sory statutes it has been held that the legislature has, correlative to the power to compel owners or operatives engaged in hazardous industries to pay a fixed sum into a fund to be used in compensating the employees therein for injuries received by them, the power to require the employees of such industries to accept a given sum for any injury they may receive while so engaged.3 Again it has been held that the right to a jury trial is guaranteed only as incident to causes of action recognized by law, and that when the cause of action is removed by statute the incidental right terminates with it.1 [20] H. Impairment of Obligation of Contracts. It is obvious that a compensation act does party and not an absolute right which is not the subject of such a waiver. The practice of waiving a trial by jury in civil cases or proceedings in this state is of such common occurrence as to attract no attention; and it has never been doubted in this state that such a waiver could be made. Thus it is stated by Mr. Justice Van Syckel in Joy, etc., Co. v. Blum, 55 N. J. L. 518, 520, 26 A 861, 'the right of trial by jury may be waived.' No distinction can be perceived between a waiver of this right by the parties after commencement of a suit and as incident to its prosecution and a general waiver as result of a contract made prior to the commencement of legal proceedings, or, indeed, to the accrual of a possible cause of action. Nor can any distinction be perceived between waiver of the right in the form of an express contract between the parties and a waiver which may arise as a result of a legal presumption under legislative authority." Sexton V. Newark Dist. Tel. Co., 84 N. J. L. 85, 101, 86 A 451 [aff 86 N. J. L. 701, 91 A 1070]. a a 3. State v. Clausen, 65 Wash. 156, 117 P 1101, 37 LRANS 466. not impair the obligation of contracts of employment entered into after it takes effect, or after it has been enacted though not yet in effect. Nor does such a statute in so far as it affects the right of action for a subsequent injury impair the obligation of existing contracts; hence it may modify or abolish common-law defenses to an action for such an injury. Further, the optional acts do not affect the obligation of contracts, since the parties by acceptance or rejection of the statute may be held to have made a new contract. In any event a compensation act, if otherwise a proper exercise of the police power, may interfere with existing contracts." then, if consistent, hold the idea of 4. Cunningham V. "The constitution does not under- do Claim against indemnity fund. in the Constitution guaranteeing a [a] Police power.-"When we say that we sustain a law by reference to the police power that might otherwise be in conflict with some provision of the constitution, it would seem that every incident to that law, as well as all methods necessary to make it effective, are likewise exempted from the proscriptions and limitations of the constitution. The legislature has adopted the idea of industrial insurance, and seen fit to make that idea a workable one by putting its execution, as well as its administrative features, in the hands of a commission. It has abolished rights of actions and defenses and in certain cases denied the right of trial by jury. The legislature has said to the man whose business is a danger-pation taxes. There is not anything ous one and the operation of which may bring injury to an employee. that he cannot do business without waiving certain rights and privileges heretofore enjoyed, and it has said to the employee that, inasmuch as he may become dependent upon the state, he must give up his personal right of contract when about to engage in a hazardous occupation and contract with reference to the law. These demands are the fundamentals of our industrial insurance law. If the law is not administered therein provided, it is not likely that a compulsory law such as it is could ever be adequately administered; for, aside from its humane purpose, it was adopted in order that the delay and frequent injustice incident to civil trials might be avoided. "The remedy of the workman has been uncertain, slow and inadequate. Injuries in such works, formerly occasional, have become frequent and inevitable.' Laws 1911, page 345. Το uphold the law in the sense of sustaining the idea of industrial insurance, and to deny the right of executing it without the intervention of the courts, would throw us back on the original ground and we should as Cunningham v. Northwestern Impr. Co., 44 Mont. 180, 217, 119 P 554. 5. Sexton v. Newark Dist. Tel. Co., 84 N. J. L. 85, 86 A 451 [aff 86 N. J. L. 701, 91 A 1070]. 6. Sexton V. Newark Dist. Tel. Co., 84 N. J. L. 85, 86 A 451 [aff 86 N. J. L. 701, 91 A 1070]. 