(147 N.E.)

Co. v. Washington, 243 U. S. 219, 37 S. Ct. 260, ciple from the civil liability act affording rem61 L. Ed. 685, Ann. Cas. 1917D, 642; Mid-edy to those injured by an intoxicated person dleton v. Texas Power & Light Co., 249 U. S. against the person who caused such intoxi152, 39 S. Ct. 227, 63 L. Ed. 527. Such a re- cation in whole or in part by sale or gift quirement for insurance by employers as se- of intoxicating liquor, which has been on our curity for personal injury to their employees statute books in some form since the enactseems to us a greater stretch of legislative ment of St. 1855, c. 215, § 22. G. L. c. 138, § power than is contemplated by the proposed 49. The bond required to be given by a bill. licensee under the law as to the sale of intox

Constitution was a security for the collection of such damages. That statute has been held to be constitutional. Howes v. Maxwell, 157 Mass. 333, 32 N. E. 152; Treasurer of Boston v. American Surety Co., 217 Mass. 507, 105 N. E. 373. In substance and effect that statute was compulsory insurance against injuries at least as remote from conduct made the basis of liability as that proposed in the present bill.

T

The statute G. L. c. 159, § 46, already re-icating liquors in force prior to the adoption quires, from the licensee of a motor vehicle of the eighteenth amendment to the federal operated upon a public way for the carriage of persons for hire under the special circumstances there described, a bond conditioned to pay any final judgment obtained against the principal named in the bond for causing the death of or injury to any person by reason of the negligence in the operation of such motor vehicle. The constitutionality of this and of like statutes has been upheld. Commonwealth v. Slocum, 230 Mass. 180, 119 N. E. 687; Packard v. Banton, 264 U. S. 140, The general principle which sustains this 44 S. Ct. 257, 68 L. Ed. 596, and cases therc aspect of the proposed bill is that, when the collected. The bonds thus required are broad general welfare of travelers on the highway enough in their conditions to include dam- in the opinion of the Legislature is threatages caused to other travelers upon the high-ened by and demands protection against a way as well as to passengers. While the specific evil, any rational means may be power of the Legislature over common car- adopted to remedy the evil. John P. Squire riers on highways is in general more com- & Co. v. Tellier, 185 Mass. 18, 69 N. E. 312, prehensive than over other travelers, these 102 Am. St. Rep. 322; Commonwealth v. decisions go far toward supporting the valid-Strauss, 191 Mass. 545, 78 N. E. 136, 11 L. R. ity of a statute requiring security from all A. (N. S.) 968, 6 Ann. Cas. 842. owners of motor vehicles against injury, caused by negligence in their operation, to other travelers on the ways.

The conclusion that this requirement may be made is supported in our opinion by the reasoning of Hendrick v. Maryland, 235 U. S. 610, 35 S. Ct. 140, 59 L. Ed. 385, and Kane v. New Jersey, 242 U. S. 160, 37 S. Ct. 30, 61 L. Ed. 222.

[5, 6] The extension of liability of the owner of a motor vehicle so as to include personal injuries caused by it while being negli gently operated by his express or implied con- It follows that the answer is "Yes," to sent, even though not by himself, his servant question 1 and its subdivisions (a) and (b). or agent, violates no constitutional provision. [7, 8] 2. We understand the inquiry preUnder the common law of this common- sented by the second question to mean, wealth mere ownership of a motor vehicle whether the selection of owners of motor without evidence that it is being driven by vehicles as alone required to provide securihis servant is not enough to fasten on the ty for injuries caused by such property vioowner liability for its negligent operation. lates the Constitution. The proposed statute Trombley v. Stevens-Duryea Co., 206 Mass. omits from such requirement the owners of 516, 92 N. E. 764; Phillips v. Gookin. 231 horse-drawn vehicles and of electric railMass. 250, 120 N. E. 691. Such a rule of the ways and steam railroads and the operators common law may be changed by statute. Dug- of motor vehicles who are not also owners. gan v. Bay State Street Railway, 230 Mass. Reasonable classification in the selection of 370, 380, 119 N. E. 757, L. R. A. 1918E, 680. subjects for legislation is always permissible Such extension of liability stands on the to the law-making power. It is only when same footing as the statute making the own- such classification is arbitrary or irrational er of a dog liable to a person injured by it that it comes in conflict with the Constitution. in double the amount of damages sustained What shall be included and what excluded even though the dog is in the possession and from the sweep of any statute demand the keeping of another person not the agent, exercise of discrimination, insight and sound servant or representative of the owner. The judgment. Railways and railroads have validity of that statute has never been doubt-been too long the objects of special laws to ed. G. L. c. 140, § 155; Galvin v. Parker, 154 be open to discussion as proper subjects for Mass. 346, 28 N. E. 244.

