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cussion of the manner in which objections to the constitutionality of a compensation act may be presented is more appropriate to an article dealing with the general topic of constitutional law.62 In at least one jurisdiction, however, the act was submitted to the highest court of the state for an opinion as to its constitutionality in advance of its passage; in another the question was raised by the state auditor in mandamus to compel the issuance of a warrant to the state treasurer in payment of an obligation incurred by the industrial insurance department; and in another by application by the compensation board for mandatory injunction to compel an employer to fill out and return blanks containing information required by the act.65 On the other hand, it has been held that the constitutionality of a compensation act will not be determined on an application by an injured employee for an injunction against its enforcement on the ground that the state industrial accident commission and the state treasurer threatened to deprive him of the right to a trial by jury and wrongfully claimed power to determine the amount

LRANS 162, AnnCas1912B 156 (effect of reserved power to alter or amend charters, also deprivation of right to trial by jury in connection with scale of compensation and settlement of disputes).

Tex.-Consumers' Lignite Co. V. Grant, (Civ. A.) 181 SW 202 (where the court of civil appeals refused to pass on constitutionality as unnecessary to the determination of a case, that question being pending in the supreme court).

Wis.-Borgnis V. Falk Co., 147 Wis. 327, 365, 133 NW 209, 37 LRA NS 489 ("so much of sec. 2394-16 [L. (1911) c. 50] as provides that the board or any member thereof, or any examiner appointed thereby, shall have power to issue subpoenas, obedience to which shall be enforced by contempt proceedings in the circuit court,' and clauses "which empower the Commission (1) to declare and enforce penalties against the employer for failure to perform certain orders of the board made pending hearing (section 2394-17); (2) to set aside or modify contracts of settlement previously made by the parties (sec. 2394-15); and (3) to regulate the amount of contingent attorney's fees and permit one claimant to make a contract which it may refuse to allow another to make (sec. 2394-22)").

See American Coal Co. v. Allegany County Comrs., 128 Md. 564, 98 A 143 (holding that Acts [1910] c 153, as amended by Acts [1912] c 445, providing a miners' and clay operators' relief fund, is not invalid merely because, if an employee elects to come under it, the employer, after he goes out of business, might be compelled to pay twice, since there is no provision for refund, that being a remote contingency which should not operate to invalidate an act supported by strong consideration of public justice); American Ice Co. v. Fitzhugh, 128 Md. 382, 97 A 999 (where the court did not pass on the constitutionality of the Maryland act for the reason that exceptions were not pressed and that it was the understanding of the court that another suit had been instituted to test the constitutionality of the act). 62. See Constitutional Law [8 Cyc 695]. 63.

In re Opinion of Justices, 209 Mass. 607, 96 NE 308.

64. State v. Clausen, 65 Wash. 156, 117 P 1101, 37 LRANS 466.

65. State Journal Co. v. Workmen's Compensation Bd., 161 Ky. 562, 170 SW 1166, LRA1916A 389, AnnCas 1916B 1273.

66. Evanhoff V. State Industrial Acc. Commn., 78 Or. 503, 154 P 106

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he might recover, nor on an interpretation of the statute as to its applicability to persons engaged in interstate commerce." The unconstitutionality of a statute because of the manner of its enactment cannot properly be raised by demurrer to a declaration in an action for injuries by an employee alleging that defendant had elected not to be governed by the act.68 Where the constitutionality of the workmen's compensation act, in its abolition of the unaccepting master's defense of assumption of risk, has repeatedly been decided by the highest court of the state, defendant master, in a servant's action for injury, cannot make an attack on its constitutionality a pretext for a direct appeal to that court which otherwise would not entertain jurisdiction.69

Propriety and policy of legislation.

In dealing with the constitutionality of compensation legislation, the courts will not, as a rule, concern themselves as to objections going to the wisdom, propriety, and policy of the statute involved,70 such matters being left to the legislative judgment"1 with which the judiciary is loath to interfere.72

(holding that the employee could test the constitutionality of the act by bringing his action either at common law or under the employers' liability act).

Norfolk, etc., R.

67. Connole v. Co., 216 Fed. 823. 68. Przykopenski v. Citizens' Coal Min. Co., 270 111. 275, 110 NE 336. 69. Strom v. Postal Tel. Cable Co., 271 Ill. 544, 111 NE 555.

[a] In Illinois a constitutional question is waived by an appeal to the appellate court. French V. Cloverleaf Coal Min. Co., 190 Ill. A. 400.

70. U. S.-Hawkins V. Bleakley, 220 Fed. 378.

Iowa.-Hunter v. Colfax Cons. Coal Co., 154 NW 1037.

Mich.-Mackin V. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49. Oh.-State v. Creamer, 85 Oh. St. 349, 97 NE 602, 39 LRANS 694.

R. I.-Sayles v. Foley, 96 A 340. "Whether the plan adopted is the most appropriate or best calculated to accomplish those objects are matters with which the court is not concerned and the law should not be held to be invalid unless clearly in violation of some provision of the constitution." State v. Creamer, 85 Oh. St. 349, 391, 97 NE 602, 39 LRA NS 694.

"Nearly all of the objections to this statute are argued from the standpoint of morals and propriety and policy. As of course those were questions for the Legislature. This statute may have, and no doubt does have, many objectionable features; but that it is a statute with right tendencies I have no doubt. And all such legislation is a matter of growth and development, and in the end when mature, as it ought to be and quite likely will be, beneficial results will be obtained. At all events, this legislation cannot bring forth worse results than we now have as to these matters by court procedure. And still further, and in no event, can courts condemn the mere policy or proprieties of the law."

