of the public safety.—Smith v. The State, 85 Ala. 341; Smith v. Alabama, 124 U. S. 465; McDonald v. State, 81 Ala. 279; s. c., 60 Amer. Rep. 158. It may also, in the lawful exercise of this power, require the examination of railroad employees for color blindness, or other defects of vision, as' done in this case, and may require a certificate of personal qualification for the service in question—Baldwin v. Kouns, 81 Ala. 272. As to these propositions, there is no difference of opinion among the members of the court.
Such a certificate, however, is in the nature of a personal license to the employee. It is mainly and primarily for his benefit, as much so as the personal license or diploma of a.