have an ideal compensation statute on the books of any of our states, although many of them are praiseworthy as first steps in this form of legislation.

The defects of our compensation legislation do not result alone from legislative expediency and lack of careful investigation. We are as yet young in this field and experience will point the way to many changes, the necessity of which could not be foreseen. Already many features which experience has proved necessary or diminished opposition made possible have been incorporated by amendment of existing statutes. The tendency of amendments is toward liberalization and administrative reform, and toward the correction. of those defects which have become evident in practical operation.1

1.

In the following pages the provisions of existing laws are analyzed with a view to showing the prevailing practice in the essential features of a compensation statute. It is further attempted to indicate the relative desirability of various provisions, to explain the motives for their enactment, and to suggest possibilities of improvement.

Election of Compensation.-Twenty-five states and one territory 2 have adopted so-called elective laws which provide for optional compensation. Neither employers nor employees are forced to accept the pro

'One of the problems of amendment consists in revising or eliminating provisions inserted in slavish imitation of unsuitable models.

2 Ariz., Colo., Conn., Ill., Ind., Ia., Kan., Ky., La., Me., Mass., Mich., Minn., Mont., Neb., Nev., N. H., N. J., Ore., Penna., R. I., Tex., Vt., W. Va., Wis., Alaska.

visions of the act and either may elect to remain under the system of employer's liability. This privilege of election is of little practical significance, however, for the alternative to acceptance is highly disadvantageous to both classes. The employer who refuses to elect the act is, in practically all cases, made liable for damages under the common law with the defenses of assumption of risk, common employment, and contributory negligence removed. If the employee rejects the act the employer is permitted to make use of these defenses.3 Further, in practically every act, election is automatic employers and workmen are presumed to have elected compensation unless they serve notice to the contrary. These provisions achieve the purpose for which they are inserted, that of bringing the majority of the laboring population under the compensation act. Those who do not take the trouble to consider the question are reached by the automatic application of the law while those who investigate usually prefer to accept rather than take the risks of a suit at law under the new code of liability. Rejection is confined to a small group of reactionaries and nonhazardous trades.4

There is little need of advising the acceptance of a

In the Pennsylvania Act the defenses are removed even though the employee rejects the law. The defense of contributory negligence is not abrogated if the accident is caused by the employee's intoxication, or by "reckless indifference to danger." *In Texas and West Virginia the compensation act is elective as to employers and compulsory on employees if the employer has elected it. In Arizona the act is compulsory on employers but the employee may elect to sue under the common law after the injury has occurred.

properly drawn compensation act at this time and it should be pointed out that election of compensation on the part of both employers and employees is proceeding to a much greater extent than formerly from a new concept of social values and from the promptings of "enlightened self-interest." Where formerly it was necessary to make a law elective for conciliatory reasons, its necessity now rests on grounds of constitutional law. It is to be hoped that even this necessity will disappear.

In seven states and one territory 5 workmen's compensation has been made compulsory. Four of these extend compulsion to most employments subject to the act but provide that in certain employments the act shall be elective; and in Ohio, while compensation is compulsory, as a penalty on the employer for failing to comply with certain provisions, the injured employee is entitled to bring suit at common law with the three defenses removed or have compensation awarded under the terms of the act, as he may choose. Nearly one-half of the elective acts are compulsory as to public bodies.

There is little to be said in favor of an elective law on grounds of principle. There is no good reason for leaving to individual discretion the acceptance of a measure of social justice so universally approved as workmen's compensation-compulsion should be applied wherever possible. It is true that an elective

5

Cal., Md., N. Y., O., Okla., Wash., Wyo., Hawaii. The federal act is also compulsory. Map No. 1, p. 107, shows the states which have adopted compensation laws and indicates the nature of each, whether elective or compulsory.

law is better than none at all and that in some jurisdictions an elective clause is necessary if the law is not to be declared unconstitutional, but the necessity of inserting a clause which is no more than a trick to evade the constitutional question is subversive of good legislative practice and furnishes an argument in favor of constitutional amendment.

Employments Covered.-No compensation law in the United States covers all employments, except the federal act, which covers all civil employees of the United States government. Express exception is made of certain classes, and enumeration of those to which the law applies is included in its provisions. Some statutes cover all employments with the exception of casual labor or labor not in the "usual course of business" of the employer. About one-half of the acts cover all employments except domestic service, agricultural labor, and casual labor. Eleven states restrict the operation of the law to employers having a certain number of workmen —others specifically except outworkers, while several restrict the operation of the act to employees who receive earnings below a specified maximum. Employees of railroads engaged in interstate commerce are usually excluded from the operation of the act, and in some cases employees in important industries are excluded, evidently through the pressure of important business interests. Enumerations of specific employments or of classes of employ

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7

"In eight of these the number is set at five; in one, at ten; in one, at four, and in one, at two.

E. g., the exception of cotton ginning in Texas and the exception of distilleries in the first Kentucky law.