Hawkins v. Bleakley, 220 Fed. 378, 382 (sustaining Iowa statute).

[a] Incentive to combinations of insurers.-"We do not find the argument persuasive that the act has induced insurance associations to combine and to place the rate of insurance at prohibitive figures. If proven, it would not be controlling because: First, if the rates are made prohibitive, the employer will ject the act, and there will be no insurance taken, which will automatically lead extortioners to mend their way to avoid killing the goose that lays the golden eggs; second, there

re

are more direct and better methods of dealing with combinations such as are here charged to exist, than declaring an otherwise valid act void, because it requires the employer to insure his liability." Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1059.

71. State Journal Co. V. Workmen's Compensation Bd., 161 Ky. 562, 170 SW 437, 1166, LRÁ1916A 389, AnnCas1916B 1273.

[a] Illustration.-"The counsel for appellant fiercely assail the purpose and operation of this act for many other reasons. They complain of the meager compensation it gives to the injured employe; that it deprives him of a jury trial; that employers are compelled to pay into this fund $1.25 as a premium on each $100.00 pay roll, and, as a result, only employers doing an extra hazardous business will take under it; that corporations whose operations are not extra hazardous will carry their own risks by the aid of indemnity companies, and by reason of which this compensation fund is liable to suffer depletion, and if an employe receives an injury, his compensation is doubtful. It is also claimed that, as this is a common fund, kept up by the contributions of employers, that they will grow careless in selecting their machinery, as well as in their operations, and that the lives and limbs of the employes will suffer greater risks and injuries. A sufficient answer to all this is, that these are matters addressed entirely to the wisdom of the Legislature and can be regulated as necessities may require." State Journal Co. v. Workmen's Compensation Bd., 161 Ky. 562, 574, 170 SW 437, 1166, LRA1916A 389, AnnCas 1916B 1273.

72. State v. Clausen, 65 Wash. 156, 211, 117 P 1101, 37 LRANS 466.

[a] Production of public and private abuses.-"The auditor also complains of the scheme adopted by the legislature for correcting the evil they have found to exist. It is said that the scheme is unduly cumbersome; that its administration will prove unnecessarily costly and burdensome to those whose interests are affected by it, and will lead to public and private abuses and consequent evils more dangerous to the state than the evil that it is sought to correct. But the courts are slow to inquire into the mere wisdom of a statute. This question is so preeminently one for the law-making branch of the government that the courts will interfere only where there be no two opinions as to the mischievous and evil tendencies of

can

Objections of this character are such as go to the propriety of payments to aliens and nonresidents73 or to the fairness of the compensation provided for.74

Particular features. Particular features of the various acts have been upheld generally in some of the cases without discussion of specific. constitutional objections,75 such as a provision allowing the employee to elect, in case of an injury occasioned by a third person, to recover against his employer under the act or to proceed against the wrongdoer and providing for the subrogation of the employer," a requirement that election must be made by the employee at the time he enters into a contract of hire whether he will claim his common-law right of action," a provision allowing a minor legally entitled to work the same power of contracting with reference to acceptance of the act as an adult,78

non

third

provisions rendering claims for attorneys' and physicians' fees subject to the approval of an industrial accident board," provisions allowing employers and employees to enter into substitute schemes for compensation in lieu of the compensation and insurance provided by the act, subject to the approval of the industrial commissioner, and requiring that if the substituted scheme provides for contribution by the employees it must confer benefits in addition to those required by the act commensurate with such contributions, the arbitration features,81 and the provisions fixing the specific compensation to be allowed.82 On the other hand, the provision of the original Illinois act authorizing the supreme court to issue a writ of certiorari for the review of the decisions of the industrial board was void as violating the constitutional limitation of the original jurisdiction of that court.8

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that a minor who is legally entitled
to work shall have the same power of
contracting for service as an adult
is objectionable, because it allows
the employer to decide whether the
law shall treat his minor employees
as adults. The objection seems to us
fanciful and elusive. There is no
claim that the legislature may not
endow minors with the right to
make contracts otherwise lawful,
and, if this be so, it seems to us
to be the end of the discussion. Af-
ter the minor is so endowed he be-
comes for the purposes of the act
an adult, or at least on the same
plane. No adult employee of a pri-
vate employer can elect to come
under the act unless his employer
has first elected to do so. So the
employer has the power to decide
whether any of his employees, in-
fant or adult, shall have the privi-
leges of the act if they continue to
work for him. This is practically
all there is of the matter, and we see
no substantial distinction between
the effect of the law upon the adult
and its effect upon the minor."
Borgnis v. Falk Co., 147 Wis. 327,
363, 133 NW 209, 37 LRANS 489.
Mackin V.
Detroit-Timkin
Axle Co., 187 Mich. 8, 153 NW 49.

