becomes subject to it, and that the employee shall be presumed to have elected to be subject to it and under the plan stated by the employer, unless he shall affirmatively elect not to be bound by it. The employee may revoke his election at any time. The employer may make his election at any time. In case he does so, he becomes subject to the act for the remainder of the fiscal year. After having once made his election, he is bound for the rest of the fiscal year under the plan first elected, and also for the succeeding years, unless within not less than 30 nor more than 60 days before the end of the fiscal year he elects not to be bound by it, or unless within the same time he elects to be bound by some one of the other plans. Such election must be made in the same manner as the original election. It is further declared that when both the employer and employee have elected to be bound by the act its provisions shall be exclusive, and the election shall be held to be a surrender by both of their right "to any other method, form, or kind of compensation, or determination thereof, or to any other compensation, or kind of determination thereof, or cause of action, action at law, suit in equity, or statutory or common-law right or remedy, or proceeding whatever, for, or on account of, any personal injury to or death of such employee," except as such rights are in the act itself specifically granted. The election shall bind the employee himself, and, in case of his death, his personal representative and all other persons claiming under him. The employer is likewise bound, together with those who may conduct his business during liquidation, bankruptcy, or insolvency.

[3] Three plans of compensation are provided for, differing in the mode by which benefits or compensation must be paid to the employee. Since no question is made as to the legal propriety of any of these plans or the mode of payment provided under each of them, it is not necessary to notice their distinguishing features.

The Industrial Accident Board consists of three members-the State Commission of Labor and Industry, the State Auditor, and the Chairman, who is appointed by the Governor for a term of four years, and receives a salary of $4,000 per annum. The other members receive no compensation other than their salaries as state officers. A majority of the board constitutes a quorum for the transaction of business. An appeal may be taken to the district court from any award made by the board, by any person affected by it. The trial in the district court must be de novo. The court may, on good cause shown, permit additional evidence to be introduced; otherwise the hearing must be upon the certified record of the proceedings of the board. If no appeal is taken, the award of the board is final.

We agree with counsel that, when an employee has elected to become subject to the provisions of the act, he may not thereafter prosecute an action for damages against the employer for an injury suffered by him during the course of his employment; nor may his personal representative prosecute such an action in case of his death. But counsel are in error in supposing that for this reason the Compensation Act is repugnant to the section of the Constitution quoted. Their contention is based upon a misconception of the scope of the guaranty therein contained. A reading of the section discloses that it is addressed exclusively to the courts. The courts are its sole subject-matter, and it relates directly to the duties of the judicial department of the government. It means no more nor less than that, under the provisions of the Constitution and laws constituting them, the courts must be accessible to all persons alike, with`out discrimination, at the time or times, and the place or places, appointed for their sitting, and afford a speedy remedy for every wrong recognized by law at being remediable in a court. The term "injury," as therein used, means such an injury as the law recognizes or declares to be actionable Many of the state Constitutions contain similar provisions, and the courts, including our own, have held, either expressly or Im

pliedly, that their meaning is that above stated. Johnson v. Higgins, 3 Metc. (Ky.) foot page 514; Barkley v. Glover, 4 Metc. (Ky.) foot page 39; Templeton v. Lynn County, 22 Or. 313, 29 Pac. 795, 15 L. R. A. 730; Martin's Executrix v. Martin, 25 Ala. 208; Cunningham v. City of Denver, 23 Colo. 18, 45 Pac. 356, 58 Am. St. Rep. 212; Mountain Timber Co. v. State of Washington, 243 U. S. 219, 37 Sup. Ct. 260, 61 L. Ed. 685, Ann. Cas. 1917D, 642; Middleton v. Texas L. & P. Co., 108 Tex. 96, 185 S. W. 556; Cunningham v. Northwestern Imp. Co., 44 Mont. 196, 119 Pac. 554. If the contention of counsel should be upheld, the consequence would be that the Legislature would be stripped of all power to alter or repeal any portion of the common law relating to accidental injuries or the death of one person by the negligence of another.