The proposed extension of liability and the requirement for security by the owner of a motor vehicle for compensation of personal injuries caused by it do not differ in prin

constituting special classes. The danger from horse-drawn vehicles is so small compared with that from motor vehicles as to afford a sound basis for classification. The omission of operators from the scope of the

statute, when not owners of motor vehicles, is not unlawful discrimination. It well may be thought that responsibility ought to be fastened upon the owner of the dangerous instrumentality. Burdensome liability is fastened upon railroads and some other corporations for causing the death of a human being, from which their servants and agents, through whose conduct such liability arises, are exempted. See Brooks v. Fitchburg & Leominster Street Railway, 200 Mass. 8, 86 N. E. 289, for a review of those statutes. The classification in the proposed statute is supported by the principle of numerous decisions. Commonwealth v. Libbey, 216 Mass. 356, 358, 103 N. E. 923, 49 L. R. A. (N. S.) 879, Ann. Cas. 1915B, 659; Young v. Duncan, 218 Mass. 346, 353, 106 N. E. 1; Bogni v. Perotti, 224 Mass. 152, 157, 112 N. E. 853, L. R. A. 1916F, 831; Ashley v. Three Justices of the Superior Court, 228 Mass. 63, 78, 116 N. E. 961, 8 A. L. R. 1463; Commonwealth v. Titcomb, 229 Mass. 14, 118 N. E. 328; Commissioner of Corporations & Taxation v. Co-operative League, 246 Mass. 235, 239, 140 N. E. 811.

land, 235 U. S. 610, 35 S. Ct. 140, 59 L. Ed. 385; Kane v. New Jersey, 242 U. S. 160, 37 S. Ct. 30, 61 L. Ed. 222. This omission would not be fatal to the proposed bill. Legislative classification may rest upon narrow distinctions.

[11] (b) The exclusion of motor vehicles owned by the commonwealth, or "by a corporation subject to the supervision and control of the department of public utilities, or by a street railway company under public control," cannot be denounced as arbitrary. It has a reasonable relation to the public safety. It does not destroy equality before the law nor create special privilege. It is a classification which may be thought to rest on sound judgment. This classification falls within the authority of Packard v. Banton, 264 U. S. 140, 44 S. Ct. 257, 68 L. Ed. 596.

[12] (c) The requirement that persons operating motor vehicles as common carriers of passengers for hire as described in G. L. c. 159, § 45, shall furnish both a liability bond or policy as security for the benefit of those suffering personal injury or entitled to recover damages for death and also a bond as The answer to the second question is "No." security for property damages, is not open [9] 3. The kind of security for the pay-to objection on constitutional grounds. Comment of liability arising from the operation mon carriers of passengers may be made a of motor vehicles on public ways within reasonable limits may be established by the General Court. An option to the owner of the motor vehicle between the deposit of cash or securities with a public officer and the furnishing of a surety bond or a policy of insurance offends no provision of the Constitution. The primary object is to afford security to the traveler injured on the public way through the negligent operation of the motor vehicle. The difference between these diverse methods of furnishing security is not an inequality of law in a constitutional sense. It is not distinguishable in principle from the option afforded by G. L. c. 90, § 21, c. 276, §§ 57, 79, for depositing cash or various securities in behalf of or by one charged with crime and desiring bail.

