1918 (Bulletin 87, pp. 37-41). The objection of the employers from the standpoint of constitutionality in these cases was that they were being required to pay compensation to persons who were not their employees and the reply of the courts was that the new 19 of article 1 of the Constitution of New York was broad enough to warrant legislation compelling all employers to contribute to a state fund for general compensation of industrial accidents, let alone legislation compelling them under certain circumstances to contribute a comparatively modest fixed sum to a state fund specially needed for a particular class of

cases.

C. PAYMENT OF PRESENT VALUE OF AWARDS INTO STATE FUND, § 27

The Appellate Division and the Court of Appeals, upon ground that the State Industrial Commission has misconstrued and overstepped its powers under § 27, have declared ineffective certain. omnibus orders of the Commission requiring mutual insurance companies and self-insurers to pay the present value of awards into the state insurance fund: Adams v. N. Y., Ontario & Western Ry. Co., 175 App. Div. 714, Nov. 29, 1916; 220 N. Y. Rep. 579, Jan. 30, 1917; Sperduto v. N. Y. City Interborough Ry. Co., 186 App. Div. 145, Jan. 8, 1919; 226 N. Y. 73, March 18, 1919 (Bulletin 95, pp. 162-178).

The appellant in the Sperduto case argued that § 27 was unconstitutional if construed to permit of the Commission's omnibus resolution, because it deprived the employer of his property without due process of law, denied the insurance carrier the equal protection of the laws and delegated legislative powers to the Commission. Appellant found denial of equal protection in the Commission's unbridled discretion and instanced People v. Klinck Packing Co., 214 N. Y. 121, in which the Court of Appeals had declared unconstitutional an item of the Labor Law which conferred broad discretionary powers upon the Commissioner of Labor.

In deciding the Sperduto case, the Appellate Division said:

The Commission has proceeded upon the theory that the legislature has substantially given it the power to reverse section 25 and arbitrarily to make new laws in certain cases a power which the legislature has not the authority to give.

If the Commission has correctly construed section 27, it is clearly unconstitutional. But the courts will hesitate in construing a statute in a way which makes it unconstitutional, and will go to the limit of construction in sustaining it.

In commenting upon the Sperduto case the Court of Appeals was careful to say:

We do not mean to intimate that section 27, as amended by chapter 705 of the Laws of 1917, is a valid legislative enactment. That question is not before us and we do not consider it.

D. LUMP SUM PAYMENTS, § 16, SUBD. 2; §§ 17, 25

The arguments and court opinions in the Adams and Sperduto cases led the appellant in Dodd v. 461 Eighth Ave. Co., to argue that lump sum commutations were generally unconstitutional (S. D. R., vol. 16, p. 427, April 8 and Nov. 12, 1918). The appellant intimated that such commutations take property without due process of law, are not a reasonable exercise of the police power and are arbitrary and unreasonable from the standpoint of natural justice and cited certain passages in the United States Supreme Court opinion in New York Central R. R. Co. v. White as sustaining these points. The courts, however, upheld the lump sum award to Dodd's widow and daughter: 188 App. Div. 941, May 1, 1919; 227 N. Y. Rep., Oct. 21, 1919. Their decisions were without opinion.

The United States Supreme Court has held that the question whether compensation should be paid in a single sum, or in instalments, is a matter, of detail for the State to determine': American Knife Co. v. Sweeting, and other cases, below, page 17.

E. THE DISFIGUREMENT CLAUSE, § 15, SUBD. 3.

In case of an injury resulting in serious facial or head disfigurement the Commission may in its discretion, make such award or compensation as it may deem proper and equitable, in view of the nature of the disfigurement, but not to exceed three thousand five hundred dollars.

This so-called "beauty clause" was inserted in the New York Workmen's Compensation Law subsequent to the United States Supreme Court decision which generally upheld the constitutionality of the act. It was therefore without the pale of that decision. The New York courts held it constitutional in Sweet

ing v. American Knife Co., Bianc v. N. Y. Central R. R. Co., and Vaughn v. Clark Knitting Co., 186 App. Div. 925, 926, Nov. 13, 1918; 226 N. Y. 199, 586, April 8, 1919, the Appellate Division without, and the Court of Appeals with opinion. The appellant argued: "An award for disfigurement is not compensation but damages;" the term compensation is limited to loss of earning power; disfigurement does not necessarily involve such loss; since an award for disfigurement is damages, the proper remedy for disfigurement is an action for damages under employer's liability law; an action for damages involves questions of negligence and trial by jury; because disfigurement awards under the compensation law ignore fault and trial by jury, the disfigurement clause is unconstitutional. Appellant cited the opinion of the United States Supreme Court in New York Central R. R. v. White to effect that the compensation law "applies only to disabling or fatal personal injuries" and makes no attempt to compensate physical suffering which must be borne by the employee alone, since the laws of nature prevent it "from being evaded or shifted to another;" and also — with averment that the money allowance of the disfigurement clause is unreasonable and the method of fixing it arbitrary cited the same opinion to effect that the scale of compensation set up by law may be insupportable because "insignificant on the one hand or onerous on the other."

In overruling these arguments, the Court of Appeals held that facial disfigurement does involve loss of earning power but that the statute will stand even if it does not. It said:

Pain and suffering are part of the risks of employment. The legislature may make them part of the risks of insurance. The only restriction on its power is that the burden must be reasonable.