7. State v. Meeker County Dist. Ct., 128 Minn. 221, 150 NW 623; Troth v. Millville Bottle Works, 86 N. J. L. 558, 91 A 1031; Borgnis v. Falk Co., 147 Wis. 327, 133 NW 209, 37 LRANS 489. Compare Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1048 (where, in considering Acts 35 Gen. Assembly c 147, the court said: "The statute at bar has not a suggestion that existing contracts are within its contemplation. On the contrary, it provides expressly that existing conditions are not to be affected"). 10 But see State v. Creamer, 85 Oh. St. 349, 97 NE 602, 39 LRANS 694 (holding that Oh. L. 102, p 524, creating a state insurance fund for the benefit of injured employees and the dependents of killed employees, cannot affect contracts in existence and unexpired when the act is put into operation by the employer). [a] "Certainly the law does not affect the service to be rendered or the wages to be paid in any way. Neither the obligation of the workman to faithfully do his work, nor the obligation of the employer to faithfully pay the stipulated wage, nor the remedy in case of breach by either party, is in any way affected. What, then, is affected? Plainly no provision of the contract. But, if the employer elects to come under the law, the employee must choose whether he will come under it or not, and if he does not wish to come under it he may run the risk of being discharged, or if he wishes to retain his employment he may feel compelled to elect to come under the law and thus lose his right to bring an action at law in case of a personal injury sustained in the employment. But all this does not in any way affect the contract of employment; that remains absolutely unimpaired in all its terms." Borgnis v. Falk Co., 147 Wis. 327, 366, 133 NW 209, 37 LRANS 489. [b] "The right to bring an action in the future in case of a possible tort not yet committed, is no part of the contract of employment. That right arises out of the relation of employer and employe, and is subject to change by the lawmaking power at any time. The employer does not contract that it shall remain intact. There is no vested right in a mere remedy for a hypothetical wrong. At most, the law cannot be said to do more than change the remedy for a tort which is yet to happen, and may never happen. The legislature may change the remedies for torts yet to be committed at any time, and such changes cannot be said to make any change in mere contracts of service existing between the parties." Troth v. Millville Bottle Works, 86 N. J. L. 558, 560, 91 A 1031 [quot Borgnis v. Falk Co., 147 Wis. 327, 133 NW 209, 37 LRANS 489]. 8. Sexton v. Newark Dist. Tel. Co., 84 N. J. L. 85, 86 A 451 [aff 86 N. J. L. 701, 91 A 1070]. 9. Hunter V. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1048; Troth v. Millville Bottle Works, 98 A 435 [aff 86 N. J. L. 558, 91 A 1031]. "If acceptance of the act is elective, then, as will be seen later, the statute cannot work an impairment. Whenever liberty is left on whether to contract at all (which liberty is assumed for present purposes), then a new contract or a change in contract, made by contract, cannot be objected to as an invalid impairment. Of course, parties sui juris and at liberty can make new contracts that modify or obviate existing ones without running counter to any constitutional inhibition." Hunter v. Colfax Cons. Coal Co., supra. 10. Hunter v. Colfax Cons. Coal [§ 21] I. Impairment of Right to Contract. The elective compensation acts are held to work no impairment of the right to contract, either generally,11 or on the part of the employee or the employer.13 In any event the right of the legislature to impair the right to contract, in the exercise of the police power, is recognized.1 Hence even a compulsory compensation act may be sustained on the theory that the right is subject to reasonable restrictions for the welfare of the state; 15 and on the same theory restrictions on the right to contract intended to prevent evasion or circumvention of the statute are sustained,1 as are provisions that no payment under the act shall be assignable or subject to attachment or Co., (Iowa) 154 NW 1037; State v. Seattle, 73 Wash. 396, 132 P 45. Obligation of contract generally as subject to police power see Constitutional Law [8 Cyc 997]. 11. Hawkins v. Bleakley, 220 Fed. 378; Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037. 12. Deibeikis v. Link-Belt Co., 261 Ill. 454, 104 NE 211, AnnCas1915A 241; Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49; Sayles v. Foley, (R. I.) 96 A 340 (holding that Pub. L. [1912] c 831 art 1 § 6, providing that an employee of an accepting employer waives his common-law action unless he gives notice of such claim to the employer, does not render the act invalid as destroying the right of freedom of contract, since such provision simply creates a presumption in the absence of such notice leaving the employee free to accept or to reject the act). 13. Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037 (sustaining the provisions of the Iowa act that every employer, subject to its provisions, shall insure his liability thereunder in some organization approved by the state department of insurance, and further provisions as to this and the supervision and regulation of taking and maintaining such insurance, together with provisions as to the methods by which the insurance can be carried by mutual arrangement by the employer and employee, or under which the employer may carry his own risk; and various other regulations and supervisions of these arrangements for carrying insurance, for terminating such arrangements, and the like). 14. Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1050. "While the right to contract is a property right, like all other property rights, it is 'subservient to the public welfare,' and may be taken by the state in a well-directed effort to promote the public welfare by the exercise of the police power." Hunter v. Colfax Cons. Coal Co., supra. 15. State V. Clausen, 65 Wash. 156, 192, 117 P 1101, 37 LRANS 466. "It is thought the act at bar interferes with certain of the personal rights here defined, particularly with the right of contract, and is for that reason violative of this provision of the constitution. But it is recognized in the case cited, and in many others, that these rights are not absolute. On the contrary, it has been many times said that there is no absolute right to do as one wills, pursue any calling one desires, or contract as one chooses; that the term liberty means absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community." State v. Clausen, supra. 16. Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1050; In re Opinion of Justices, 209 Mass. 607, 96 NE 308. "Assuming there can be a valid compensation act, certainly the Leg 16 garnishment, or in any way be held for debt.17 [22] J. Delegation of Judicial Powers and Deprivation of Courts of Jurisdiction. The creation by the compensation acts of boards or commissions having authority to pass on claims for injuries and to make awards does not constitute an unwarranted delegation of judicial powers, 18 the decisions being based on the various grounds that such boards are administrative agencies, although exercising quasi judicial powers, is that they do not have the final authority to decide and to render enforceable judgments,20 or that under the elective statutes they are in effect boards of arbitration by agreement.2 Notwithstanding a constitutional provision vesting the judicial power in 21 19 islature may make provision against | amount of coal mined and the amount of wages paid, and providing a summary method for the disposition of claims filed under the law, was not unconstitutional as conferring judicial power on the state_auditor having charge thereof. Cunningham v. Northwestern Impr. Co., 44 Mont. 180, 119 P 554. supra. [a] For example the following 17. Mackin V. Detroit-Timkin 18. Il.-Deibeikis V. Link-Belt Iowa.-Hunter V. Colfax Cons. Mich.-Mackin V. Detroit-Timkin Minn.-State V. Meeker County Wash.-State v. Mountain Timber Wis.-Borgnis V. Falk Co., 147 [a] The Montana Miners' Compensation Act (L. [1909] c 67), providing indemnity for injured employees engaged in coal mining from a fund to be collected from a tax levied on the workmen and the coal operators in accordance with the [b] In Oregon, under Const. art 7 § 1, as amended in 1911, the legislature was authorized to confer judicial powers on the state industrial accident commission, created by the workmen's compensation law, since under the amendment the legislature or the people may confer judicial powers on any tribunal selected, so long as the different departments of government are not made to encroach on each other. Evanhoff v. State Industrial Acc. Commn., 78 Or. 503, 154 P 106. 19. Mackin V. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49; Middleton v. Texas Power, etc., Co., (Tex.) 185 SW 556; Borgnis v. Falk Co., 147 Wis. 327, 358, 133 NW 209, 37 LRANS 489. "We do not consider the Industrial Commission a court, nor do we construe the act as vesting in the Commission judicial powers within the meaning of the constitution. It is an administrative body or arm of the government which in the course of its administration of a law is empowered to ascertain some questions of fact and apply the existing law thereto, and in so doing acts quasi-judicially, but it is not thereby vested with judicial power in the constitutional sense.' Borgnis v. Falk Co., supra. 