the act." State v. Clausen, 65 Wash. | ployer under part 2, for injuries vision of the law which declares 156, 211, 117 P 1101, 37 LRANS 466. which occurred under circumstances 73. Western Metal Supply Co. v. also creating a liability against a Pillsbury, (Cal.) 156 P 491, 495. party. In case such third "It is urged that under the stat-party is also subject to the proviute the employer may be required to sions of part 2, the employee may make payments to alien and either recover from his employer the resident dependents, and that no pub- relief prescribed by the act, or may lic purpose cognizable by the Legis- bring an action against such third lature of this state is to be served party, but cannot proceed against both. If by requiring payments to such aliens he proceed against the and nonresidents. But this argu- third party, his recovery is limited ment is based upon altogether too to the relief prescribed by the act. narrow a view of the constitutional If he takes compensation from his limitations upon legislative action. employer under the act, the employer If it may reasonably be thought that becomes subrogated to his right of the best interests of the state, of the action against the third party and employers of labor, and of those may recover the aggregate amount employed, as well as of the public payable to the employee with costs, and reasonable atgenerally, are promoted by imposing disbursements In upon the industry or the public the torneys' fees. case such third burden of industrial accident-and party is not subject to the provisions some such theory lies at the bottom of part 2, the employee may maintain of all workmen's compensation stat- an action against him without waivutes (Western Indemn. Co. v. Pills- ing any rights against the employer bury, 170 Cal. 686, 151 P 398)-the and the damages recoverable are not residence and citizenship of the in- limited to the relief prescribed by jured workman, or (if he shall have the act; but if the employee recover met death) of his dependents, are from such third party, the employer factors entirely foreign to the dis- is entitled to deduct, from the comcussion. The Legislature has deter- pensation payable by him under the mined that the employment of labor act, whatever amount is actually rein given pursuits entails upon the ceived by the employee from the third party. employer certain responsibilities towards the persons performing the labor and those dependent upon them. There is no constitutional or rational ground for limiting the benefits of this legislative scheme to citizens or residents of this state. If the employment was such as to fall within the state's lawmaking jurisLegislature diction, the certainly had the power to pass laws operating uniformly upon all persons affected by such employment." Western Metal Supply Co. v. Pillsbury, supra. 74.

O'Connell v. Simms Magneto Co., 85 N. J. L. 64, 89 A 922. See Ross V. Erickson Constr. Co., 89 Wash. 634, 646, 155 P 153 (where the court said: "It may be asserted, without doing violence to the rules of logic or of law, that whatever sum is fixed for partial or total disability is theoretically the exact sum necessary to measure and compensate the wrong. The logic of our former decision in Davis-Smith v. Clausen, 65 Wash. 156, 117 P 1101, 37 LRANS 466, is that the admeasurement of damages in money for injuries to employees is within the police power of the state, and it is axiomatic that the court will not restrain or enlarge upon the exercise of that power. Nor will it substitute its judgment for that of the legislature upon any question of fact arising under it").

75. See cases in following notes. 76. Mathison v. Minneapolis St. R. Co., 126 Minn. 286, 296, 148 NW 71, LRA1916D 412 (where the court said: "The section of the act most vigorously assailed is section 33 (section 8229, G. S. 1913) which provides for cases in which the employee is entitled to compensation from his em

or

79.
In other words, if a
sum equal to or exceeding the com-
pensation payable under the act is
from
actually collected
the third
party, the employer is relieved from
liability, but if the sum actually col-
lected be less than the amount pay-
able under the act, he must make
good the deficiency, If, instead of
prosecuting an action against such
third party, the employee collects
compensation from his employer, the
employer becomes subrogated to the
rights of the employee against the
third party and may maintain an ac-
tion against him for the recovery of
the damages sustained by the em-
ployee, but, after reimbursing him-
self for the compensation payable to
the employee, and for the costs, at-
torneys' fees and expenses of col-
lecting the damages, the employer
must pay over to the employee any
surplus remaining of the amount
collected. We find nothing in these
provisions contravening any of the
provisions of the Constitution. They
apply to and bind only those who
have voluntarily accepted and agreed
to them").

77. Young v. Duncan, 218 Mass.

346, 106 NE 1.

78. Borgnis v. Falk Co., 147 Wis.
327, 133 NW 209, 37 LRANS 489.
See Herkey v. Agar Mfg. Co., 90
Misc. 457, 153 NYS 369 (holding that
the legislature may remove the dis-
ability of infancy and allow an infant
servant to elect whether to
ceed at common law or under the
Workmen's Compensation Act [Con-
sol. L. c 671).

pro

80. Hawkins v. Bleakley, 220 Fed. 378, 381 (where the court said of the Iowa act: "Many of the states for many years have had statutes fixing the liability with precision in cases of death, and in no instance has any court held such statute invalid. And why a statute cannot fix with certainty the damages to be allowed in case of the loss of an arm, leg, eye, other injury, is not perceived, and counsel fail to state any legal or constitutional objection thereto"). 81. Hawkins v. Bleakley, 220 Fed. 378, 382 (where with reference to the Iowa act the court said: "The Chicago, Burlington & Quincy Railroad Company for years had a scheme of insurance which, if resorted to by the injured employé, was a bar to recovery by an action in court. Finally that scheme was condemned by Iowa legislation, and the statute prohibiting it was sustained by the United States Supreme Court, affirming the Iowa Supreme Court in Chicago, etc., R. Co. v. McGuire, 219 U. S. 549, 31 SCt 259, 55 L. ed. 328, hereinbefore referred to. The insurance scheme was held lawful by the Iowa Supreme Court in a number of cases prior to the adoption of the legislation referred to. And now we have additional legislation allowing the very thing condemned by the prior legislation.

