It does not militate with this conclusion that the duty enjoined 'was simple. The committees of Congress believed it to be so, believed that the extent of relief to which Parish was entitled and the items of it had been established. The act in controversy was the expression of that belief. Its purpose was relief shown to be due from a problem already solved-not to start another problem. The duty enjoined required a reference in a sense to evidence, it may be, but it was to evidence *whose probative[138 force had been estimated and declared. It conduced to but one conclusion. That conclusion was stated by the Auditor of the War Department, following the direction of the statute, to be a balance in Parish's favor of $181,358.95. This amount represented the amount that Parish should have received over and above what he was paid by direct payment, judgment, or appropriation by Congress, and the balance due him under the rule in the Behan Case. The judgment of the Court of Appeals is reversed, and that court is directed to reverse the judgment of the Supreme Court, and direct the latter court to sustain the demurrer of relator to the return of respondent, and enter judgment as prayed for in the petition of relator. The following things, therefore, had been | reparation had arrived, and, that it might determined: The existence of a contract be quick and complete, referred the matter for the delivery of ice, quantity not men- to that officer who could best state the baltioned, at different points and at different ance due and pay it. prices. The quantity was afterwards fixed at 30,000 tons, and the contract made specific in every particular, quantity, qual ity, places of delivery, and prices. Performance was undertaken and 12,768 tons delivered. Then came the order of suspension, not revocation, it must be kept in mind, and Parish had to keep prepared. He was not permitted to fulfil his contract, he dared not be unprepared to do so upon any notice. This court, in Parish v. United States, supra, has portrayed the situation. The demand upon him was "an unequivocal demand," the court said, for 30,000 tons, and "to enable him to fulfil this demand required promptitude and diligence in securing the ice." The court states why. A moment's reflection on the situation shows us why. The ice was needed for the use of the armies in the field. It might be demanded at any time. The necessity for it might be imperative. If Parish could not have supplied it, this court said, the of137]ficers of the government would have procured at any price in the market, a price which would have been enormously enhanced by that very demand,-and Parish would have been liable for the difference between such price and the contract price. He was, therefore, this court said, "under an imperative necessity to prepare to fulfil this requirement." He realized his situation, and that he prepared against its contingencies was the finding of the court of claims, it was the declaration of Congress in the act of February 20, 1886, and DISTRICT OF COLUMBIA, Plff. in Err., it was the repeated declaration of the committees of Congress in their recommendation of the passage of the act in controversy. We see now the reason for regarding the opening clause of the act as its principal and dominating clause. We see now why his readiness to perform, the possession of the means of performance, and the offer of performance, were to be assumed by the Secretary, and the loss of profits only was to be determined. And the profits, the committees said, "were readily and easily ascertainable." Indeed, because they were, their calculation was referred to an executive officer. If to ascertain them involved an intricate judicial problem, the reference would have been to the judicial tribunais, for we cannot agree with the intimation of the government, that Congress As to the validity of class legislationsee notes to State v. Goodwill, 6 L.R.A. 621, would imagine that the court of claims and and State v. Loomis, 21 L.R.A. 789. this court were unable "to master the diffiAs to constitutional equality of privileges, culties" of that problem. The better sup-immunities, and protection-see note to position is that Congress regarded the con- Louisville Safety Vault & T. Co. v. Louistroversy as over, and that the time for ville & N. R. Co. 14 L.R.A. 579. Mr. Justice Moody took no part in the decision. V. ALICE BROOKE. (See S. C. Reporter's ed. 138–152.) Certiorari return waiver of defects. 