20. Mackin V. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49. 21. Deibeikis v. Link-Belt Co., 261 Ill. 454, 104 NE 211, AnnCas1915 A 241; Greene v. Caldwell, 170 Ky. 571, 186 SW 648; Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49; Borgnis v. Falk Co., 147 Wis. 327, 133 NW 209, 37 LRANS 489. [a] "Being elective, the act does not become effective as to any employer or employee unless such employer or employee chooses to come within its provisions. Having once elected to come within the provisions of the act, as long as such election remains in force the act is effective as to the party or parties making the election, and in case an employer and an employee both elect to come within the provisions of the act, the act itself then becomes a part of the contract of employment and can be enforced as between the parties as such. Under this view it cannot be said that by this act judicial power is delegated to boards of arbitrators, contrary to the provisions of our constitution. Parties to a contract may make valid and binding agreements to submit questions in dispute or any disagreement that may arise to a board of arbitrators composed of persons or tribunals other than the regularly organized courts, and such agreements will be enforced. (Pacaud v. Waite, 218 Ill. 138, 75 NE 779, 2 LRANS 672.) By elect ing to accept the provisions of this act the employer and the employee thereby agree to settle by arbitration any dispute that may arise between them in reference to compensation for injury." Deibeikis v. LinkBelt Co., 261 Ill. 454, 465, 104 NE 211. AnnCas1915A 241. 22. Western Metal Supply Co. v. Pillsbury, (Cal.) 156 P 491; Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319, 153 P 24; Englebretson v. Industrial Acc. Commn., 170 Cal. 793, 151 P 421 (holding that, as Const. art 20 § 21, as amended, under which the Workmen's Compensation Law was enacted, did not authorize the legislature to delegate to the commission, as was attempted by § 75 subd 6, power to regulate and to prescribe the nature and the extent of the proofs and the evidence, such attempted delegation is invalid). [a] Commission exercising judicial powers."It is true that, in several cases involving compensation statutes, it has been held that the boards or officers authorized to determine the facts upon which the right to compensation arose were exercising executive or administrative rather than judicial powers. Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 A 372, LRA1916A 436; Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49; Borgnis v. Falk Co., 147 Wis. 327, 133 NW 209, 37 LRANS 489. But in none of these cases was the court considering a statute which gave to a commission powers as extensive as those vested by our law in the industrial accident commission. We shall not take the time to review in detail the cases just cited, but content ourselves with saying that we think there is nothing in them which would support the claim that the powers exercised by the industrial accident commission of this state in making awards of compensation are not strictly judicial." Western Metal Supply Co. v. Pillsbury, (Cal.) 156 P 491, 493. 23. Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319, 153 P 24. [a] "The constitutional provision is that the legislature may 'create and enforce a liability on the part of all employers to compensate their employees for any injury incurred by the said employees in the course of their employment.' It proceeds to declare that the legislature may establish an industrial accident board and empower it to settle disputes concerning the liability which the legislature may create under the authority so given. (Art. XX, sec. 21.) This action by such board would be an exercise of judicial power. For that purpose it is, in legal effect, a court. Section 1 of article VI vests the judicial power of the state 'in the senate, sitting as a court of impeachment, in a supreme court, district courts of appeal, superior courts,' and such inferior local courts as the legislature may establish. Under this provision the legislature would be without authority to give judicial power to any general state board or tribunal. Except for local purposes the section disposes of the whole judicial power of the state and vests all of it in the courts expressly named Provision for arbitration. A provision in an elective act for the formation of a committee of arbitration in case of disputed claims, the decision of which is reviewable by the industrial commissioner, and on which a decree is rendered by the district court, has been sustained as against a contention that it is an improper delegation of judicial power and a denial of a judicial hearing.25 