[4] It is true the Legislature cannot destroy vested rights. Where an injury has already occurred from which the injured person has a right of action, the Legislature cannot deny him a remedy. But at this late day it cannot be controverted that the remedies recognized by the common law in this class of cases, together with all rights of action to arise in future, may be altered or abolished to the extent of destroying actions for injuries or death arising from negligent accident, so long as there is no impairment of rights already accrued. This necessarily follows from. the proposition, well established by the courts everywhere, that no one has a vested right in any rule of the common law. The technical defenses recognized by it in this class of cases, viz. contributory negligence, assumption of risk, etc., may be abolished or modified without transcending any constitutional and constitutional guaranty. Middleton v. Texas L. & P. Co., supra; Mountain Timber Co. v. State of Washington, supra; Cunningham v. Northwestern Imp. Co., supra; State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 Pac. 1101, 37 L. R. A. (N. S.) 466; New York C. Ry. Co. v. White, 243 U. S. 188, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629; Borgnis v. Folk Co., 147. Wis. 347, 133 N. W. 209, 37 L. R. A. (N. S.) 489; Sexton v. Newark Tel. Co., 84 N. J. Law, 85, 86 Atl. 451.

[5] This being so, there is no reason why technical rights of action arising out of the negligence of the employer may not be abolished by the Legislature in the same way. And so it is held by the courts of those states which have enacted compensation laws made compulsory, as in New York and Washington. If this is so, for a much stronger reason may it be asserted that there can be no objection to a compensation law which becomes binding upon the employer and employee at their election, but not otherwise. By way of inducement to the employer to accept the act, it is provided that if he refrains the technical common-law defenses shall not be available to him. As an inducement to the employee, his guaranty of compensation for any injury arising out of his employment becomes absolute, whereas, if he refuses to do so, he still has his action at law subject to all the common-law defenses. The employer cannot object because he has by his affirmative act elected to waive all objections to the extent of his liability and his obligation to make compensation. The employee cannot thereafter object if he fails to give the required notice of his refusal to accept the conditions imposed.

[6] The difference in the modes by which they may indicate their election is not objectionable on the constitutional ground that it discriminates against either employer or employee.

[7] The former is not in this case making any complaint; the latter cannot complain because it was competent for him to waive the advantage of any provision of law which was intended solely for his benefit, so long, as the waiver did not violate, public policy. Rev. Codes, § 6181; Parchen v. Chessman, 49 Mont. 326, 142 Pac. 631, 146 Pac. 469, Ann. Cas. 1916A, 681. He may waive his right to a jury trial in the manner provided by law. Rev. Codes, § 6762; Chessman v. Hale, 31 Mont. 585, 79 Pac. 254, 68 L. R. A. 410, 3 Ann. Cas. 1038. No one has ever questioned the power of the Legislature to provide a means by which the parties

to a conrtoversy may waive a trial by a court and submit the matter to arbitrators selected by themselves, by whose award' they are finally concluded in the absence of fraud, gross error, excess of power, and the like. Rev. Codes, § 7365 et seq.; Solem v. Connecticut Fire Ins. Co., 41 Mont. 351, 109 Pac. 432. Other illustrative cases might be cited. These, however, are sufficient to show that it is no objection to the legislation that the employee, after his election to become subject to the act, is conclusively bound to accept such compensation as may be awarded to him under its provisions. Nor is it a valid objection to it that it provides for a different mode of election by the employee from that provided for the employer. This feature of the legislation has been frequently considered by the courts, and has invarably been declared unobjectionable. The following cases are directly in point: In re Opinion of Justices, 209 Mass. 607, 96 N. E. 308; Young v. Duncan, 218 Mass. 346, 106 N. E. 1; Sayles v. Foley, 38 R. I. 484, 96 Atl. 340; Sexton v. Newark Tel. Co., supra; Borgnis v. Folk Co., supra, Hunter v. Colfax C. Coal Co., 175 Iowa, 245, 154 N. W. 1037, 157 N. W. 145, L. R. A. 1917D, 15,Ann. Cas. 1917C, 803; Hawkins v. Bleakly, 243 U. S. 210, 37 Sup. Ct. 255, 61 L. Ed. 678, Ann. Cas. 1917D, 637; Mathison v. Minneapolis St. Ry. Co., 126 Minn. 286, 148 N. W. 71, L. R. A. 1916D, 417; Deibeikis v. Link-Belt Co., 261 Ill. 454, 104 N. E. 211, Ann. Cas. 1915A, 241; Mackin v. Detroit-Timkin Axel Co., 187 Mich. 8, 153 N. W. 49.