And so it is that no constitutional objection can be made to the latest legislation"); Shade V. Ash Grove Lime, etc., Co., 93 Kan. 257,

144 P 249.

[a] Reason for decision.-"Some 82. Shade v. Ash Grove Lime, etc., contention is made in the brief that Co., 93 Kan. 257, 144 P 249. minors cannot be treated in the same 83. Courter V. Simpson manner as adults, and that the pro- | Co., 264 111. 488, 106 NE 350.

Constr.

84

Miscellaneous objections. Apart from the usual and well defined objections to the constitutionality of legislation which will be discussed in the following paragraphs of this article, particular acts have been upheld as against the contention that they were not enacted in the manner prescribed by the constitution, ,85 that they interfere with interstate commerce,86 that they compel employers and employees to adjust their grievances without their consent, that they change the existing laws with respect to the mutual obligations of parent and child,88 or that they violate certain specific constitutional provisions, such as provisions guaranteeing a republican form of government,89 providing for a division of governméntal powers, securing to municipal corporations the right of local self-govern84. See infra §§ 8-27. 85.

87

90

See cases infra this note. [a] The Illinois act of 1911, L. (1911) p 315, was not passed in violation of Const, art 4 § 13, providing that every bill and all amendments thereto shall be printed before the vote is taken on its final passage. Nakwosas V. Western Paper Stock Co., 272 Ill. 138, 111 NE 515; Richardson v. Sears, 271 Ill. 325, 111 NE 85; Lauruszka v. Empire Mfg. Co., 271 Ill. 304, 111 NE 82; Frey v. KerensDonnewald Coal Co., 271 Ill. 121, 110 NE 824; Przykopenski v. Citizens' Coal Min. Co., 270 111. 275, 110 NE 336; Dragovich v. Iroquois Iron Co., 269 Ill. 478, 109 NE 999.

86. Stoll v. Pacific Coast SS. Co., 205 Fed. 169, 177.

"Congress having in no way legislated in the premises, at least so far as interstate commerce by water is concerned, the state has the right to enact laws incidentally affecting interstate commerce. This act does no more.' Stoll v. Pacific Coast SS. Co., supra.

87. Evanhoff v. State Industrial Acc. Commn., 78 Or. 503, 154 P 106. 88. Greene v. Caldwell, 170 Ky. 571, 186 SW 648.

89. State v. Mountain Timber Co., 75 Wash. 581, 135 P 645.

90. Evanhoff v. State Industrial Acc. Commn., 78 Or. 503, 154 P 106 (holding that L. [1913] c 112, creating a state industrial accident commission composed of three commissioners charged with the administration of the act, does not contravene Const. art 3 § 1, declaring that the powers of government shall be divided into three separate departments, the legislative, the executive -including the administrative-and the judicial, and that no officer of any department shall exercise the functions of another).

91. Wood v. Detroit, (Mich.) 155 NW 592, 596 (holding that Pub. Acts [Ex. Sess. 1912] No. 10, as amended by Pub. Acts [1913] No. 50, providing that the state and each county, city, township, incorporated village, and school district, and each incorporated public board or public commission in the state, authorized by law to hold property and to sue or to be sued generally, shall constitute an employer subject to the provisions of the act, is not violative of Const. art 8 §§ 20-24, providing generally that the legislature shall provide by a general law for the incorporation of cities, that under such general law the electors of each city and village shall have power to frame and to amend its charter and to pass all laws and ordinances relating to municipal concerns, that any city or village may acquire and maintain parks, hospitals, etc., and all works involving the public health or safety, that subject to the constitution any city or village may acquire and operate public utilities, etc., and that when a city or village is authorized to acquire or to operate any such utility it may issue bonds, since the compensation act, in its application to

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ment,91 requiring the open administration of justice,92 securing the right to all persons to obtain justice without purchase, without denial, and without delay,9 guaranteeing the right to prosecute or to defend a suit either in person or by an attorney or agent of his choice, requiring laws relating to courts and the proceedings and practice of all courts of the same class to be uniform,95 limiting courts to those provided for by the constitution, conferring jurisdiction on the federal courts of controversies between citizens of different states," inhibiting unreasonable searches and seizures,98 prohibiting donations, loans, and gifts by the state to individuals, inhibiting local or special acts, requiring that private corporations be formed by general laws, prohibiting a common carrier from conthe provision referred to. These restrictions in the act, as applied to those who submit to its provisions by election, certainly cannot be held unconstitutional").

99

municipalities, involves and touches on no right of local self-government or local control and management of corporate property, because in effect it declares a new public purpose for which taxes may be levied by the municipality, that is, to compensate injured employees, and so does not deprive the municipality of its property, authorized by the constitution to be held by it).

[a] Reasons for rule.-(1) "The subject of the legislation which is in question here is a social subject, in its very nature referable for community action to the state itself. A social theory needed to be crystallized into law. Its nature was such that no community less than the state could be appealed to for this purpose. The theory of this and of similar legislation includes the essential idea that the industrial worker is himself a social asset and ought not, in any case, to bear the whole result of a personal injury arising out of and in the course of his employment; that society at large ought to share the loss. The subject is one of governmental control, of public policy, necessarily committed to the Legislature. Whether it is or is not denominated a police regulation, municipal corporations are, for the purpose of carrying out such a measure, subject to legislative control." Wood v. Detroit, (Mich.) 155 NW 592, 596, 597. (2) "Private corporations and individuals exploit private capital. Out of this, in the first instance, the compensation of employés must be paid. The burden thus assumed by the employer must be distributed by his action in the course of his business.