Depriving courts of jurisdiction. The elective acts are not invalid as depriving the parties of all right to resort to the courts.26 therein, leaving none at the disposal of the legislature. Authority to the legislature to create another state tribunal and vest it with judicial power over this new class of cases must be sought for elsewhere in the constitution. It is found only in the aforesaid section 21 of article XX. It follows that this section measures and limits the legislative power in that respect. The second sentence of the section authorizes the creation of a state board to settle disputes arising under the legislation authorized by the first sentence. This includes only disputes arising out of the newly to be created liability of an employer to his employee for an injury incurred by such employee in the course of the employment. It is these injuries only the redress of which may be committed by the legislature to a state industrial accident board. Hence it follows necessarily that the legislature cannot give such board power to settle disputes and allow compensation from the employer to a person who has been or is an employee, for a personal injury which was not incurred by him in the course of' his employment, or which happened after the employment had ceased and was not the natural and proximate result of the employment, or of some injury which did occur in the course of his employment. It could not give such board power to allow compensation to McCay for the additional disability or expenses arising from the slipping of the broken bone, unless such slipping was the natural or proximate result of the original injury." Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319, 322, 153 P 24. 24. State v. Creamer, 85 Oh. St. 349, 400, 97 NE 602, 39 LRANS 694 (where the court said of 102 Oh. L. р 524: "If the board is a court there is an end of the whole matter. The statute would be unconstitutional. For if the board is a court it has not been created in accordance with the manner provided by the constitution. We do not consider the Board of Awards a court, or invested with judicial power within the meaning of the constitution. is created by the act purely as an administrative agency to bring into being and administer the insurance fund, and the fact that it is empowered to classify persons who under the law and to ascertain facts as to the application of the fund, does not vest it with judicial power within the constitutional sense"). It come 25. Hawkins v. Bleakley, 220 Fed. 378. 382; Hunter V. Colfax Cons. Coal Co., (Iowa) 154 NW 1037. "Arbitrations existed at common law, and they are allowable under the Iowa statute. The conclusion and award of an arbitrator can be enforced by judicial proceedings. There is nothing new about all this. And these arbitrations are agreed to under this statute either by specific agreement or by acquiescence." Hawkins v. Bleakley, supra. [a] Judicial power not restricted to courts.-"Assume the delegation is one of judicial powers, while if the parties are left wholly free on whether to reject or accept this arbitration and resulting court orders, it is, perhaps, not strictly necessary to determine whether enforced submission to said procedure would be valid-we hold that, even if submission be compulsory, there is here no unwarranted delegation. It does not at all follow from pronouncements that judicial power may not be delegated, that none but duly constituted constitutional courts may exercise judicial power." Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1061. [b] "It is not wholly clear that here there is a delegation of judicial power. It might, perhaps, as well be claimed that what has really been delegated is not judicial power, but power by award and resulting entry of decree to apply the measure of damages created by legislative act, a delegation of legislative rather than of judicial power." Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1060. 26. Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037; Borgnis v. Falk Co., 147 Wis. 327, 133 NW 209, 37 LRANS 489. [a] Extent of ouster of jurisdiction.