eral rule, interested parties raised questions attacking the general principles of the laws, thus securing adjudication in the customary order. The principal points will be considered in the light of the discussions of the various courts. DUE PROCESS OF LAW. Naturally, in the case of such wide departure from established procedure, doing away with trial by jury, questions of negligence, contributory negligence, and old methods of procedure generally, and establishing a system contemplating practically automatic compensation and placing the burden of industrial accidents on the industry rather than on any particular member of it, the question arose as to violations of the constitutional guaranties of due process of law. As to what constitutes due process of law the Ohio supreme court said (State v. Creamer, 85 Ohio St. 349, 69 N. E. 602): Perhaps no exact definition of due process of law has been agreed on. Judge Story defines it in his work on the Constitution, section 1935: "The right to be protected in life and liberty, and in the acquisition of property under equal and impartial laws, which govern the whole community. This puts the State upon its true foundation for the establishment and administration of general justice, justice of law, equal and fixed, recognizing individual rights and not impairing them." In Cooley on Constitutional Limitations, section 356, it is said: "Due process of law in each particular case means such an exercise of the government as the settled maxims of the law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the classes of cases to which the one in question belongs.' The court then adverted to the case of Ives v. South Buffalo Ry. Co. (201 N. Y. 271, 94 N. E. 431), in which the compulsory law of New York had been held unconstitutional by the court of appeals of that State. Of this the Ohio court said: The [New York] court held the law invalid, as imposing the ordinary risks of a business (which under the common law the employee was held to assume) on the employer. The court states one of the premises on which it proceeds as follows: "When our constitutions were adopted it was the law of the land that no man who was without fault or negligence could be held liable in damages for injuries sustained by another." But that rule was not of universal application. At common law one may sustain such relation to the inception of an undertaking that he will be held liable for negligence in the progress of the enterprise, even though he has no part or connection with the negligent act itself which caused the injury. The position in the line of causation which employers sustain in modern industrial pursuits is, of course, the basic fact on which employers' liability laws rest. * * * The Ohio statute was an elective one, differing in this respect from the law of New York, and while the acceptance of the compensation provisions involved the surrender of other forms of defense or relief, the court held that this act in no way violated due process of law. The elective laws of Massachusetts and Wisconsin were likewise upheld by the supreme courts of the respective States as against the charges that they had violated this principle, the Massachusetts court (In re Opinion of Justices, 96 N. E. 308) laying particular stress on the voluntary or noncompulsory features of the proposed law, and holding that there was nothing unconstitutional in its proposals and requirements; while the Wisconsin court (Borgnis v. Falk Co., 147 Wis. 327, 133 N. W. 221) considered the nature of the administration of the law by a board and not by a court, and the limitations of the powers of such board as contributing to keep the law within constitutional limits. In the principal opinion in this case it was pointed out that the law in question was enacted in response to an urgent public opinion in an attempt "to solve certain very pressing problems which have arisen out of the changing industrial conditions of our time." While declaring that constitutional commands and prohibitions must be implicitly obeyed so long as they exist, it was held that, in the absence of an express provision, conditions prevailing at the time of the adoption of the constitution and subsequent changes in social and economic affairs should be compared and weighed, and that no attempt should be made to hold back the legislation needed for present conditions by reason of earlier constructions and interpretations; and in general it may be said that statutes of optional acceptance are not open to the charge that they deprive one of property without due process of law, since it is of his own choice that he becomes subject to their provisions. (Evanhoff v. Industrial Commission of Oregon, 154 Pac. 106; Deibeikis v. Link-Belt Co. (Ill.), 104 N. E. 211; Hawkins v. Bleakley (U. S. D. C., Iowa), 220 Fed. 378; and cases cited above.) The Supreme Court of Washington had a different problem to meet, in that the law under consideration was one which proposed an exclusive remedy, the question of acceptance being determined by the statute and not left to the option of the employer. Under this act every employer to whom it applies is required to contribute to a fund from which payment is to be made for the injuries of employees of persons engaged in similar industries, such payments to be made without reference to the fault of the employer or the negligence of the employee, and also without reference to the fact that no workman in a contributing employer's establishment may be injured during the entire period for which the contributions are made. The court (State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156; 117 Pac. 1106) conceded that on first impression the objections contained in these facts constituted a persuasive argument against the validity of the act, but added that these conditions do not furnish an absolute test of such validity. * * * The test of the validity of such a law is not found in the inquiry Does it do objectionable things? but is found rather in the inquiry Is there no reasonable ground to believe that the public safety, health, or general welfare is promoted thereby? It is not meant here to be asserted that this [police] power is above the constitution, or that everything done in the name of the police power is lawfully done. It is meant only to be asserted that a law which interferes with personal and property rights is valid only when it tends reasonably to correct some existing evil or promote some interest of the State, and is not in violation of any direct and positive mandate of the constitution. The clause of the constitution now under consideration was intended to prevent the arbitrary exercise of power or undue, unjust, and capricious interference with personal rights; not to prevent those reasonable regulations that all must submit to as a condition of remaining a member of society. The court then cited a number of authorities as supporting the principles above laid down, many of the cases being those mentioned in the earlier discussions presented in the reports of investigating commissions of Minnesota, New York, and Ohio, already referred to (p. 165). The Montana statute was also a compulsory one, and