In the case of a municipal corporation the burden assumed by it as employer is distributed, immediately and finally, upon the community subject to be taxed to raise the necessary fund. However that may be, there is found in the imposition of the law upon municipal corporations no invasion of private rights, but only the enforcement of a state policy which, in view of municipal activities, ought to be uniformly accepted and observed by all municipal corporations." Wood V. Detroit, supra.

92. Evanhoff v. State Industrial Acc. Commn., 78 Or. 503, 154 P 106. 93. Mathison v. Minneapolis St. R. Co., 126 Minn. 286, 148 NW 71, LRA 1916D 412.

94. Mackin V. Detroit-Timkin Axle Co., 187 Mich, 8, 26, 153 NW 49 (where the court said of the provision making attorney's and physician's fees in accident claims adjusted under its provisions subject to the approval of the industrial accident board: "The Industrial Accident Board is not, in contemplation of law, a court, and a claimant before it for damages resulting from personal injuries is not strictly a 'suitor in any court,' but the right of a claimant to select and employ an attorney or agent to represent him in the matter is recognized by

95. Peo. v. McGoorty, 270 I11. 610, 110 NE 791 (holding that, as the writ of certiorari provided for by the workmen's compensation act is different from the common-law writ in which only a judgment quashing the proceeding can be rendered, the whole matter is governed by the statute, and hence the provision for a writ of error to the supreme court, without allowing an appeal to the appellate court, is not invalid).

96. Greene v. Caldwell, 170 Ky. 571, 186 SW 648.

97. Stoll v. Pacific Coast SS. Co., 205 Fed. 169.

[a] Reason for rule.-"This might be true if the right of action remained, but the above law has ended the controversy between the parties. The only controversy left, by the terms of this law, is one between the plaintiff and the state as to the nature and extent of his injuries. These once established, the amount of his recovery is fixed. The question then becomes one of whether there is any constitutional limitation

on

a state's power to abolish the right of action; that is, whether it is taking liberty or property without due process of law." Stoll v. Pacific Coast SS. Co., 205 Fed. 169, 176.

98. Deibeikis V. Link-Belt Co., 261 Ill. 454, 104 NE 211, AnnCas 1915A 241; State v. Mountain Timber Co., 75 Wash. 581, 135 P 645.

99. Lewis, etc., County v. State Industrial Acc. Bd., (Mont.) 155 P 268 (holding that L. [1915] c 96 is not in violation of Const. art 13 § 1, since the inclusion of counties within it does not contemplate charity but provides compensation for injuries). 1. Greene V. Caldwell, 170 Ky. 571, 186 SW 648.

Co.,

2. Middleton v. Texas Power, etc., (Tex.) 185 SW 556, 562 (where the court said of the provision of the Texas statute concerning the formation of the "Texas Employers' Insurance Association": "The insurance association created by the Act is not a private corporation, and this part of the Act is not violative of the Constitution in its provision that no private corporation shall be formed except by general laws. Some such agency as the insurance association may be deemed as essential to the efficient execution of the Act. It was a way of giving effect to the plan as a dependable method of providing the funds necessary for the payment to employees of the compensation the Act is designed to afford. association is very clearly only an agency for the proper administration of this law. It has no functions or powers which it may exercise for any other purpose. It is denominated in the Act as a corporation, but that may be regarded as a term of convenience. Calling it a corporation does not make it a private cor

The

tracting for relief from its common-law liability,3
or requiring the presentation and allowance of
claims against the state treasury in a specified
manner. But the first Kentucky act was held in
violation of peculiar provisions of the Kentucky
constitution prohibiting the legislature from limit-
ing the amount of recovery for injuries resulting in
death or for personal injuries, and conferring an
absolute right on the personal representatives of a
decedent to recover for his death by wrongful act.5
Certain other objections have been dismissed as
based on an erroneous construction of the act in-
volved, as, for example, that a particular act de-
prives a parent of a right of action for injury to
his minor child," that proof of the amount of com-
poration. Its character is to be de-
termined by what it is, and not by
its name. St. Louis, etc., R. Co. v.
Levee Dist. Bd. of Directors, 103
Ark. 127, 145 SW 892; Beach V.
Leahy, 11 Kan. 23"). Compare Mem-
phis Cotton Oil Co. v. Tolbert, (Tex.
Civ. A.) 171 SW 309 (where the
court held that if the Texas act
[Acts 33d Leg. c 179] was invalid
on this ground the sections as to
abrogation of defenses were left un-
impaired).

3. Greene v. Caldwell, 170 Ky. 571, 186 SW 648.

4. State v. McMillan, 36 Nev. 383, 136 P 108.

5. State Journal Co. V. Workmen's Compensation Bd., 161 Ky. 562, 170 SW 437, 1166, LRA1916A 389, Ann Cas1916B 1273.

[a] The act of 1916, L. (1916) c 33, has been held not objectionable in this regard, however, because of its provisions for election. Greene v. Caldwell, 170 Ky. 571, 186 SW 648. 6. See cases infra notes 7-10.

7. Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 26, 153 NW 49 (where the court said: "The act provides for the damages of the minor. It does not indicate that the parent's action for loss of services is affected"). •

8. Grand Rapids Lumber Co. v. Blair, (Mich.) 157 NW 29.

9. Hunter V. Colfax Cons. Coal Co., (Iowa) 154 NW 1037.

10. Victor Chemical Works v. Industrial Bd., 274 Ill. 11, 113 NE 173. 11. U. S.-Raymond v. Chicago, etc., R. Co., 233 Fed. 239 (Washington act); Stoll v. Pacific Coast. SS. Co., 205 Fed., 169 (upholding Washington statute, L. [1911] p 345).