1. Technical defects in the return of mu nicipal officers in a proceeding by certiorari to quash an alleged illegal drainage tax assessment are waived by failure to object NOTE. As to what constitutes due process of law-see notes to Kuntz v. Sump And tion, 2 L.R.A. 655; Re Gannon, 5 L.R.A. The reason fails and the rule does not by him are actually used by his employees. apply to cases where one set of workmen, He performs his full duty in that regard during the progress of the work, create a when he supplies them. dangerous condition, and that condition is permitted to exist, and another servant, in a different department of work, who had nothing to do with the creation of the dangerous condition, and who had no knowledge of it, is injured by it. American Bridge Co. v. Seeds, 11 L.R.A. (N.S.) 1041, 75 C. C. A. 407, 144 Fed. 605. Plaintiff's own negligence contributed to his injury. Ross v. Metropolitan Street R. Co. 113 Mo. App. 600, 88 S. W. 144; National BisThompson-Starrett Co. v. Fitzgerald, 79 cuit Co. v. Nolan, 70 C. C. A. 436, 138 Fed. C. C. A. 427, 149 Fed. 721. The rule in regard to dangers created by the progress of the work is stretched beyond all reasonable limits when the master is relieved from all consequences of a known continuing original danger because the progress of the work leads a servant who has no knowledge of the danger into the path of it. Grace & H. Co. v. Kennedy, supra; Western Electric Co. v. Hanselmann, 70 L.R.A. 765, 69 C. C. A. 346, 136 Fed. 564; Felice v. New York C. & H. R. R. Co. 14 App. Div. 345, 43 N. Y. Supp. 922; Lang v. Terry, 163 Mass. 138, 39 N. E. 802; McCauley v. Norcross, 155 Mass. 584, 30 N. E. 464; Grand Trunk R. Co. v. Tennant, 14 C. C. A. 190, 21 U. S. App. 682, 66 Fed. 922; Alaska Treadwell Gold Min. Co. v. Whelan, 12 C. C. A. 225, 29 U. S. App. 1, 64 Fed. 462. Mr. Clifford Histed argued the cause, and, with Mr. James H. Harkless, filed a brief for respondent: The impelling cause for the issuing of the writ of certiorari no longer existing, and the question which suggested its issue having already been finally determined, the writ should be now dismissed. Barrington v. Missouri, 205 U. S. 483, 51 L. ed. 890, 27 Sup. Ct. Rep. 582. In so far as it is claimed that the injury to the plaintiff petitioner was brought about by the other workmen upon the building, the doctrine of fellow servant exempts defendant from liability. Northern P. R. Co. v. Dixon, 194 U. S. 338, 48 L. ed. 1006, 24 Sup. Ct. Rep. 683; Northern P. R. Co. v. Peterson, 162 U. S. 346, 40 L. ed. 994, 16 Sup. Ct. Rep. 843; Baltimore & O. R. Co. v. Brown, 76 C. C. A. 482, 146 Fed. 24; Cole v. German Sav. & L. Soc. 63 L.R.A. 416, 59 C. C. A. 593, 124 Fed. 113. The duty of the master is not always to furnish the latest or even the most approved means, appliances, and tools. His duty is performed when the appliances which he does furnish are reasonably safe and calculated to perform the function for which they are designed. Neither is it the duty of the master to see, at his peril, that the appliances and means of safety furnished 6. Mr. Justice Day delivered the opinion of the court: This case is here upon a writ of certiorari to the United States circuit of appeals for the eighth circuit. The action was originally brought to recover for injuries received by Eugene C. Kreigh, petitioner, hereinafter called the plaintiff, while engaged in the employ of the respondent, Westinghouse, Church, Kerr, & Company, hereinafter called the defendant, superintending the construction of the brickwork in the erection of a brick and steel building for which the defendant was the contractor. The case was originally commenced in the district court of Wyandotte county, Kansas. On the application of the defendant it was removed to the United States circuit court for the district of Kansas. In the petition for the allowance of the writ of certiorari a question was made as to the jurisdiction of the Federal court, as it appears that at the time of the removal neither party was a resident nor citizen of the Federal district to which the case was removed, and neither of them a resident nor citizen of the state of Kansas. But it appears that no motion was made to remand for want of jurisdiction in the Federal court, and no question as to the jurisdiction was made until the case came here. In that state of the record the defect as to the jurisdiction being simply as to the district to which the suit was removed, the parties being citizens of different states, the objection as to the juris-[253 diction might be, and, in our opinion, was, waived, by making up the issues on the merits without objection as to the jurisdiction of the court. It is unnecessary to enlarge upon this feature of the case, as it is conU. S. 490, 52 L. ed. 904, 28 Sup. Ct. Rep. trolled by the recent cases of Re Moore, 209 585, 706; Western Loan & Sav. Co. v. Butte & B. Consol. Min. Co. 210 U. S. 368, 52 L. ed. 1101, 28 Sup. Ct. Rep. 720. The remaining question in the case concerns the correctness of the ruling of the circuit court, affirmed in the court of appeals, whereby, upon the conclusion of the evidence offered by the plaintiff, a demurrer thereto was sustained and the case taken from the jury. the single guy rope thereof hanging loose at the time. The testimony of the plaintiff tended to show that while he knew there was a derrick on the roof, he did not know of its method of operation further than he knew that it was operated by hand. He did not know the number of ropes attached to the boom, or whether there was a lever or not; he had not seen the boom in operation from the roof. At the time he was struck, when working on the north wall, he received no warning of