the court in considering it (Cunningham v. Northwestern Improvement Co., 44 Mont. 180; 119 Pac. 562) cited and followed the Washington opinion and reached the conclusion that the general scheme of the act under consideration was well within the police power of the State. "If the people, represented by their legislature, are of opinion that the public interests demand that industrial insurance ought to be substituted in whole or in part for actions in wrongs, this court certainly can not say that they are in error." Later than the above is the discussion of this subject by the Supreme Court of New Jersey in its consideration of the elective compensation law of that State. (Sexton v. Newark District Telegraph Co., 86 Atl. 451.) This statute being elective, its operation can only follow from the choice of the persons affected by it, so that under the act neither the employer nor the employee is bound to accept its provisions unless he chooses to do so. "If he does not he certainly is not deprived of property without due process of law. If he does, then he has given the consent which the prosecutors contend he must give in order to be bound by the provisions of the second [compensation] section." With the exception of the Court of Appeals of New York, therefore, all the courts of last resort which passed upon the constitutionality of these earlier enactments held that they did not violate the constitutional rule as to due process of law. The same view was held by the Supreme Court of New York in its opinion in the Ives case, quoting from the opinion of the Supreme Court of the United States in the case Holden v. Hardy (169 U. S. 366; 18 Sup. Ct. 383): While the cardinal principles of justice are immutable, the methods by which justice is administered are subject to constant fluctuation; and the Constitution of the United States, which is necessarily and to a large extent inflexible and exceedingly difficult of amendment, should not be so construed as to deprive the States of the power to so amend their laws as to make them conform to the wishes of the citizens as they may deem best for the public welfare without bringing them into conflict with the supreme law of the land. On appeal, however, the foregoing opinion was rejected by the court of appeals. As to the liability fixed by the New York compulsory statute, it was said that it plainly constitutes a deprivation of liberty and property under the Federal and State constitutions which would not be valid unless justifiable under the police power. The economic argument was considered and the defects of the present system were recognized. We have already admitted the strength of this appeal to a recognized and widely prevalent sentiment; but we think it is an appeal which must be to the people and not to the courts. The right of property rests not upon philosophical or scientific speculations, nor upon the commendable impulses of benevolence or charity, nor yet upon the dictates of natural justice. The right has its foundation in the fundamental law. That can be changed by the people, but not by legislatures. If such economic and sociological_arguments as are here advanced in support of this statute can be allowed to subvert the fundamental idea of property, then there is no private right entirely safe, because there is no limitation upon the absolute discretion of legislatures, and the guaranties of the constitution are a mere waste of words. * * * It was further said that The argument that the risk to an employee should be borne by the employer because it is inherent in the employment may be economically sound, but it is at war with the legal principle that no employer can be compelled to assume a risk which is inseparable from the work of the employee and which may exist in spite of a degree of care by the employer far greater than may be exacted by the most drastic law. * * * In its final and simple analysis that is taking the property of A and giving it to B, and that can not be done under our constitutions. The cases cited in the New York State investigating commission's report and later in the Washington and other decisions, were referred to and distinguished as not supporting the claims made for them. The opinion, therefore, of the New York court of appeals and that given out by the Washington supreme court are in direct conflict. In referring to the New York opinion the Washington court said: ་ The act the [New York] court there had in review is dissimilar in many respects to the act before us and is perhaps less easily defended on economic grounds. The principle embodied in the statutes is, however, the same, and it must be conceded that the case is direct authority against the position we have here taken. We shall offer no criticism of the opinion. We will only say that, notwithstanding the decision comes from the highest court of the first State of the Union and is supported by a most persuasive argument, we have not been able to yield our consent to the view there taken. Following the declaration of unconstitutionality of the New York law of 1910 in the Ives case, the constitution of that State was amended, and a new law enacted. In Jensen v. Southern Pacific Co. (109 N. E. 600), the new compulsory law was attacked on the ground that it takes property without due process of law, the plaintiff relying largely on the ruling in the Ives case. Reference was made by the court to the fact that the constitution of the State had been amended since that decision, while the Federal Constitution had been so construed by the Supreme Court of the United States as to permit the enactment of such legislation as that under consideration, and the act was sustained. In California also the constitution has been amended since the enactment of its first compensation law, and a more comprehensive law of a compulsory type enacted. Much the same grounds of attack were used against this law as against that of New York just noted, the court upholding the law for practically the reasons assigned in the Jensen case above (Western Indemnity Co. v. Pillsbury, 151 Pac. 398). The Iowa statute, an elective one, was sustained in Hunter v. Colfax Consolidated Coal Co. (154 N. W. 1037), against a claim that the right of contract was interfered with by it and due process of law denied, practically on the grounds adopted by the Supreme Court of New Jersey in the Sexton case above. Referring to the requirement to insure risks or show solvency, the court said that as to any theoretical taking of property under the compulsory insurance system established by the law, such taking might be admitted, but in experience it disappears, since it is only for the insurance of the employer's own risk that the taking is done, and it has long been customary to carry such insurance; it is competent for the State to prescribe a more beneficial system for the parties interested, and the principle has been upheld by the Supreme Court of the United States (Noble State Bank v. Haskell, 31 Sup. Ct. 186). The question of due process was raised in the discussion of the Kentucky statute (Ky. State Journal Co. v. Workmen's Compensation Board (1914), 170 S. W. 1166). The State constitution forbids |