-"If we assume the statute would be void if it operated to oust the courts of all jurisdiction to try controversies between employer and employé, it is an immaterial concession in the cases wherein the act is rejected. For, when rejected, the courts are not ousted of jurisdiction in toto, and, as we view it, not deprived of it at all. Where the act is rejected the full dispute between the parties is still submitted by ordinary proceedings, and tried in the usual way. True, some mere rules of procedure are changed, some defenses are eliminated, and there is some change in burden of proof. Even if it be assumed that these changes are unauthorized, the objection is not sustained that on rejection of the act the courts no longer have jurisdiction to try suits for the injury of an employé. A somewhat more difficult question arises when the provisions of the act are accepted. In that case, if the parties cannot come to an agreement, compensation fixed by statute schedule is awarded by arbitration provided for in the act. In a sense, then, the acceptance of the statute operates to take from the courts so much of the controversy as is determined by the applying of the statute schedules through the agency of the statute arbitrators. Before we reach the question whether, if this constitute a total ouster of the jurisdiction of the courts, it would invalidate the act, we, of course, have to determine whether such total ouster is SO effected. We are forced to deal with this question as one of first impression, because no decision that sustains the Compensation Act of other states is applicable. The Washington Act and that of Massachusetts reserve recourse to the courts and full judicial review. Borgnis v. Falk Co., 147 Wis. 327, 133 NW 209, 210, 37 LRANS 489, sustains the Wisconsin act with a holding that there is review if the act be without power or fraudulent, that if the board act without or in excess of its jurisdiction, there may be action in court to set aside the award, and that this may also be done if its findings of fact are not supported by the evidence. Our act has no such reservations, in terms, and therefore these decisions afford us no light. Right to review. The fact that a right of appeal from an administrative board is not granted does not constitute an encroachment on the judiciary where the right of review by certiorari remains open.27 The parties cannot be deprived of the right to have a court review of the action of the board to the extent of determining whether it has acted illegally or without jurisdiction.28 [23] K. Delegation of Legislative Authority. An elective compensation act is not invalid as a delegation of legislative authority for the reason that the power is given the employer to choose from two alternative schemes, both clearly and completely defined by the law and designed to afford compensation for an accident to another, so long as that other is not bound by the employer's choice but is left free to make his own choice.29 [24] L. Subject and Title of Act. In several of the states particular compensation statutes have been held not to violate constitutional requirements that every act shall embrace but one subject which shall be expressed in its title,30 the tests applied 29. Sayles v. Foley, (R. I.) 96 A 340. We are in no doubt that the very 28. Courter V. Simpson Constr. were "To deny a court review of those questions would violate the due proc ess of law provision of the constitution." Courter V. Simpson Constr. Co., supra. [a] Construction of statute.-"If the act before us took away from the courts the power to consider these jurisdictional questions, either expressly or by necessary implication, the contention that judicial power had been vested in the Commission, contrary to the command of the constitution, would be of greater force, but we think that the act does not do this, or attempt to do it. True, it says that the findings of fact made by the Commission shall, in the absence of fraud, be conclusive; but it provides for an action in the circuit court for Dane county, in which the board's award may be set aside upon either of three grounds, viz.: (1) that the board an or acted without or in excess of its electing by positive act to remain " power.' 30. Kan. Shade V. Ash Grove Lime, etc., Co., 93 Kan. 257, 144 P 249. Ky-Greene v. Caldwell, 170 Ky. 571, 186 SW 648. V. Mich.-Mackin V. Detroit-Timkin Or.-Evanhoff v. State Industrial Tex.-Middleton v. Texas Power, SW 202. [a] Illustrations. The following titles have been held not subject to constitutional objections: (1) "An Act to provide compensation for workmen injured in certain hazardous industries." L. (1911) c 218; L. (1913) c 216; Shade v. Ash Grove Lime, etc., Co., 93 Kan. 257, 261, 144 P 249. (2) "An act to promote the welfare of the people of this State, relating to the liability of employers for injuries or death sustained by their employees, providing compensation for the accidental injury to or death of employees and methods for the payment of the same, establishing an industrial accident board, defining its powers, providing for a review of its awards, making 32 34 31 It being those applicable to statutes generally. is not essential that the title contain details, incidents, or means of carrying out the object of the legislation.3 The term 66 'workmen' employed in a generic