the approach of the bucket, and had been there but a very short time when he was struck by the bucket and knocked to the ground. The testimony shows, and, in deciding a | the swing of the boom. The boom in use had question of this character, the view must be but the one guy rope, and that the testimony taken of it most favorable to the plaintiff, shows was used for hauling the loaded buckthat he was foreman of the bricklayers en- et over the top of the wall to the place gaged in the construction of a large brick where the load was dumped on the roof. building which the defendant, as principal The method of returning the bucket for lowcontractor, was erecting in Kansas City.ering was by a strong push of the boom, About the time of the plaintiff's injury a gang of workmen, also employees of the defendant, were engaged in cementing the roof of the building, the plaintiff and his men being engaged in laying the brickwork of the north wall of the building. The roofers were laying concrete upon the top of the roof. This was accomplished by means of a derrick with a rope and bucket attachment for raising the material, which was on the ground on the north side of the building, and which, by means of the derrick and motive power, was raised in the bucket suspended from the boom, or arm, of the derrick, to a height slightly above the roof, and then pulled inward by means of a guy rope attached to the boom, and, when the bucket was at the proper place, the bottom of it was opened and the concrete deposited upon the roof. Then, in order to put the bucket in position for lowering it, it was swung out over the north wall by means of an energetic push, carrying the end of the boom over the north wall and in position for lowering the bucket again. The work of bricklaying under the superintendence of the plaintiff had progressed to a height of about 40 feet in the north wall, and the plaintiff, superintending the erection of a scaffolding 254] for the men to work upon in the fur ther construction of the wall, was standing upon a plank near the wall, when the boom was swung outward by a push from the men operating it, and the plaintiff was struck by the heavy bucket attached to the rope from the end of the boom, and was knocked off the plank and fell a distance of 40 feet to the ground, and thereby severely injured. The testimony shows that the derrick used for the purposes stated was what is known as a "stiff-legged derrick," having a main staff supported by two stiff legs or braces with a swinging boom with hoisting rope attached to it. The derrick at the time was on the top of the roof, and was operated by an engine furnishing the power for hoisting the bucket in the manner we have already described. *In the amended petition it was [255 charged as grounds for recovery that "1. The defendants were careless and neg ligent in furnishing and operating a defective, improper, and unsafe derrick to raise, move, and lower said tub or bucket. "(a) Said derrick was so constructed and operated that there was no means of moving the arm thereof and said bucket or tub after it was emptied, horizontally to or over the north wall of said building, excepting by the employees of the defendants violently pushing the tub or bucket with sufficient force to cause it to clear the wall of the building, and also move with it said arm. "(b) Said derrick was so constructed and operated that there were no means of stopping or controlling it or the tub or bucket attached thereto after the bucket or tub was emptied and started toward and over the wall of said building. "(c) The ropes and pulleys on said derrick were defective, insecure, and improperly arranged and used. "2. The defendants were careless and negligent in causing and allowing said bucket to be violently pushed and swung against the plaintiff without notice or warning to him. "3. The defendants were careless and neg. gent in failing to supply and use a system of signals or warnings to notify persons on the building when the derrick, tub, or bucket were to be moved, raised, or lowered. The plaintiff introduced testimony tending to show that the usual method of con- The duty of the master to use reasonable structing such derricks was to provide them diligence in providing a safe place for the with two ropes, one attached on either side men in his employ to work in and to carry of the end of the boom, to be used to haul on the business of the master for which they it back and forth, and for the purpose of are engaged has been so frequently applied steadying its operation; or by the attach- in this court, and is now so thoroughly setment of a lever to the mast in such a way tled, as to require but little reference to the that a man operating the lever could control' cases in which the doctrine has been declared. Baltimore & P. R. Co. v. Mackey, 157 U. S. 72, 87, 39 L. ed. 624, 629, 15 Sup. Ct. Rep. 491; Union P. R. Co. v. O'Brien, 161 U. S. 451, 40 L. ed. 766, 16 Sup. Ct. Rep. 618; Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64, 48 L. ed. 96, 24 Sup. Ct. Rep. 24. The employee is not obliged to examine into the employer's methods of transacting 256]his business, and he may assume, in *the absence of notice to the contrary, that reasonable care will be used in furnishing appliances necessary to carrying on the business. Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64, 68, 48 L. ed. 96, 100, 24 Sup. Ct. Rep. 24. But while this duty is imposed upon the master, and he cannot delegate it to another and escape liability on his part, nevertheless, the master is not held responsible for injuries resulting from the place becoming unsafe through the negligence of the workmen in the manner of carrying on the work, where he, the master, has discharged his primary duty of providing a reasonably safe appliance and place for his employees to carry on the work, nor is he obliged to keep the place safe at every moment, so far as such safety depends on the due performance of the work by the servant and his fellow workmen. Armour v. Hahn, 111 U. S. 313, 28 L. ed. 440, 4 Sup. Ct. Rep. 433; Perry v. Rogers, 157 N. Y. 251, 51 N. E. 1021. Nevertheless, the duty of providing a reasonably safe place for the carrying on of the work is a continuing one, and is discharged only when the master furnishes and maintains a place of that character. As late as Santa Fe & P. R. Co. v. Holmes, 202 U. S. 438, 50 L. ed. 1094, 26 Sup. Ct. Rep. 676, it was declared: "The duty is a continuing one and must be exercised whenever circum stances demand it." Where workmen are engaged in a business more or less dangerous, it is the duty of the master to exercise reasonable care for the safety of all his employees, and not to expose them to the danger of being hurt or injured by the use of a dangerous appliance or unsafe place to work, where it is only a matter of using due skill and care to make the place and appliances safe. There is no reason why an employee should be exposed to dangers unnecessary to the proper operation of the business of his employer. Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64, 66, 48 L. ed. 96, 99, 24 Sup. Ct. Rep. 24, and cases there cited. As we have said, this case was taken from the jury when only the plaintiff's evidence had been introduced, and when the plaintiff had the right to have it submitted to the jury in its most favorable aspect if it fairly 257]tended to show liability on the *part of the master. The plaintiff's witnesses, experts in this field of operation, testified that the proper construction and management of such a derrick required that its boom should be rigged with two guy ropes instead of one, or that the mast should be provided with a lever by means of which the men in control could safely operate the boom. In that view we think it was a question for the jury to determine whether the operation of this derrick, which would swing the bucket into the field of operations where the plaintiff and others were constructing the wall, and might be injured unless the operation of the boom were properly controlled, was not attributable to faults of construetion and equipment, as well as to negligent operation at the time of injury. It is contended by the defendant that the boom could have been safely operated with one rope had the men used care in the operation thereof. But, in view of the testimony referred to, we think it was a question for the jury to determine whether the character of derrick furnished by the master discharged his obligation to furnish and maintain for the plaintiff and his associates a reasonably safe place in which to labor, and whether that kind of derrick was not of itself a dangerous instrumentality when operated where others were likely to labor in the course of their employment. If the negligence of the master in aling to provide and maintain a safe place to work contributed to the injury received by the plaintiff the master would be liable, aotwithstanding the concurring negligence of those performing the work. Grand Trunk R. Co. v. Cummings, 106 U. S. 700, 27 L. ed. los Coal R. Co. 178 U. S. 409, 420, 44 L. ed. 266, 1 Sup. Ct. Rep. 493; Deserant 7. Ceril1127, 1133, 20 Sup. Ct. Rep. 967, and cases there cited. It is further argued that the testimony shows that the injuries to the plaintiff were solely caused by the negligence of the men operating the derrick in giving it a sudden and strong push toward the north wall, where the plaintiff was standing when injured, and it is contended that the derrick could not have injured the plaintiff but for the negligent operation thereof by the [258 fellow servants of the plaintiff using the same. But here again we think the ques tion, was one for the jury to determine. Questions of negligence do not become questions of law, to be decided by the court, except "where the facts are such that all reasonable men must draw the same conclusion from them; or, in other words, a case should not be withdrawn from the jury unless the conclusion follows as matter of law that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish." Gardner v. lot is not alleged in her petition. But. acting laws which discriminate in their suppose the fact had