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of that statute (L. 1907, ch. 185) in Musco v. United Surety Co., 196 N. Y. 459, which was an action upon a bond given under it, and have held that “the regulation of the business of receiving deposits is plainly within the power possessed by the State to regulate the conduct of various pursuits when necessary for the protection of the public” (p. 465). The portion of the statute under consideration in the last cited case was plainly directed against an obvious evil which vitally affected the public welfare. The city of New York is the gateway through which this country admits each year thousands of

poor and ignorant immigrants who deal with individuals and firms engaged in the business of exchanging domestic for foreign money, receiving deposits and transmitting remittances to foreign ports. It is a business which may, and probably does, attract some irresponsible and mercenary adventurers. A law designed to regulate and safeguard

. such a business in a way which affects no constitutional property rights, is plainly within the police power of the State. That is all that was involved in the Musco Case, and that is the extent to which this court has passed upon the constitutionality of the New York statute (L. 1907, ch. 185). It need hardly be argued that a law passed under the guise of such a purpose, but having in fact no relation to it, and accomplishing nothing to make the business of receiving deposits more safe, would be as far beyond the sphere of the police

power as an amendment to the banking law requiring banks and bankers to protect their customers, to whom they pay moneys, against thefts or other physical losses thereof; or an amendment to the labor law which would compel the industrial employers to give each employee a vacation on full pay during two months of every year.

As to the cases of Noble State Bank v. Haskell, 219 U. S. 104, and Assaria State Bank v. Dolley, 219 U.S. 121, we have only to say that if they go so far as to hold that any law, whatever its effect, may be upheld because by the prevailing morality” or the strong and preponderant opinion” it is deemed to be greatly and immediately necessary to the public welfare," we can not recognize them as controlling of our construction of our own constitution. That the business of banking in the several States may be regulated by legislative enactment is too obvious for discussion. That the extent to which such State regulation may be carried must depend upon the difference in constitutional provisions is also plain. How far these late decisions of the Federal Supreme Court are to be regarded as committing that tribunal to the doctrine that any citizen may be deprived of his private property for the public welfare we are not prepared to decide. All that it is necessary to affirm in the case before us is that in our view of the constitution of our State the liability sought to be imposed upon the employers enumerated in the statute before us is a taking of property without due process of law, and the statute is, therefore, void.

The judgment of the appellate division should be reversed and judgment directed for the defendant, with costs in all courts.

Chief Justice Cullen, concurring, said:

I concur in the opinion of Judge Werner for reversal of the judgment appealed from. I concede that the legislature may abolish the rule of fellow-servant as a defense to an action by employee against the employer. Indeed, we have decided that in upholding the so-called Barnes Act. (Schradin v. N. Y. C. & H. R. R. R. Co.,




194 N. Y. 534.) I concede that the legislature may also abolish as a defense the rule of assumption of risk and that of contributory negligence unless the accident proceed from the willful act of the employee. I concede that in a work, occupation or business of such a nature that the legislature might prohibit its pursuit or exercise altogether, the legislature may prescribe terms under which it may be carried on. Plainly, this litigation does not present such a case. The legislature could not revoke the franchise it had previously given to the defendant to operate a railroad. (People v. O'Brien, 111 N. Y. 1.) I am not prepared to deny that where the effects of the work, even though prosecuted carefully, go beyond a person's own property and injure third persons in no way connected therewith, the person for whose account the work is done may be held liable for injuries occasioned thereby. I also concede the most plenary power in the legislature to prescribe all reasonable rules for the conduct of the work which may conduce to the safety and health of persons employed therein. But I do deny that a person employed in à lawful vocation, the effects of which are confined to his own premises, can be made to indemnify another for injury received in the work unless he has been in some respect at fault. I am not impressed with the argument that “the common law imposed upon the employee entire responsibility for injuries arising out of the necessary risks or dangers of the employment. The statute before us merely shifts such liability upon the employer.” It is the physical law of nature, not of government, that imposes upon one meeting with an injury, the suffering occasioned thereby: Human law can not change that. All it can do is to require pecuniary indemnity to the party injured, and I know of no principle on which one can be compelled to indemnify another for loss unless it is based upon contractual obligation or fault. It might as well be argued in support of a law requiring a man to pay his neighbor's debts, that the common law requires each man to pay his own debts, and the statute in question was a mere modification of the common law so as to require each to pay his neighbor's debts. It is urged that the legislation before us can be upheld on the decision of the Supreme Court of the United States in Noble State Bank v. Haskell, 219 U.S. 104. In support of the claim there is cited from the opinion the following: “It may be said in a general way that the police power extends to all the great public needs. (Camfield v. United States, 167 U. S. 518.). It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.” (p. 111.) It is possible that the doctrine of these two sentences would justify the statute before us and possibly any legislation, if only supported by a sufficient popular demand, but it is both unfair and unsafe to excerpt fragmentary sentences from the opinion of a court and interpret them apart from the context of the whole opinion. However that may be, the decision in the Noble Bank Case is not controlling upon this court in the construction of the constitution of our own State, and I am not disposed to accept it, at least, until it has received the approval of a majority of the court. I concur with Judge Werner that the act, as applicable to the case before us, can not be considered as an exercise of the power of the State to regulate corporations. The act is general, not confined to corporations, and even if it were, I