sense is sufficient to include the employees of a county as well as the servants of individuals or of private corporations.33 So the term "employers" has been held to include a municipal corporation. Under a constitutional requirement that no law shall embrace more than one subject which shall be expressed in its title, a statute providing for compensation for accidental injury to, or death of, employees would be unconstitutional if construed to extend to occupational diseases.35 A constitutional requirement that appropriation laws making provision for the salaries of public officers and for current expenses of the state shall contain provisions on no other subject is not violated by the fact that a compensation act makes provision 36 for the appointment and the salaries of commissioners.3 When the title is sufficiently broad to indicate that the act is intended to furnish the only compensation to be allowed workmen subsequent to its becoming law, it includes any and all rights of action in which such compensation might have been obtained.37 [§ 25] M. Effect of Partial Unconstitutionality. It is well settled that a statute may be unconstitutional and void as to some of its provisions and valid as to others,38 and this rule has been applied to compensation legislation,39 some of the statutes expressly providing that, if any provision is held inoperative, no other part shall be affected.40 [§ 26] N. Persons Who May Urge Unconstitutionality. As a general rule no one can urge the unconstitutionality of a compensation act who is not injuriously affected by the feature complained of; and so the employer will not be heard to urge either section"). tions, and declaring an emergency." | employer's liability and the proceed- | raised, as they may be applicable to L. (1913) c 179 p 429; Middleton v. Texas Power, etc., Co., (Tex.) 185 SW 556; Postex Cotton Mill Co. v. McCamy, (Tex. Civ. A.) 184 SW 569; Consumers' Lignite Co. V. Grant, (Tex. Civ. A.) 181 SW 202; Memphis Cotton Oil Co. v. Tolbert, (Tex. Civ. A.) 171 SW 309. an [b] Compensation to dependents included. "The defendant argues that the Workmen's Compensation Act of 1911 is unconstitutional, because it embraces two objects and one only is expressed in the title. The point is thus stated in his brief: "The act in its title prescribes only the liability of an employer to make compensation for injuries received by an employe, &c., and does not provide for compensation by employer to the next of kin of an employe who is killed in the course of his employment.' We are unable to adopt defendant's view. It seems to us that the object of the act is single-to provide for the liability of an employer to make compensation for injuries received by an employe. Whether the compensation is to be made to the employe himself or to those who suffer pecuniary loss by reason of his injuries, it is equally a liability of the employer. Whether the injuries result in death or not, they are naturally and properly spoken of as injuries received by an employe. The pression 'fatal injuries' is not uncommon or improper. That this single object of providing for the liability of the employer is expressed in the title sufficiently appears from a mere reading of that portion of the title we have already quoted." Huyett v. Pennsylvania R. Co., 86 N. J. L. 683, 92 A 58. ex 31. See Statutes [36 Cyc 10171. 32. Mackin V. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49; Memphis Cotton Oil Co. v. Tolbert, (Tex. Civ. A.) 171 SW 309. ex [a] Illustrations.—(1) "The particulars pointed out in which it is claimed the act contains provisions not referred to or comprehended in the title are that it repeals an isting statute relative to contracts with attorneys for services, creates a right of action against a third party by the employer of the injured, subrogating the employer to the rights of the employee, and requires the injured employee to seek compensation from an insurance company, instead of his employer. We think the objections urged to the title of this act are not tenable under the decisions of this and other courts." Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 22, 153 NW 49. (2) "We have concluded that the subject of the act is stated in the title, and that there is not more than one subject contained therein. The ends to be reached are more than one, but all relate to the ings for the compensation of certain employés, etc. The employer is liable when he is not a subscriber to the insurance association, and the act then further provides what compensation the employé may receive from the association when the employer is a member thereof." Memphis Cotton Oil Co. v. Tolbert, (Tex. Civ. A.) 171 SW 309, 312. 33. Lewis, etc., County v. State Industrial Acc. Bd., (Mont.) 155 P 268. 