Iowa.-Hunter v. Colfax Cons. Coal Co., 154 NW 1037.

Mont.-Cunningham v. Northwestern Impr. Co., 44 Mont. 180, 119 P 554 (L. [1909] c 67, providing for state industrial insurance and workman's compensation for injuries, in case of employees engaged in coal mining within the state).

R. I.-Sayles v. Foley, 96 A 340 (Pub. L. [1912] c 831).

Wash.-State v. Clausen, 65 Wash, 156, 117 P 1101, 37 LRANS 466.

See American Coal Co. v. Allegany County Comrs., 128 Md. 564, 98 A 143 (sustaining an act for the establishment of a fund for the relief of employees injured in coal and clay mining in two counties of the state).

[a] Reason for rule.-"The conditions under which great numbers of persons, men, women and youth of both sexes, largely entirely unacquainted with each other, and speaking perhaps different languages, are assembled for the performance of their work, often produce a situation which renders some of the recognized defenses of the employer to a common-law action unreasonable and unfair to the worker. These same conditions which bring together, working in the presence of and about machinery often of a complicated and dangerous character, not infrequently in an overheated atmosphere and amidst the noise and din of operating machines. large groups of people of differing intelli

pensation paid by agreement approved by the arbitration board under the act is final and conclusive as to the measure of damages in an action by the employer for the use of the insurer against a third person whose act caused the injury, that denial of the defense of assumed risk deprives the employer of the right to show that the injury suffered by plaintiff was wholly due to his own negligence, and that an unreasonably short time was given the employer to elect whether to come under the act.10

[7] B. Foundation on Police Power. By the great weight of authority workmen's compensation acts are regarded as falling within the police power of the state and as referable thereto,12 it being held that their tendency is to raise the general

not

substance and effect, forbids that a citizen shall be penalized or subjected to liability unless he has violated some law or has been guilty of some fault"). (2) After the constitutional amendment of 1913 (N. Y. Const. art 1 §19) the compulsory insurance law of 1914, L. (1914) c 41, was enacted and sustained. Jensen v. Southern Pac. Co., 215 N. Y. 514, 528, 109 NE 600, LRA1916A 403, Ann Cas1916B 276 (where the court said: "Fortunately the courts have not attempted to define the limits of the police power. Its elasticity makes progress possible under a written constitution guaranteeing individual rights. The question is often one of degree. The act now before us seems to be fundamentally fair to both employer and employee. Of course, I do not speak of details, which may or may not be open to criticism, but which, granting the validity of the underlying principle, are plainly within the province of the legislature. It is not open to the objections found to be fatal to the act considered in the Ives case. [Ives v. South Buffalo R. Co., 201 N. Y. 271, 94 NE 431, 34 LRANS 162, AnnCas1912B 156]. It is plainly justified by the amendment to our own State Constitution and the decisions of the United States Supreme Court, notably in the Noble State Bank Case [Noble State Bank v. Haskell, 219 U. S. 104, 31 SCt 186, 55 L. ed. 112, 32 LRANS 1062, AnnCas1912A 487], make it reasonably certain that it will be found by that court not to be violative of the Constitution of the United States").

gence, experience, skill and personal | beyond is the Constitution which, in
characteristics, especially in respect
of habits of attention and careful-
ness, result in large numbers of in-
dustrial accidents, notwithstanding
the attempt by legislation and the
effort of humane employers to elimi-
nate them as far as is possible by
the use of safety appliances and
devices. On account of the charac-
teristic imperfections of human
beings, accidents in no small number
seem to be inevitable under the con-
ditions existing in many forms_of
present industrial employment. The
remedial relief afforded by the ordi-
nary forms of litigation is uncertain
and long delayed. If damages are
recovered, they are received,
when the disability is suffered and
the relief is most needed, but long
afterwards, and then materially di-
minished in amount as a necessary
result of the effort to recover them.
Undoubtedly for one reason or an-
other employés with meritorious
cases sometimes fail to recover dam-
ages while, on the other hand, those
with undeserving cases sometimes
succeed in doing so. In the common-
law action there is no set standard
as to the amount of damages recov-
erable, and sometimes great inequal-
ity results in cases very similar in
their facts. Under this system of
litigation it seems clear that the
great incidence of hardship and loss
falls upon the employé, although at
the same time it is often the source
of injustice to the employer. Under
it the court calendars have, of late
years, been increasingly crowded
with cases for the recovery of dam-
ages for injuries suffered in indus-
trial accidents with, as a conse-
quence, an increased burden upon the
state in the matter of court ex-
penses, and resulting additional
delay in disposing of other pending
cases. Legislation, therefore, which
is in amelioration of such a condi-
tion is a matter affecting the public
welfare. Considering the subject in
its general aspects, if such legisla-
tion needs justification, it can be
amply supported and upheld as a
proper exercise of the police power.'
Sayles v. Foley, (R. I.) 96 A 340, 342.

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12. Western Indemn. Co. v. Pillsbury, 170 Cal. 686, 151 P 398; State v. Creamer, 85 Oh. St. 349, 97 NE Texas Power, etc., Co., (Tex. Civ. A.) 602, 39 LRANS 694; Middleton v.

