The fact that the liability is conditioned upon the application of a remedy as substantially provided in the act does not in any way affect the constitutionality if it is carried out as we suggest. The theory is that until the appraisal is made by the award provided there is no liability. See President, etc., V. and H. Canal Co. vs. Penn. Coal Co., 50 N. Y., 250; Wolff vs. Liverpool, L. and G. Ins. Co., 50 N. J. Law, 453; Hall vs. Norwalk Fire Ins. Co., 57 Conn., 105; Reed vs. Washington Ins. Co., 138 Mass., 572.
It has been intimated that the employer might be forced by such law, when the employe could not be so forced. We fail to see the force of this argument. The reason why the employers cannot be forced, if it is done equally, is that it deprives them of their liberty secured by the Fourteenth Amendment to the Federal Constitution to contract with respect to their labor as they see fit upon the theory that the liberty of contract is a property right; but neither the right of property of the employe nor the employer stands above the general public good. The general welfare was one of the principal purposes given in the Preamble of the Federal Constitution as the reason for the making of that constitution. It has been consistently and persistently upheld by the courts whenever needed for the protection of public good; as long as government exists it always will be so upheld. It is an absolute and final necessity. With this right the Federal Constitution was never intended to interfere except in the few instances limited by the Fourteenth Amendment; except as specifically limited the State has as much power as a foreign nation upon this question, and that amendment does not prohibit the exercise of such power to the extent that it is necessary in dangerous employments. See Mayor, Alderman, etc., of N. Y. vs. Miln, 11 Peters, 102; Lochner vs. N. Y., 198 U. S., 45. Other cases cited supra.
In this respect, too, we must not overlook the fact that the employer and the employe do not stand upon an equality in their negotiations with respect to dangerous employments. Stripped of political perplexities and personal prejudices and ambitions, the fact is, and must be recognized, that the fundamental reason for the interference by the State with respect to these matters rests upon the bare fact of the inequality of abilities of the respective parties to take care of their interests by reason of the peculiar situations. In the case of Harbison vs. Knoxville Iron Co., 53 S. W., 955, the Court said:
"The Legislature, as it thought, found the employe at a disadvantage in this respect, and by this enactment undertook to place him and the employer more nearly upon an equality. This alone commends the act, and entitled it to a place on the statute book as a valid police regulation."
The Supreme Court of the United States approved this opinion in Knoxville vs. Harbison, 183 U. S., 13.
In respect to the length of hours, dangerous labor may be required, it was said by the Supreme Court in Holden vs. Hardy, 169 U. S., 366:
"The Legislature has also recognized the fact, which the experience of Legislatures in many States has corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, but that their interests are, to a certain extent, conflicting."
Then in the case of Narramore vs. Cleveland, etc., Ry. Co., 96 Fed., 298, a case involving the rights of railway employes to have switches blocked, while Judge Taft was sitting on the Circuit Court of Appeals, he used this language:
"The only ground for passing such a statute is found in the inequality of terms upon which the railway company and its servants deal in regard to the dangers of their employment. The manifest legislative purpose was to protect the servant by positive law, because he had not previously shown himself capable of protecting himself by contract; and it would entirely defeat this purpose thus to permit the servant 'to contract the master out' of the statute."
An employe cannot successfully say to a railway president, "Run your business carefully or I will quit." This is a new right and not necessarily triable by jury in State courts. Am. vs. Morrison, 22 Minn., 178. See Minor vs. Happersett, 21 Wall., 162.