been alleged; a prop operation between persons or things. If erty owner cannot urge against the drain. there is no express prohibition of such age system of the District that he had power, may prohibition be implied from our adopted a system of his own, and chal | form of government? Upon that proposi- · lenge a comparison with that of the Distion we need not express an opinion. If trict, and obey or disobey the law accord ing to the result of the comparison. The contention virtually denies any power in Congress to create a sytem of drainage to which a lot owner must conform. Finally, defendant in error attacks the validity of the law, and bases attack, to use her words, "upon certain salient vices in the act which are apparent on its face, of which the principal are "(a) The attempt to give controlling evidential effect to the mere existence of an improvement in case of improved prop erty, and to the ex parte certificate of the health officer in the case of unimproved property, thus violating the 'due process' clause of the Constitution. "(b) Because the act lacks the requisite uniformity, inasmuch as it undertakes to provide one law for property of residents and another for property of nonresident owners in said District. "(c) Because the act is not capable of universal enforcement, and creates unequal burdens. "(d) Because the act is incapable of uniform enforcement as against all property in the District of Columbia." prohibition exists, it must rest on all the powers conferred by the Constitution. This court, however, has just held, in the case of United States ex rel. Atty. Gen. v. Delaware & H. Co. 213 U. S. 366, ante, 836, 29 Sup. Ct. Rep. 527, that Congress may, in the exercise of the powers to regulate commerce among the states, discriminate between commodities and between carriers engaged in such commerce. And it was said that the assertion that "injustice and favoritism" might "be operated thereby," could "have no weight in passing upon the question of power." In the case at bar we are dealing with an exercise of the police power,-one of the most essential of powers, at times the most insistent, and always one of the least limitable of the powers of government. *However, the question of the power[150 of Congress, broadly considered, to discriminate in its legislation, is not necessary to decide, for, whether such power is expressly or impliedly prohibited, the prohibition can not be stricter or more extensive than the 14th Amendment is upon the states. That amendment is unqualified in its declaration that a state shall not "deny to any person The first objection was not expressed in within its jurisdiction the equal protection 149]the petition nor *made in the lower of the laws." Passing on that amendment, courts, and we might therefore decline to en- we have repeatedly decided-so often that tertain it. At best, defendant in error can a citation of the cases is unnecessary-that only be heard against "the evidential effect it does not take from the states the power And also that such clasof the mere existence of an improvement," be- of classification. cause her property does not come within sification need not be either logically apthe category of unimproved property. Her propriate or scientifically accurate. improvements are dwelling houses, and their problems which are met in the government mere existence indicated the necessity for of human beings are different from those drainage. That they may sometimes be involved in the examination of the objects vacant is unimportant. What rights ownof the physical world, and assigning them A wide range ers of lots differently improved or owners to their proper associates. of unimproved property may have is no of discretion, therefore, is necessary in legconcern of defendant in error. Her conten-islation to make it practical, and we have tion, therefore, that the act deprives her of due process of law, is unsound. The other objections expressed the same fundamental idea; to wit. that the act discriminates between resident and nonresident owners of property, and, because it does, it is void. The court of appeals yielded to this contention, following the authority of McGuire v. District of Columbia, 24 App. The often said that the courts cannot be made a refuge from ill-advised, unjust, or oppressive laws. Billings v. Illinois, 188 U. S. 97, 47 L. ed. 400, 23 Sup. Ct. Rep. 272; Heath & M. Mfg. Co. v. Worst, 207 U. S. 338, 52 L. ed. 236, 28 Sup. Ct. Rep. 114. In the light of these principles the contentions of defendant in error must be judged. The act in controversy makes a distinction in its provision between resident and nonresiThe defendant in error asserts this dis dent lot owners, but this is a proper basis crimination and argues its consequences at for classification. Regarded abstractly as some length, but does not refer to any pro- human beings, regarded abstractly as lot vision of the Constitution of the United owners, no legal difference may be observed States which prohibits Congress from en-between residents and nonresidents; but, D. C. 22, 65 L.R.A. 430. |