178 SW 956.

But see Deibeikis v. Link-Belt Co., 261 Ill. 454, 464, 104 NE 211, AnnCas1915A 241 (where the court said with reference to L. "We are unable to see [1911] p 315: where it can be contended that this act is an attempt to exercise the police power. It will be observed that the act is elective, and that no employer or employee is compelled within its proto accept or come visions unless he chooses to do so. Therefore, unless the employer or the employee elects to come within the provisions of the act he is not affected by any of the provisions thereof. This is subject, however, to one exception. Under the conditions specified in said section 1 an employer is deprived of the common law defenses of assumed risk, contributory negligence, and that the injury or death was caused, in whole or in part, by the negligence of a fellow-servant. To deprive an ployer, under such circumstances, of the right to assert those defenses is not an exercise of the police power, but is merely a declaration by the legislature of the public policy of the State in that regard. The right of the legislature to abolish these defenses cannot be seriously ques

[b] In New York (1) the compul-
sory compensation act, L. (1910)
c 674, was held not sustainable under
the police power. Ives v. South Buf-
falo R. Co.. 201 N. Y. 271, 305, 94
NE 431, 34 LRANS 162, AnnCas1912B
156 (where the court said: "When
an industry or calling is per se
lawful and open to all, and, there-
fore, beyond the prohibitive power of
the legislature, the right of govern-
mental control must be confined to
such reasonable enactments as are
directly designed to conserve health,
safety, comfort, morals, peace and
order. (Lochner v. New York, 198
U. S. 45, 25 SCt 539, 49 L. ed. 937,
3 AnnCas 1133.) For the failure of
an employer to observe such regula-
tions the legislature may unquestion-
ably enact direct penalties or create
presumptions of fault which, if not
rebutted by proof, may be regarded
as sufficient evidence of liability for
damages. That must be the extreme
limit of the police power, for justtioned")

em

standard of the people; 13 more specifically, by diminishing the liability that injured workmen or their dependents will become public charges,1* and by the elimination of economic waste.15 A compensation act is not invalid as a police regulation because of the fact that it permits payment in a lump sum.16

[8] C. Denial of Due Process of Law-1. In General-a. Elective Acts. The elective17 or voluntary acts have been uniformly upheld as against the contention that they violate the fourteenth amendment of the constitution of the United States forbidding the depriving of any person of life, liberty, or property without due process of law,18 and as 13. Cunningham v. Northwestern | incontrovertible. Impr. Co., 44 Mont. 180, 212, 119 P 554 (where the court said: "That the right to exercise police authority as such over the operator arises, in part at least, from the fact that he is engaged in an extrahazardous business, which may, by reason of the liability of his employees to injury therein, resulting in death or partial or permanent disability, cause them to become public charges, thus lowering the standard of citizenship and increasing the general burden of taxation; and from the further fact that our present system of common-law and statutory actions greatly increases the expense of maintaining our courts, causes a vast economic waste, and tends to create breaches and dissensions between employer and employee which would otherwise not exist. (St. Louis Cons. Coal Co. v. Illinois, 185 U. S. 203, 22 SCt 616, 46 L. ed. 872.) The latter consideration is one pertaining to the peace, order, and morals of the community, which are universally recognized as subject to control and regulation by the state"). 14. Cunningham v. Northwestern Impr. Co., 44 Mont. 180, 207, 119 P 554 (where the court said with reference to a statute applying only to coal miners: "For the purposes of this case, let us turn from its humanitarian features, and suppose for the moment that the sole object of the Act is to prevent persons injured in coal mines, and their dependents, from becoming public charges. Viewed in this light, the private benefits to be derived from the law may be disregarded, and its primary object held to be one of public concern solely. Moreover, it cannot be doubted, we think, that the general welfare of the state and its standing among its sister states, as well as among persons generally, necessarily including those who have money to invest, and those who seek new homes and new locations, depends in a great measure upon its industries and the class and welfare of its wageworkers. Any measure which tends to minimize indigency, of necessity raises the general standard of the people; any statute which has a tendency to reduce the present enormous expense of operating our courts would seem to be, presumptively, a proper exercise of the police power").

19

against the contention that they violate like provisions of the various state constitutions.1 No distinction is made in this regard when the employer affected is a municipal corporation.20 This objection has perhaps been most frequently urged as against those provisions of the statutes abrogating common-law defenses.21

[9] b. Compulsory Acts. With regard to the validity of compulsory compensation acts22 as against the contention that they are in violation of the fourteenth amendment to the federal constitution, the courts have found more difficulty.28 However, both compulsory insurance acts and compulsory compensation acts with an optional insurance 86 N. J. L. 701, 91 A 1070] (Act April 4, 1911 [P. L. p 134]).

The evil it seeks to remedy is one that calls loudly for action. Accidents to workmen engaged in the industries enumerated in it are all but inevitable. It seems that no matter how carefully laws for the prevention of accidents in such industries may be framed, or how rigidly they may be enforced, there is an element of human equation that enters into the problem which cannot be eliminated and which invariably causes personal injuries and consequent financial losses to workmen engaged therein. Heretofore these losses have been borne by the injured workmen themselves, by their dependents, or by the state at large. It was the belief of the legislature that they should be borne by the industries causing them, or, perhaps more accurately, by the consumers of the products of such industries. That the principle thus sought to be put into effect is economically, sociologically, and morally sound, we think must be conceded. It is so treated by the learned counsel who have filed briefs in support of the auditor's contentions; it is so conceded by all modern statesmen, jurists, and economic writers who have voiced their opinions on the subject; and the principle has been enacted into law by nearly all of the civilized countries of Europe, by Australia, by New Zealand, by the Transvall, by the principal provinces of the Dominion of Canada, and in a partial form at least by one or more of the South American Republics. Indeed, so universal is the conception that to assert to the contrary is to turn the face against the enlightened opinion of mankind. The common law does not purport to afford a remedy for the condition here found to exist. It affords relief to an injured workman in only a limited number of cases; cases where the injury is the result of fault on the part of the employer and there is want of fault on the part of the workman. For the greater number of injuries traceable to the dangers incident to industry, no remedy at all is afforded. The act, therefore, having in its support these economic and moral considerations, is not unconstitutional for the reasons suggested upon this branch of the argument").