The answer to the third questior is, "Yes." [10] 4. (a) The proposed bill if enacted into law would not be unconstitutional in our opinion because it does not apply to nonresident owners or operators of motor vehicles not registered under our laws. The use of such motor vehicles may be found by the Legislature to be small in comparison with that of such vehicles registered in accordance with our laws. The expense of enforcing the law with respect to them may be found to be excessive. It may be that there are other difficulties in the way. Moreover, a classification including only motor vehicles registered under our statutes cannot be pronounced unreasonable. Nonresident owners of motor vehicles or motor vehicles not registered under our laws doubtless might be included within the law. Hendrick v. Mary.

class by themselves for special legislative treatment, as distinguished from other travelers on the ways. The right to use public ways for the purpose of common carriage of passengers for hire requires special license and may be made subject to special regulations. And among common carriers of passengers the classification here proposed is not open to attack on constitutional grounds. This point is settled by authority. Commonwealth v. Slocum, 230 Mass. 180, 119 N. E. 687; Packard v. Banton, 264 U. S. 140, 44 S. Ct. 257, 68 L. Ed. 596; Commonwealth v. Stodder, 2 Cush. 562, 48 Am. Dec. 679.

[13] (d) The bill is not unconstitutional because excluding from its benefits such employees of the owner of the motor vehicle or of any person responsible for its operation as are entitled to benefits under the Workmen's Compensation Act. Such employees are already afforded a kind of relief under the law, which, when applicable to the conditions of injury, well may be thought more advantageous, in certainty of payment and exoneration from expenses and delay incident to an action at law, than that provided by the proposed statute. There would be strong resemblance to inequality in permitting such employees a double remedy and double damages for the same injury.

[14] (e) No constitutional infirmity in the proposed bill arises from its omission to provide security for personal injury or death occurring on private property. The principle upon which the proposed statute rests is the protection of travelers upon public ways, Different questions of policy might be in

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volved with respect to injuries sustained on [ of judgment in which is secured by such deprivate property, such as diversity in dan- posit. gers and conditions, unlikeness in rights, risks and obligations, and other dissimilarities in circumstances.

There is an apparent inequality in these provisions in that, where a bond or policy is furnished by the registrant, a maximum security of $10,000 is available; while, where a deposit is made, that maximum security is $5,000. This inequality is apparent rather than real.

[15] (f) Restriction of security to claims for personal injuries and death and exclusion of those for damage to property violates no constitutional provision. Under article 10 of the Declaration of Rights, "Each individ- The main purpose of the statute is to afual of the society has a right to be protected ford security to those of the public who sufby it in the enjoyment of his life, liberty fer injury of the kind described. From that and property, according to standing laws." standpoint it is to be observed that the reBut the Legislature is not thereby prohibit-sult of these several provisions is that, in ed from making special provision for the security of life and limb, and leaving property to the protection afforded by the common law. Such classification is permissible to the legislative department.

case of a deposit of securities, the original judgment is satisfied at once out of such deposit; while in the case of a liability bond. the holder of the judgment may be obliged to bring an action against the surety company on the bond, or, in the case of an insurance policy, to enforce the liability of the insurance company.

No discussion is required to demonstrate that an instantly available fund of cash or its equivalent is better security for the satisfaction of a judgment than a bond or even an insurance policy. Moreover, sometimes, though rarely, surety companies or insurance companies become bankrupt. Some concession in face value may be made by the Legislature on account of the superior quality of cash security over any form of suretyship or insurance.