[8] The silence of the employee establishes a presumption that he elects to be subject to the act. It is clearly within the province of the Legislature to establish presumptions and rules relating to the burden of proof, and a statute establishing a presumption of this character is valid, so long as the presumption is not unreasonable and not conclusive of the rights of the parties. Bielenberg v. Montana U. Ry. Co., 8 Mont. 271, 20 Pac. 314, 2 L. R. A. 813; Hawkins v. Bleakly, and other cases cited

supra.

But counsel say that it is not competent for a party to waive the right to have his cause of action determined by a court before the cause of action arises. This court has expressly held under our statute (Rev. Codes, § 6181) that a party may waive in advance the advantage of the statute of limitations because it was intended solely for his benefit. Parchen v. Chessman, supra. If this is true, there seems to be no apelling reason why, under the express authority of the Legislatur he may not at his option waive in advance the advantage of any remedy established solely for his benefit which the Legislature itself may abolish, especially when it has provided a substitute remedy, which renders his right to relief absolute.

[9] It is argued that the act is invalid in that it constitutes the Industrial Accident Board a court, whereas the whole .judicial power of the state is vested in the courts enumerated in section 1 of article 8 of the Constitution. Several of its provisions are cited as evidencing the fact that the functions of this body are judicial. The fallacy of this contention is fully demonstrated by the case of Cunningham v. Northwestern Imp. Co., supra. That case is decisive of counsel's contention. It is true that many of the functions exercised by the board are judicial in character; but that it is not vested with judicial power in the sense in which that expression is used in the Constitution becomes clear upon a moment's consideration. As used in the Constitution, the expression "judicial power" means "the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision." Miller on the Constitution 314. This power the board does not possess. It was created as a purely administrative body. It may hear evidence to enable it to make an award in a particular case, and to that end may call witnesses; but it is without power to render an enforceable judgment. and its determinations and awards are not enforceable by execution or by other process

until a judgment has been entered therein on appeal to a regularly constituted court. Mackin v. Detroit-Timkin Axle Co., supra. In this case, after considering the Michigan act, the court said:

"We conclude that the Industrial Accident Board is a ministerial and aministrative body, with incidental quasi judicial powers, exercised by consent of those electing to be governed by the act, not vested with powers or duties in violation of constitutional limitations."

Hunter v.
Link

The same view is announced in the following cases: Colfax C. Coal Co., supra; Borgnis v. Folk Co., supra; Deibeikis v. Belt Co., supra; Middleton v. Texas L. & P. Co., supra; Pigeon v. Empire L. Ass'n Co., 216 Mass. 51, 102 N. E. 932, Ann. Cas. 1915A, 737; Greene v. Caldwell, 170 Ky. 571, 186 S. W. 648, Ann. Cas. 1918B, 604.

[10] It may be conceded for present purposes that some of the powers vested in the board are such as appertain exclusively to courts; for illustration, the power conferred by sections 18(d) and 18(f) to punish for contempt. Of this, however, the plaintiff cannot complain, as counsel for defendants point out in their brief, for two reasons: In the first place, plaintiff is not about to be tried by the board for a contempt, nor has he been convicted by it. Hence he is in no position to assail these provisions of the act on constitutional grounds.