16. Cunningham v. Northwestern Impr. Co., 44 Mont. 180, 119 P 554. 17. Elective acts defined see supra § 2.

18. Ill.-Deibeikis V. Link Belt Co., 261 Ill. 454, 104 NE 211, Ann Cas1915A 241 (L. [1911] p 315). Iowa.-Hunter V. Colfax Cons. Coal Co., 154 NW 1037.

Kan.-Shade v. Ash Grove Lime, etc., Co., 93 Kan. 257, 144 P 249 (L. [1911] с 218, as amended by L. [1913] c 216).

15. State v. Clausen, 65 Wash. 156, 195, 117 P 1101, 37 LRANS 466 (where the court said: "If, therefore, the act in controversy has a reasonable relation to the protection of the public health, morals, safety or welfare, it is not to be set aside because it may incidentally deprive some person of his property without fault or take the property of one person to pay the obligations of another. To be fatally defective in these respects, the regulation must be so utterly unreasonable and SO extravagant in nature and purpose as to capriciously interfere with and destroy private rights. That the statute here in question has the attribute of reasonableness, rather N. J.-Sexton v. Newark Dist. Tel. than that of capriciousness, seems Co., 84 N. J. L. 85, 86 A 451 [aff

Ky-Greene v. Caldwell, 170 Ky. 571, 186 SW 648.

Mass.-In re Opinion of Justices, 209 Mass. 607, 96 NE 308 (St. [1911] c 751).

Minn.-Mathison v. Minneapolis St. R. Co., 126 Minn. 286, 148 NW 71, LRA1916D 412.

Oh. -State v. Creamer, 85 Oh. St. 349, 97 NE 602, 39 LRANS 694 (102 Oh. L. p 523).

Or.-Evanhoff v. State Industrial Acc. Commn., 78 Or. 503, 154 P 106 (L. [1913] c 112).

Tex.-Middleton v. Texas Power, etc., Co., 185 SW 556 [rev (Civ. A.) 178 SW 956, on question certified] (Acts [1913] c 179); Memphis Cotton Oil Co. v. Tolbert, (Civ. À.) 171 SW 309.

Wis.-Mellen Lumber Co. v. Industrial Commn., 154 Wis. 114, 142 NW 187, LRA1916A 374, AnnCas1915B 997; Borgnis v. Falk Co., 147 Wis. 327, 133 NW 209, 37 LRANS 489.

19. Kan.-Shade V. Ash Grove Lime, etc., Co., 93 Kan. 257, 144 P 249 (L. [1911] c 218, as amended by L. [1913] c 216).

Ky-Greene v. Caldwell, 170 Ky. 571, 186 SW 648.

Mass.-In re Opinion of Justices, 209 Mass. 607, 96 NE 308 (St. [1911] c 751).

Minn.-Mathison v. Minneapolis St. R. Co., 126 Minn. 286, 148 NW 71, LRA1916D 412.

Oh.-State v. Creamer, 85 Oh. St. 349, 97 NE 602, 39 LRANS 694 (102 Oh. L. p 523).

Tex. Middleton v. Texas Power, etc., Co., 185 SW 556 [rev (Civ. A.) 178 SW 956, on questions certified] (Acts [1913] c 179); Memphis Cotton Oil Co. v. Tolbert, (Civ. A.) 171 SW 309.

Wis.-Borgnis V. Falk Co., 147 Wis. 327, 133 NW 209, 37 LRANS 489.

20. Allen v. Millville, 87 N. J. L. 356, 359, 95 A 130 (where the court said that the contention seemed "almost frivolous in view of the well settled right of the legislature to control municipalities as subordinate legislative agencies").

21.

See infra § 12.

22. Compulsory acts defined see supra § 2. 23. See cases infra notes 24-27. 24. Raymond v. Chicago, etc., R. Co., 233 Fed. 239 (Washington act); Stoll v. Pacific Coast SS. Co.. 205 Fed. 169 (Washington_act); Stertz v. State Industrial Ins. Commn., (Wash.) 158 P 256; State v. Mountain Timber Co., 75 Wash. 581, 135 P 645; State v. Clausen, 65 Wash. 156, 117 P 1101, 37 LRANS 466 and note. See American Coal Co. v. Allegany County Comrs., 128 Md. 564, 98 A 143 (sustaining an act for the establishment of a fund for the relief of employees injured in coal and clay mining in two counties of the state).

[a] Application to injuries caused by stranger.-"Nor can we see that. under the constitutional objection of due process of law, the complaint of the employer is sounder when he pays for injuries caused by the meddling of a stranger on the premises than when he pays for injuries from a perfect machine. The question is one of degree and often of small degree. For that the master should have every possible inducement to shield his workmen at their tasks from the meddling of third persons

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