Louisville & N.R. Co. v. Baldwin

• Decision Date: 06 February 1889
• Citation: 5 So. 311,85 Ala. 619
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. BALDWIN.

5 So. 311

85 Ala. 619

LOUISVILLE & N. R. CO. v. BALDWIN.

Supreme Court of Alabama

February 6, 1889

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

Action by Dr. B. J. Baldwin against the appellant company to recover the sum of $1,300, "for services rendered by plaintiff for defendant in examination of defendant's employes for color-blindness." Plaintiff was one of the medical examiners appointed by the governor under the provisions of the act approved February 28, 1887, entitled "An act for the protection of the traveling public against accident caused by color-blindness and defective vision." Sess Acts 1886-87, p. 87. He sues to recover the fees prescribed and allowed by the third section of this act. The complaint contained only a special count, alleging his appointment as one of the medical examiners, the performance of services by him in the examination of defendant's employes, and refusal to pay the specified fees on demand. Defendant demurred to the complaint, on the ground that the statutory provision was unconstitutional and void; and, the demurrer being overruled, defendant filed a special plea, denying its liability for the fees claimed on the same ground. The court sustained a demurrer to this plea, and defendant declined to plead over. The rulings on demurrer are now assigned as error.

Jones & Falkner, for appellant.

Tompkins, Loudon & Troy, for appellee.

STONE C.J.,

The certificate exacted of certain employes of railroad companies, in reference to their power to distinguish colors, is certainly a legitimate exercise of the police power of the government. Its tendency is to increase the chances of safety in railroad travel, at best more or less hazardous. And it is certainly within the pale of legislative power to punish by fine or penalty any railroad company which intrusts the running of a train to the control of an agent or agents who are without the requisite evidence of qualification. This would be dealing with the conduct of the corporation,-its operation, by which it earns its income,-and it is right and proper that it should be made to pay the expense of such violation of its duty.

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 particalar 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 a 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 employes, 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 guaranties, and corporations are as much under their protection as natural persons are.

The case of Morgan v. Louisiana, 118 U.S. 455, 6 S.Ct. 1114, rightly interpreted, is not opposed to the views expressed above, and furnishes no warrant for the statute we are interpreting. The question in that case arose under the quarantine laws of Louisiana, enacted for the purpose of keeping out contagious diseases. To allow vessels to land in New Orleans, not having a bill of health free of contagious or infectious diseases, would be to greatly imperil the inhabitants of the city. The quarantine inspection or examination was required primarily for the safety of the city, but secondarily and largely for the benefit of the vessel. If found free from disease, she could at once proceed, complete her voyage, and come into port. The benefit of the inspection was thus largely the vessel's, and furnished a sufficient consideration to uphold the charge made against her.

In the case of Railway Co. v. Alabama, 128 U.S. 96, 9 S.Ct. 28, 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 employes is unconstitutional and void.

SOMERVILLE, J., (concurring.)

I concur in the opinion of the chief justice in this case. The law under 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. State, 85 Ala. 341, 4 South. Rep. 683; Smith v. Alabama, 124 U.S. 465, 8 S.Ct. 564; McDonald v. State, 81 Ala. 279, 2 South. Rep. 829. It may also, in the lawful exercise of this power, require the examination of railroad employes 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, 2 South. Rep. 638. 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 employe. It is mainly and primarily for his benefit; as much so as the personal license or diploma of a lawyer, physician, druggist, or any other person engaged in any other employment would be. It follows his person, unless restricted, anywhere in the territory of the sovereignty granting it, and in whosesoever employment the licensee may be engaged. It is only incidentally beneficial to the employer, so long as the employment may subsist. It is not the property of the employer, but of the employe. The debt incurred for the service rendered in making the examination is therefore the debt of the latter, not of the former. The law-making power can enact no edict by which a legal liability for the debt of one person can be fastened on another without due process of legal proceedings, according to the rules and forms established for the protection of private rights. It cannot take the property or money of one person, and give it to another, by naked transfer, nor impose a liability on one person for the private benefit of another, in the absence of some relation between the parties which brings the case within the sphere of the police power. There is a line where taxation may become spoliation. So laws, under the guise of police regulations, may reach the constitutional dead-line of property confiscation. It is impossible to forecast the logical results which may practically flow from the opposite conclusion. Farmers might as well be compelled to pay the licenses of commission merchants employed in sampling their cotton; druggists, for the diplomas of their clerks; the patrons of schools, for certificates of qualification required for teachers; patients, for the diplomas of doctors; or clients, for those of lawyers. No precedent known to us among the adjudged cases goes to this extent, or lays down any principle which, in our opinion, would support the constitutionality of the law under consideration, so far as it seeks to make the railroad companies liable for the expenses incurred in the examination of employes under the provisions of the act.

CLOPTON J., (dissenting.)

Appellee was appointed an examiner under the provisions of "An act for the protection of the traveling public against accidents caused by color-blindness and defective vision." The act disqualifies all persons affected with color-blindness and loss of visual power, one or both, to the extent defined therein, from serving on railroad lines in the capacity of locomotive engineer, fireman, train-conductor brakeman, gate-tender, or signal-man, or in any other position which requires the use or discrimination of form or color signals; and makes it a misdemeanor for any person to serve in any of the capacities mentioned without first having obtained a certificate of fitness in accordance with the provisions of the act. It requires the governor to appoint as examiners a suitable number of properly qualified medical men distributed throughout the state; authorizes any one of them to make the examination, and issue the certificate; and provides for prescribing the methods in which the examinations shall be made. The examiner is entitled to a fee of three dollars. The third section provides "that on and...