[11] In the second place, though these provisions are assumed to be invalid, this assumption does not require the conclusion that any other provision is invalid. Section 24(b) declarés:

"If any section, subsection, subdivision, sentence, clause, paragraph, or phrase of this act is for any reason held to be unconstitutional or void, such decision shall not affect the validity of the remaining portions of this act, so long as sufficient remains of the act to render the same operative and reasonably effective for carrying out the main purpose and intention of the Legislature in enacting the same as such purpose and intention, may be disclosed by the act."

An examination of the act in its entirety will disclose that, even though the provisions referred to by counsel are eliminated entirely, there is still enough left to accomplish all the purposes for which the legislation was enacted. The district court of the county in which the board happens to be sitting at the time an appeal is taken, which is elsewhere provided for in the act, has full power to compel the attendance of witnesses and punish them for disregard of subpœnaes issued by the board.

[12] The next contention made by counsel is that the board is an unlawful body because the state auditor, one member of it, holds two offices. By this we presume counsel mean that because the auditor is made a member of the board, and is required to execute a bond to guarantee the faithful performance of his duties, this constitutes him a public officer, in a capacity other than as state auditor. A complete answer to this contention is found in section 1 of article 7 of the Constitution. This section enumerates the state executive officers. It then provides that they shall perform such duties as are prescribed in the Constitution and by the laws of the state: It is not necessary to refer to the constitutional duties enumerated appertaining to the auditor's office. The only limitation imposed upon the Legislature in imposing duties upon the auditor is found in section 1 of article 4. This prohibits the imposition of duties upon him that appertain to the legislative or judicial departments of the government. So long as this limitation is not violated, the Legislature is at liberty to impose any governmental duty upon this officer.

[13] The other contentions made by counsel are that the act denies a jury trial, and that it violates the clause of the Fourteenth Amendment to the Constitution of the United States guaranteeing to the citizen the

equal protections of the laws. What we have said above in discussing the other questions heretofore determined disposes of these contentions. The judgment of the district court is affirmed.

Affirmed.

Holloway and Cooper, JJ., concur.

SUPREME COURT OF NEW HAMPSHIRE.

MERRIMACK.

CALLAHAN

V.

BOSTON & M. R. R. (No. 1568.)*

1. COMMERCE EMPLOYERS' LIABILITY ACT-"INTERSTATE

COMMERCE"-TEST.

The test of whether or not a locomotive engineer was engaged in interstate commerce within federal Employers' Liabality Act (U. S. Comp. St. §§ 8657-8665) when he was injured is that, if the accident was incident to interstate work or to a whole day's work, partly interstate and partly intrastate, he is engaged in "interstate commerce."

(For other cases, see Commerce, Dec. Dig. § 27[6].)

(For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.)

2. COMMERCE-FEDERAL EMPLOYERS' LIABILITY ACT- AP

PLICABILITY—“INTERSTATE COMMERCE."

Where a locomotive engineer employed by a common carrier, acting under two orders, one to help an interstate freight train to summit and the other to return with his engine, was injured on his return trip, held, he was engaged in interstate commerce within federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665).

(For other cases, see Commerce, Dec. Dig. § 27[6].)

Exceptions from Superior Court, Merrimack County; Branch, Judge. Suit by William E. Callahan against the Boston & Maine Railroad. From a verdict for plaintiff, defendant brings exceptions. Exceptions overruled.

Case under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]) to recover for injuries received by the plaintiff on January 21, 1914. Trial by jury and verdict for the plaintiff. At the time of the accident the defendant was a common ca.rier by railroad engaged in commerce between Vermont, New Hampshire, and Massachusetts, also in commerce within New Hampshire, and the plaintiff wa, in its employ as a locomotive engineer. On defendant's road, near Ashland, N. H., there is a point called the Summit, which is the apex of the grades from north to south and from south to north. At the time of the accident it was necessary to assist *Decision rendered, March 4, 1919. 106 Atl. Rep. 37.

Vol. III-Comp. 40.