It also said that award for disfigurement is not redress for tort but allotment of insurance and that discretionary power in the Commission for fixing the amounts of disfigurement awards makes for justice. It noted that the New York constitutional amendment of November 4, 1913, inserting the new § 19 in article 1, permits of compensation without trial by jury, as concerns the state constitution, and vests the legislature with unlimited power power to prescribe the methods of determining compensation.

In a concurring opinion, Judge Pound agreed with the majority that disfigurement involves loss of earning power but discovered possible conflict with the Fourteenth Amendment to the Constitution of the United States in a theory that an employee may have compensation for injuries not involving such loss. He cited New York Central R. R. v. White in support of his position.

The full texts of the majority and concurring opinions of the Court of Appeals in the Sweeting case are in Bulletin 95, pages 75-78.

Appeal having been taken to the United States Supreme Court in the Sweeting, Bianc and Vaughn cases, that court was as liberal as New York's highest court in sustaining the disfigurement clause without regard for loss of earning power, concurrent awards or lump sums. It gave opinion as follows:

NEW YORK CENTRAL R. R. Co. v. BIANC, AMERICAN KNIFE Co. v. SWEETING and CLARK KNITTING Co. V. VAUGHN, 250 U. S. 596, Nov. 10, 1919. Mr. Justice PITNEY delivered the opinion of the Court.

The Workmen's Compensation Law of the State of New York (chap. 816, Laws 1913, as amended and re-enacted by chap. 41, Laws 1914; Cons. Laws, chap. 67), which was sustained by this court against attacks based upon the Fourteenth Amendment in New York Central R. R. Co. v. White, 243 U. S. 188, was amended by Laws 1916, chap. 622, among other things by inserting in the 15th section, which contains the schedule of compensation for cases of disability, a clause reading as follows: "In case of an injury resulting in serious facial or head disfigurement the Commission may in its discretion, make such award or compensation as it may deem proper and equitable, in view of the nature of the disfigurement, but not to exceed three thousand five hundred dollars."

The present writs of error bring up for review three judgments of the Court of Appeals of that State, affirming orders of the Supreme Court, Appellate Division, Third Judicial Department, in which awards based upon this amendment were sustained. The opinion of the Court of Appeals, applicable to all of the cases, is reported under the title of Matter of Sweeting v. American Knife Co., 226 N. Y. 199.

In each case the Commission found accidental injuries sustained by an employee in a hazardous occupation, arising out of and in the course of the employment, and, as a result of the injury, some serious facial or head disfigurement, or both. In each case an award was made on account of such disfigurement irrespective of the allowance of compensation according to the schedule based upon the average wage of the injured employee and the character and duration of the disability.

The sole contention here is that the amendment of 1916, as thus carried into effect, deprives the respective plaintiffs in error of property without due process of law, in contravention of the Fourteenth Amendment.

The argument is that an award for disfigurement, made wholly independent of claimant's inability to work, is not based upon impairment of earning power; that only such impairment can justify imposing upon an employer without fault compulsory payment by way of compensation to an injured workman; and hence that the "disfigurement clause" is not a reasonable exercise of the police power, but is arbitrary and oppressive.

In view of our recent decisions sustaining state laws imposing upon employers in the hazardous industries responsibility in one form or another for the consequences of injuries received by employees in the course of the employment in the absence of fault on the employers part (New York Central R. R. Co. v. White, 243 U. S. 188; Mountain Timber Co. v. Washington, 243 U. S. 219; Arizona Employers' Liability Cases, 250 U. S. 400), little need now be said.

Even were impairment of earning power the sole justification for imposing compulsory payment of workmen's compensation upon the employer in such cases, it would be sufficient answer to the present contention to say that a serious disfigurement of the face or head reasonably may be regarded as having a direct relation to the injured person's earning power, irrespective of its effect upon his mere capacity for work.

Under ordinary conditions of life, a serious and unnatural disfigurement of the face or head very probably may have a harmful effect upon the ability of the injured person to obtain or retain employment. Laying aside exceptional cases, which we must assume will be fairly dealt with in the proper and equitable administration of the act, such a disfigurement may render one repulsive or offensive to the sight, displeasing, or at least less pleasing, to employer, to fellow employees, and to patrons or customers. See Ball v. Wm. Hunt & Sons, Ltd., [1912] App. Cas. 496.

But we cannot concede that impairment of earning power is the sole ground upon which compulsory compensation to injured workmen legitimately may be based. Unquestionably it is a rational basis, and it is adopted for the generality of cases by the New York law. But the Court of Appeals has construed the 1916 amendment as permitting an allowance for facial or head disfigurement although it does not impair the claimant's earning capacity. Matter of Erickson v. Preuss, 223 N. Y. 365, 368; and see opinion of Judge Cardozo in the present case, 226 N. Y. 199, 200. In view of this, and there being no specific finding of such impairment in these cases, it is proper to say that in our opinion the "due process of law" clause of the Fourteenth Amendment does not require the States to base compulsory compensation solely upon loss of earning power.

The New York law as at first enacted, the Washington, and the Arizona laws presented for our consideration three different methods adopted for the purpose of imposing upon the industry the burden of making some compensation for the human wastage attributable to the hazards of the work. We were unable to find that any of these ran counter to the "due process" clause. Nor does that provision debar a State from adopting other methods, or a composite of different methods, provided the result be not inconsistent with fundamental rights. As was stated in the Arizona case, 250 U. S. 429: "If a State recognizes or establishes a right of action for compensation to injured workmen upon grounds not arbitrary or funda