[16] (g) It is provided in the proposed act that an applicant for the registration of a motor vehicle must either (1) procure a motor vehicle liability bond or policy, or (2) deposit cash or securities with a public official. The liability bond or policy must furnish security for the satisfaction of all judgments against the obligor or insured arising from his motor vehicle on the public ways "to the amount or limit of at least $5,000 on account of injury to or death of any one person, and, subject to such limits as respects injury to or death of one person, of at least $10,000 on account of any one accident injuring more than one person." The applicant for The proposed statute further undertakes registry may, at his option, in place of pro- to provide that, in case of a deposit, there curing a motor vehicle liability bond or shall always be a minimum of at least $5,000 policy, deposit with the division of highways available as security. It may be that there of the department of public works "cash in is an overwhelming likelihood that registrants the amount of $5,000 or bonds, stocks or oth- making a deposit rather than furnishing the er evidences of indebtedness satisfactory to bond or policy will be possessed of other the division of a market value of not less financial resources, so that a personal judgthan $5,000 as security for the payment" ment or judgments against them aggregating in like manner of all such judgments "to $5,000 might be collectable, and so that furthe amount or limit of at least $5,000 on ther deposit would be made on demand. The account of bodily injury or death." Provi- General Court within reasonable limits may sion is made for the payment by the division judge of these matters and act accordingly. of any execution issued on such judgment, These provisions are somewhat analogous to but not in excess of $5,000, out of such cash the exemption of certain banks, banking inor the proceeds of sale of such securities. stitutions and loan companies from the proFurther provision is made that the "division visions of St. 1908, c. 605, § 6 (see now G. L. shall, whenever the amount of such deposit c. 140, § 114), respecting the making of small from any cause falls below" the specified loans, which was upheld as not obnoxious to amount, require at the option of the regis- the Constitution in Mutual Loan Co. v. Martrant the deposit of additional cash or securi- tell, 200 Mass. 482, 86 N. E. 916, 43 L. R. A. ties or a motor vehicle liability bond or pol- (N. S.) 746, 128 Am. St. Rep. 446, affirmed in icy. We interpret these provisions as to 222 U. S. 225, 32 S. Ct. 74, 56 L. Ed. 175, deposit of cash or securities in place of bond Ann. Cas. 1913B, 529, and in Dewey v. Richor policy to mean that whenever the pay-ardson, 206 Mass. 430, 92 N. E. 708. ment of an execution or executions or any other cause reduces such cash or securities below $5,000, new cash or securities shall be forthwith demanded and deposited in order to maintain the required sum of $5,000 as security. It also is provided that additional deposit of cash or securities may be required whenever an action is commenced, payment

The option to the registrant in this respect offends no constitutional guarantee. It is open to all registrants alike upon equal terms and without discrimination.

[17] (h) The reasons already stated are sufficient to show that no constitutional objection can be urged soundly on the ground that the bill is made applicable indifferently to

all classes and kinds of motor vehicles. The danger to the public safety may be thought by the Legislature to inhere in the operation of all such vehicles and to require the same kind of security with respect to all.

conclusion that the proposed statute would
be valid in this respect in the recent deci-
sions of Michigan Public Utilities Commission
v. Duke, 266 U. S. 570, 45 S. Ct. 191, 69 L.
Ed. -
where compulsory interstate com-
merce as a common carrier was sought to be
imposed upon one carrying on interstate com-
merce as a private person, nor in Buck v.
Kuydendall, 267 U. S. 45 S. Ct. 324,

327, 69 L. Ed., and Bush & Sons Co. v. Maloy, 45 S. Ct. 326, 327, 69 L. Ed. (both decided March 2, 1925), where the element of discretionary power altogether to exclude interstate commerce was involved, in all three decisions state statutes being stricken down.

We answer, "No," to the fourth question including all its subdivisions.

