Opinion of the Court. referred to;" but found "from their relations, and the implied understanding upon the part of the receiver arising from them," that the sum claimed was due from the defendant to the petitioner. The Circuit Court sustained exceptions taken by the defendant to the master's report, and dismissed the petition. Its opinion, which is not made part of the record, is reported in 18 Fed. Rep. 484. The petitioner appealed to this court. The only matter in dispute is whether the defendant is liable to the petitioner, by way of rent, from February 1, 1881, to March 1, 1882, for anything more than has already been paid. There is no more ground for implying an assent by the defendant to the claim of the petitioner, than for implying an assent of the petitioner to the position of the defendant. When the petitioner demanded of the receiver of the defendant the like rent, as well as the like rate for terminal expenses, as was to be paid by the four companies, the receiver of the defendant declined to assent to the demand without an order of the court whose officer he was. The parties thereupon came to a temporary arrangement, by which the defendant agreed to pay the terminal expenses demanded, and the parties submitted the question of rent to the Circuit Judge as an arbitrator, and it was agreed that until his determination the defendant should continue to pay the same charges that it had paid before February 1, 1881. By the terms of that agreement, then, the amount of rent to be paid by the defendant was left uncertain and dependent upon the award of the judge. The affidavit of the petitioner's own witness shows that the judge, after some delay, declined to act as an arbitrator. The judge's view upon the subject appears in the opinion afterwards delivered by him in the Circuit Court, in which he said: "On looking into the question at the time, the judge was of the opinion that the contract which was demanded of the receiver by the Peoria and Pekin Union Company was oppressive in its terms, and doubted whether the receiver could afford to pay the prices then demanded; but at the same time, admitting that the Peoria and Pekin Company was the owner of the property, and that it had Syllabus. the right to prescribe on what terms the receiver should do his railroad business between Pekin and Peoria and in the latter city, stated that if the receiver would not accept the terms he could not be permitted to have the use of the property of the Peoria and Pekin Union Company." The judge, while he recognized the right of the petitioner, as owner of the property, to exclude the defendant from its use, if the defendant would not accept the petitioner's terms, in no way intimated that upon the facts of the case the defendant could be held to have accepted those terms. There is no evidence tending to show that the sum paid by the defendant is not all that its use of the property was fairly worth. The rent which each of the four companies, who owned all the stock of the petitioner company, agreed by express contract to pay that company, affords no test of what is a reasonable rent as between the petitioner and a stranger, like this defendant, who had no interest in its stock and was no party to that contract. As observed in the opinion of the Circuit Court, "The Peoria and Pekin Union Company was really owned by the other companies which made the agreement with it, and consequently they were substantially owners of the property of the Peoria and Pekin Company. It was substantially a contract, therefore, made by one party with itself, which it was insisted should be the test of payment by the receiver." Decree affirmed. MISSOURI PACIFIC RAILWAY COMPANY v. MACKEY. ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS. No. 218. Argued April 12, 1888. Decided April 23, 1888. The statute of Kansas of 1874, c. 93, § 1, p. 143, Comp. Laws Kansas, 1881, p. 784, which provides that “ Every railroad company organized or doing business in this State shall be liable for all damages done to any employé of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers, or other employés, to any person Statement of the Case. sustaining such damage," does not deprive a railroad company of its property without due process of law; and does not deny to it the equal protection of the laws; and is not in conflict with the Fourteenth Amendment to the Constitution of the United States in either of these respects. THE case, as stated by the court, was as follows: In 1882, the defendant below, the Missouri Pacific Railway Company, a corporation created under the laws of Kansas, operated lines of railway in the latter State. It also had control of two track-yards adjacent to the city of Atchison, designated respectively as the upper and lower yard, and it used two switch-engines in moving cars from one yard to the other. On the 11th of February of that year the plaintiff was in the service of the company as a fireman on one of these engines employed in transferring cars from one point to another in the upper yard, when it was run into by the other engine, owing to the negligence of the engineer of the latter. By the collision the right foot and leg of the plaintiff were so crushed as to necessitate amputation. For the damages thus sustained the