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think its effect would be a deprivation of property not authorized by the reserved power to regulate.

As to corporations hereafter formed, the question is very different. The franchise to be a corporation is not one inherent in the citizen, but

. proceeds solely from the bounty of the legislature, and for that reason the legislature may dictate the terms on which it will be granted and require the acceptance of the provisions of this act as a condition of incorporation. (Purdy v. Erie R. R. Co., 162 N. Y. 42; Minor v. Erie R. R. Co., 171 N. Y. 566; People ex rel. Schurz v. Cook, 110 N. Y. 443; S. C., 148 U. S. 397; Chicago, R. I. & Pac. R. Co. v. Zernecke, 183 U.S. 582.) Even in the case of existing corporations, the corporate existence of all those created since the constitution of 1846 may be revoked by the legislature, though the property rights of such corporations and their special franchises other than the one to be a corporation can not be impaired. (Const. Art. VIII, sec. 1; Lord v. Equitable Life Assur. Socy., 194 N. Y., 212.) The property and franchise would have to be managed by the owners as partners or tenants in common, and the legislature might require as a condition of the continued right to be a corporation that before the expiration of a reasonable period the provisions of the statute should also be accepted by them. They are in the condition of a tenant at will who, when the landlord raises the rent, must either comply with his terms or, after the expiration of a reasonable time prescribed by a notice to quit, surrender his rights under the lease. But individual citizens, following the ordinary vocations of life, asking no favors of the Government, whether a corporate or other franchise, but only the protection of life and property, which every Government owes to its citizens, and guilty of no fault, can not be compelled to contribute to the indemnity of other citizens who, by misfortune or the fault of themselves or others, have suffered injuries, except by the exercise of the power of taxation imposed on all, at least all of the same class, for the maintenance of public charity. Of course, I am not now referring to obligations springing from domestic relations.

EMPLOYERS LIABILITY— DEPARTMENTS OF LABOR-CONSTRUCTION OF STATUTE-Judd v. Letts, Supreme Court of California, 111 Pacific Reporter, page 12.-Frances Augusta Judd was employed by Arthur Letts as a saleswoman in his store, and at the close of her day's labor on February 21, 1908, she entered an elevator to go for her wraps on another floor of the building. By the negligence of the elevator operator, as was alleged, Miss Judd was injured, and she sued to recover damages for her injuries. Damages were awarded in the superior court of Los Angeles County, and this judgment was, on appeal, affirmed.

The decision turned on the construction of section 1970 of the Civil Code as amended in 1907 (Acts of 1907, ch. 97). The particular point involved was the meaning of the words “department of labor” as used in this statute. The view taken by the court is set forth in that portion of its opinion here reproduced, which was delivered by Judge Sloss September 8, 1910. Judge Sloss said, in part:

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Prior to 1907, the section read as follows: "An employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless the negligence causing the injury was committed in the performance of a duty the employer owes by law to the employee or unless the employer has neglected to use ordinary care in the selection of the culpable employee.” The amendment added this proviso: Provided, nevertheless, That the employer shall be liable for such injury when the same results from the wrongful act, neglect or default of any agent or officer of such employer, superior to the employee injured, or of a person employed by such employer having the right to control or direct the services of such employee injured, and also when such injury results from the wrongful act, neglect or default of a coemployee engaged in another department of labor from that of the employee injured, or employed upon a machine, railroad train, switch signal point, locomotive engine, or other appliance than that upon which the employee injured is employed, or who is charged with dispatching trains, or transmitting telegraphic or telephonic orders upon any railroad, or in the operation of any mine, factory, machine shop, or other industrial establishment.” While the proviso is framed in a manner that may leave a doubt concerning the proper relation of some of the phrases, we think it quite clear that the intent of the amendment was to take from all classes of employers the benefit of the fellow-servant rule, in cases where the employee injured and the one at fault are engaged in different departments of labor. The appellant argues that the concluding words of the proviso, "upon any railroad, or in the operation of any mine, factory, machine shop or other industrial establishment," qualify all the preceding clauses following the words, “and also.” So arguing, he claims that the Broadway Department Store is not a railroad, mine, factory, machine shop, or other industrial establishment, and that therefore the department of labor" exception has no application. There is no rule of grammatical construction which requires that the final clause be given the effect claimed. The interpretation thus urged would, we think, unduly limit the effect of the proviso.

This brings us to a consideration of the meaning of the phrase another department of labor.” The general rule exempting employers from liability for injuries sustained by one servant through the negligence of another servant in the same common employment has been declared, in the absence of any statute on the subject, by all the courts applying the doctrines of the common law. "The decisions are by no means in accord with respect to the fundamental reason or basis for the rule, and this phase of the subject has called forth the expression of a multitude of varying views. With a discussion of these we need not here concern ourselves. So, too, the courts have differed in their attempts to define the relation of common service. In the absence of any statutory limitation of the doctrine, there have been in some jurisdictions decisions denying to the employer exemption in cases where the injured employee and the one

whose negligence was asserted were not "consociated” in the same "department, or “line of employment. In this State no such modification had ever, prior to the amendment of section 1970, been recognized. That section, as it formerly stood, was regarded as declaratory of the common law (Congrave v. S. P. R. R. Co., 88 Cal. 360, 26 Pac. 175), under its terms, a common employment existed when each of the servants in question was employed in the same general business” (Mann v. O'Sullivan, 126 Cal. 6i, 58 Pac. 375, 77 Am. St. Rep. 149).

It would seem clear from these considerations that the purpose of the amendment to section 1970 was to modify, in the interest of those employed, the rigor of the rule which, in many cases, denied them relief for loss or injury sustained without their fault. The enactment is remedial in character, and should be construed liberally with a view to carrying out the object sought. Such appears to have been the tendency of the courts in dealing with similar statutes. The term "department of labor” used in our statute has failed to receive definition at the hands of the legislature, and must, therefore, be construed by the courts according to the ordinary significance of the words used, taken in connection with the apparent purpose of enactment.

It would be difficult, if not impossible, to formulate a definition of the phrase "department of labor” in such terms as to furnish an exact test by which to determine on any given state of facts, whether two employees are in different departments. In a general way it may be said that the question of identity of department is to be determined by inquiring, among other things, whether the employees in question are habitually associated or brought together in the performance of their duties, whether they are under the immediate direction and control of the same superior, and whether the duties of one have any relation to or connection with those of the other. Where the facts are disputed, or, if undisputed, are such as to reasonably permit contrary inferences, the jury should be permitted to determine whether the servants were engaged in the same department of labor. But, where the facts are such that reasonable minds could not differ as to the conclusion, the question becomes one of law for the court. In Morgan v. J. W. Robinson Co., 107 Pac. 695, the only case in which we have had occasion to consider the effect of the amendment of section 1970, the court had no hesitation in declaring that, as matter of law, the employees there involved (i. e., a carpenter engaged in the construction of a building and a man operating a freight elevator used in a retail store) were engaged in different departments of labor. We are satisfied that the same result must be reached on the facts here shown. The plaintiff's only duties were those connected with the sale of cloaks and suits. The operation of the passenger elevator was an entirely separate and distinct branch of service. There was no relation between the two beyond the fact that, at the close of her day's service, the plaintiff was permitted, for her convenience, to use the elevator in going from her place of work to the dressing room. It could not be said that she and the elevator boy were engaged in the same department of labor without perverting the ordinary meaning of words and destroying the effect of the amendment. The court rightly instructed the jury with reference to this point.

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