34. Purdy v. Sault Ste. Marie, (Mich.) 155 NW 597; Allen v. Millville, 87 N. J. L. 356, 95 A 130. 35. Adams v. Acme White Lead, etc., Works, 182 Mich. 157, 148 NW 485, LRA1916A 283 and note [dist In re Hurle, 217 Mass. 223, 104 NE 336, LRA1916A 279, AnnCas 1915C 919, and In re Johnson, 217 Mass. 388, 104 NE 735, on the ground that there was in Massachusetts no constitutional provision similar to Mich. Const. art 5 § 21]. 36. Evanhoff v. State Industrial Acc. Commn., 78 Or. 503, 154 P 106 (where the court, however, was influenced by the construction followed and acquiesced in by the legislature, and by the disorganization of public business and the destruction of private pecuniary rights which would follow a declaration of the unconstitutionality of the act). 37. Peet v. Mills, 76 Wash. 437, 136 P 685, LRA1916A 358 and note, AnnCas1915D 154 and note (holding that L. [1911] c 74 precluded an action by an injured employee against the president of an employer corporation individually). 38. See Statutes [36 Cyc 976]. 39. Consumers' Lignite Co. V. Grant, (Tex. Civ. A.) 181 SW 202; Memphis Cotton Oil Co. v. Tolbert, (Tex. Civ. A.) 171 SW 309, 313 (where the court said: "If the sections of the act authorizing the creation and regulation of Texas Employers' Insurance Association are unconstitutional, because not authorized under the general incorporation law of this state, the sections of the law involved in this suit are not so connected with the insurance sections as to render void the sections relating to contributory negligence, assumed risk, and fellow servant"). Compare Sexton v. Newark Dist. Tel. Co., 84 N. J. L. 85, 91, 86 A 451 [aff 86 N. J. L. 701, 91 A 1070] (where the court said of P. L. [1911] p 134; "Sections 1 and 2 providing two entirely different schemes-one regulative of the common law, and the other purely the creature of statute -are so interwoven and constitute so completely one single plan that it is unlikely that if section 1 is bad the legislature intended that section 2 should stand. Indeed, the contrary is expressly provided in paragraph 24 of the act. It is therefore necessary to consider the objections 40. See statutory provisions; and Consumers' Lignite Co. v. Grant, (Tex. Civ. A.) 181 SW 202; State v. Clausen, 65 Wash. 156, 197, 117 P 1101, 37 LRANS 466 (where the court said: "In section 27, the legislature has made it clear that it did not intend the provisions relating to those who are entitled to partake of its benefits to be so far an integral part of the act that it could not be eliminated in part without destroying the act in its entirety. It is there expressly provided that the adjudication of invalidity of any part of the act shall not affect the validity of the act as a whole or any other part thereof. This means that the legislature intended the act to be enforced as far as it may be, even though it might not be valid in its entirety. It was competent for the legislature SO to provide. Anything it could have eliminated itself and left an operative act, can be eliminated by the courts without destroying the entire act, if it is the will of the legislature that the remaining parts of the act shall stand after such elimination. So here, if it be true that the legislature has gone too far in this direction, and has attempted to include within its benefits certain employees who cannot be included without including employees generally, these can be omitted in the administration of the act without the necessity of nullifying the entire act. But whether any such workmen are so improperly included, we shall not here determine. The question can best be met when it arises during the course of the act's administration"). 41. U. S.-Meese v. Northern Pac. R. Co., 206 Fed. 222 [rev on other grounds 211 Fed. 254, 127 CCA 622 (rev U. S.)]. Iowa.-Hunter v. Colfax Cons. Coal Co., 154 NW 1037. Mich.-Mackin V. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49. N. H.-Wheeler V. Contoocook Mills Corp., 77 N. H. 551, 94 A 265. N. J.-Sexton v. Newark Dist. Tel. Co., 84 N. J. L. 85, 86 A 451 [aff 86 N. J. L. 701, 91 A 1070]. R. I.-Sayles v. Foley, 96 A 340. [a] Illustrations.-(1) An employee who has had an opportunity to elect between his common-law action and the compensation provided for by the act, his employer having elected to come under the act, cannot question the validity of the act on the ground that the employee of a nonaccepting employer has no such election, since the complaining employee cannot raise such question in the absence of an invasion of his rights by the provision attacked. Sayles v. Foley, (R. I.) 96 A 340. (2) An employer who has not accepted the act cannot complain of alleged discriminations and in |