present action was brought in a district court of the State. On the trial the defendant requested the court to instruct the jury, that if they found from the evidence that the plaintiff was injured through the carelessness of a fellow-servant he could not recover; which instruction was refused, and the defendant excepted. The court charged the jury as follows: "At the common law a master or employé could not be held liable for an injury sustained by one servant by reason of the mere negligence of a fellow-servant engaged in the same common employment, the negligence of the fellow-servant not being deemed in such case the negligence of the master, and such was the law of this State up to 1874; but at that time this rule of the common law was abrogated, so far as it related to railroad companies and their employés in this State, by a statute which reads as follows: "Every railroad company organized or doing business in this State shall be liable for all damages done to any employé of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employés to any person sustaining such damage.' Opinion of the Court. "This enactment so far modifies and changes the common law that a servant or employé of a railroad company may maintain an action against such railroad company for an injury received while in the line of his employment through the negligence of a fellow-servant or employé engaged with him in the same common work of the master or employer, unless such injured servant or employé has himself been guilty of negligence or want of ordinary care which has directly contributed to produce the injury complained of." To this charge the defendant excepted. The jury found a verdict for the plaintiff for $12,000, upon which judgment was entered. On appeal to the Supreme Court of the State the judgment was affirmed; and to review the latter judgment the case is brought here. Mr. John F. Dillon, with whom was Mr. Winslow S. Pierce, Jr., on the brief, for plaintiff in error. Mr. Thomas P. Fenlon, for defendant in error. Mr. John C. Tomlinson was with him on the brief. MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court. At the trial, and in the Supreme Court of the State, it was contended by the defendant, and the contention is renewed here, that the law of Kansas of 1874 is in conflict with the Fourteenth Amendment of the Constitution of the United States, in that it deprives the company of its property without due process of law, and denies to it the equal protection of the laws. In support of the first position the company calls the attention of the court to the rule of law exempting from liability an employer for injuries to employés caused by the negligence or incompetency of a fellow-servant, which prevailed in Kansas and in several other States previous to the act of 1874, unless he had employed such negligent or incompetent servant without reasonable inquiry as to his qualifications, or had retained him after knowledge of his negligence or incompe Opinion of the Court. tency. The rule of law is conceded where the person injured, and the one by whose negligence or incompetency the injury is caused, are fellow-servants in the same common employment, and acting under the same immediate direction. Chicago and Milwaukee Railway v. Ross, 112 U. S. 377, 389. Assuming that this rule would apply to the case presented but for the law of Kansas of 1874, the contention of the company, as we understand it, is that that law imposes upon railroad companies a liability not previously existing, in the enforcement of which their property may be taken; and thus authorizes, in such cases, the taking of property without due process of law, in violation of the 14th Amendment. The plain answer to this contention is, that the liability imposed by the law of 1874 arises only for injuries subsequently committed; it has no application to past injuries, and it cannot be successfully contended that the State may not prescribe the liabilities under which corporations created by its laws shall conduct their business in the future, where no limitation is placed upon its power in this respect by their charters. Legislation to this effect is found in the statute books of every State. The hardship or injustice of the law of Kansas of 1874, if there be any, must be relieved by legislative enactment. The only question for our examination, as the law of 1874 is presented to us in this case, is whether it is in conflict with clauses of the Fourteenth Amendment. The supposed hardship and injustice consist in imputing liability to the company, where no personal wrong or negligence is chargeable to it or to its directors. But the same hardship and injustice, if there be any, exist when the company, without any wrong or negligence on its part, is charged for injuries to passengers. Whatever care and precaution may be taken in conducting its business or in selecting its servants, if injury happen to the passengers from the negligence or incompetency of the servants, responsibility therefor at once attaches to it. The utmost care on its part will not relieve it from liability, if the passenger injured be himself free from contributory negligence. The law of 1874 extends this doctrine and fixes a like liability upon railroad companies, where injuries are sub |