[18, 19] (i) Regulations of the kind prescribed by the proposed bill may apply to interstate commerce on the same terms as to domestic travelers. The states cannot enact laws for the specific end of regulating interstate commerce; but they may enact laws for the protection of the general public, against apprehended harm including that caused by those engaged in interstate commerce. The power of the several states to "provide for the establishment, maintenance, and control of public highways, turnpike roads" and like conveniences and necessities has been recognized in numerous decisions [20, 21] 5. The Legislature has large powof the United States Supreme Court. New ers in the regulation of the business of inOrleans Gas Co. v. Louisiana Light Co., 115 surance. That business is of a peculiar naU. S. 650, 661, 6 S. Ct. 252, 29 L. Ed. 516; ture. It affects large numbers of people and Fair Haven & Westville Railroad v. New Ha- is intimately connected with the general welven, 203 U. S. 379, 390, 27 S. Ct. 74, 51 L. Ed. | fare. The form of fire insurance policies 237. "Even interstate business must pay its has been prescribed by statute in this comway." Postal Telegraph-Cable Co. v. Rich-monwealth for many years. Regulation of mond, 249 U. S. 252, 259, 39 S. Ct. 265, 266 (63 L. Ed. 590). That proposition is apt to describe the burden which a state may place upon interstate commerce, in common with all other business and pleasure using highways, for the protection of the life and safety of other travelers. There is a great field for the valid exercise of the police power by the several states for the common welfare although, incidentally but not primarily and mainly, interstate commerce may be affected and regulated. See Commonwealth v. People's Express Co., 201 Mass. 564, 578, 88 N. E. 420, 131 Am. St. Rep. 416, for a collection of cases. Commonwealth v. O'Neil, 233 Mass. 535, 124 N. E. 482; Western Union Telegraph Co. v. Commercial Milling Co., 218 U. S. 406, 31 S. Ct. 59, 54 L. Ed. 1088, 36 L. R. A. (N. S.) 220, 21 Ann. Cas. 815; Missouri Pacific Railway v. Larabee Flour Mills Co., 211 U. S. 612, 29 S. Ct. 214, 53 L. Ed. 352; Atlantic Coast Line Railroad v. Georgia, 234 U. S. 280, 34 S. Ct. 829, 58 L. Ed. 1312; Price v. Illinois, 238 U. S. 446, 35 S. Ct. 892, 59 L. Ed. 1400. That principle has been given direct application to state statutes touching the operation of motor vehicles upon the highways of a state both by nonresidents and by those engaged in interstate commerce. "In S. the absence of national legislation covering the subject a state may rightfully prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehiclesthose moving in interstate commerce as well as others." Hendrick v. Maryland, 235 U. S. 610, 622, 35 S. Ct. 140, 59 L. Ed. 385; Kane v. New Jersey, 242 U. S. 160, 168, 37 S. Ct. 30, 61 L. Ed. 222.

the business of insurance may be supported both as an exercise of the police power for the common good and on the ground that corporations, foreign and domestic, being creatures of legislative power, are subject to reasonable control as conditions of transacting business. Policies of insurance indemnifying owners against losses due to the negligence of themselves or their servants in the operation or use of vehicles may be enforced for their own benefit by or in behalf of persons injured by such negligence. These principles are settled by numerous authoritative decisions. Lorando v. Gethro, 228 Mass. 181, 117 N. E. 185, 1 A. L. R. 1374; New York Life Ins. Co. v. Hardison, 199 Mass. 190, 85 N. E. 410, 127 Am. St. Rep. 478; Delaney v. Ancient Order of United Workmen, 244 Mass. 556, 566, 567, 138 N. E. 918; Lajoie v. Milliken, 242 Mass. 508, 522-523, 136 N. E. 419; German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 34 S. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915C, 1189; La Tourette v. McMaster, 248 U. S. 465, 467, 39 S. Ct. 160, 63 L. Ed. 362; National Union Fire Ins. Co. v. Wanberg, 260 U. S. 71, 43 S. Ct. 32, 67 L. Ed. 136; Merchants' Mutual Automobile Liability Ins. Co. v. Smart (decided March 2, 1925), 267 U. -, 45 S. Ct. 320, 69 L. Ed.

-.

A prohibition against cancellation by the insured or principal of a motor liability policy or bond during its term, except upon transfer, loss, theft or destruction of the motor vehicle or the substitution of a deposit of cash or securities, would not transcend legislative power. When once it is established that insurance may be made compulsory for the protection of the public safety, it follows as a necessary consequence There is nothing inconsistent with the that, so long as the ownership of the motor

(147 N.E.)