Central Law Journal.

ST. LOUIS, MO., JUNE 18, 1915.

CONSTITUTIONALITY OF STATUTE FORBIDDING DISCHARGE OF RAILROAD EMPLOYE WITHOUT GIVING HIM OP

HIS DEFENSE.

The Supreme Judicial Court of Massachusetts has upon request of the State Senate given its view of the constitutionality of a bill before it providing that: "No employe of a railroad corporation shall be disciplined or discharged in consequence of information affecting the employer's conduct until such employe shall have been given an opportunity to make a statement in the presence of the person or persons furnishing the information." And the court has replied that such a bill, if enacted into a statute, would be unconstitutional. Opinion of the Justices, 108 N. E. 807.

In re

The Justices, in giving their opinion, rely for authority on the cases of Coppage v. Kansas, 35 Sup. Ct. 240 and Adair v. U. S., 208 U. S. 161, which declared statutes enacted by an Act of the Legislature and an Act of Congress unconstitutional, as interfering with the right of employers to discharge employes.

It was said that: "The ground upon which these decisions rest is that the freedom of contract guaranteed by the fourteenth amendment prohibits imposition of such restraints upon the right of the employer to decline to employ a person whom he does not desire." It was impossible for a majority of the Justices to say that "the right of an employer to discharge an employe because of information affecting his conduct in respect of efficiency, honesty, capacity or in any other particular touching his general usefulness, without first providing a hearing, stands on a different footing, or is less under the shield of the constitution than the right held to be secured in the Adair and Coppage cases." The

of an one-sided contract in favor of employes, while it was declared in the cases referred to, that there was absolute right in employe to quit when he chose and absolute right of employer to discharge when he chose. If employer had no objection against an employe, but was exercising his right to discharge for the sake of economy, it even might be declared that a jury could determine whether or not his alleged reason was a subterfuge or made in good faith.

But all of the Justices concurred in the view that the statute was unconstitutional, because the bill was a proposition to enact legislation relative to employes of railroad corporations giving them as a class privileges not enjoyed by the rest of the community.

It was said that: "While reasonable classifications may be made by the legislature in the interests of the public health, public safety and public morals, yet there must be some rational relation between the object to be attained and the classification, in order that it may not violate the constitutional guaranty that all persons, including corporations, shall be equal in the protection afforded by the laws."

The opinion is unable to discern to what of these objects the proposed legislation has any reference whatever and the court concludes that: "There is strong ground for the conclusion that the selection of railroads as the sole object of severely criminal legislation as to a matter having no particular relation to the management of railroads would be arbitrary and hence unwarrantable under the Constitution."

Perhaps this as a constitutional argument ought not to have reflected so much of

It is of little advantage to analyze the arguments either pro or con in such a discussion. It must be admitted, that the system of fee collecting breeds many abuses and tends to make tenure of positions obtained by means of employment agencies very uncertain. It does more than this-it works for discharges of employes howsoever they may have become employed. Vacancies in employment are what these agencies feed upon.

But it must be conceded that an agency to procure jobs for those desiring them is a lawful business, and it may be therefore that it is subject to regulation in the public interest, under police power. Can you, however, call the extinguishment of all remuneration from the conduct of a lawful business, regulation thereof? It looks to us more like its destruc

tion. It virtually says an employment agency is only entitled to have as customers or patrons those who are seeking employes, and well it may be argued, that there is directly an opposite tendency in security of tenure of places that are filled in such a rule.

Another consideration which appears to us important is that the very groundwork of the claim of constitutionality lies in the fact that applicants for work are made "the victims of imposition and extortion" and the system "is therefore detrimental to the welfare of the state." All of this means there is "collusion between agencies and managers of employers which results in shorter time of employment to increase the number of 'jobs'." I greatly doubt whether frauds and deception in the conduct of a lawful business by rascals, who engage in it, ought to justify its prohibition altogether. If there were a statute making it penal for any manager of an employer to have an understanding with an employment agency and vice versa, this would look like a constitutional regulation of the business itself, but it is not regulation to take away all right to compensation from the business as a legitimate business.

PLEADING-FOREIGN LAW AS BASIS OF RECOVERY.-In Walsh v. Walsh, 68 So. 392, decided by Louisiana Supreme Court, one judge dissenting, there seems a liberality in pleading that ought to satisfy the hardiest opponent of all technicality.

An action was brought against a husband and wife upon a note conjointly made in Ireland. In Louisiana a married woman cannot bind herself conjointly with her husband. Plaintiff's petition alleged that "said promissory note and said deed of charge are valid instruments duly executed under the laws of Ireland and that petitioner desires to prove herein that they are such and to tender in evidence the law of Ireland in relation thereto."

If this is anything more than mere statement of a conclusion by the pleader that when a case comes on for trial he is going to submit proof of liability without stating in advance how it arose or on what facts it rested, we fail to grasp its intent. Who knows what will be submitted to support the conclusion? When it is stated that a foreign law must be proved, it is not to relieve a pleader from showing in his pleading the facts of that law, especially when those facts are the very foundation of his action. How has he the right to state a conclusion as to facts in foreign law any more than a conclusion as to any other facts?

mere

The dissent by Provosty, J., cites many cases that statement of a mere conclusion of law is not an allegation of fact.

Latterly the American people are awakening to a newer and fuller realization of the value of the workmen's compensation

law!

State upon state is adopting the measure; where it is not already upon the statute book the legislative committees are considering it, and down in Ohio, in Texas, in Rhode Island, in many other sections, the ambulance-chaser has vanished from the scene; his ancient, if not honorable, profession, vanished before the new compensation law.

In fact, the difference is striking: Mrs. Jack Roosa, with her husband injured fatally at his work in the big, modern factory, need no longer bury her grief, take her children to the nearest orphans' home, and leaving them there, time being, go out scrubbing, in order to feed and clothe their mouths and bodies, and her own. Nor, where, with a mother's yearning-she would keep the youngsters with her, need she take in washing; fill her single room with steamy sudsmells, while she tries to make two ends meet. It's at just those psychological moments of weariness and hunger and the cry of the children, that attorneys for the factories found widows but too ready to "settle," to "accept this or nothing," and, hence, to give in. Or, again ambulance-chasers, who worked on contingencies, would manage to to extract greater per cents for themselves,—on promise of greater, more successful effort!

To-day, workmen's compensation, alias industrial insurance, has changed this. The State Industrial Commission of Ohio, a pivotal state, geographically, makes public the opinions of a great sheet-and-tube concern's attorney on the beneficent result.

"Workmen's compensation," he states, "has attained wonderful prominence.

years; and it's growth appears the more phenomenal when we reflect upon the miserable failure of the first state compensation act, when subjected to the microscopic eye of the state supreme tribunals.

"The members of the bar at large,and their high priests, the courts,-in my humble opinion, made the mistake of viewing this new and strange form, in the early days, as a premeditated assault upon their special prerogatives and preserves; and attorneys forthwith advised their clients, the employers, that their constitutional rights were being atrociously abridged, to the advantage of and the benefit purely of the workingman;and perhaps naturally so; for it has heen indeed hard to reconcile ourselves as lawyers to the drastic changes which compensation laws have wrought in the principles and underlying doctrines with which we have so long been familiar.

"The employer of labor, when he first. was advised of the proposed compensation laws, instantly, I might say instinctively,-opposed the idea of being held responsible, by way of a money-settlement, for his employe's injuries, regardless of his negligence in the premises and he joined his lament with that of the lawyer.

"Then certain of the states, most notably our own, proposed a form of compensation law which took from the 'oldline' stock liability-insurance companies the right to sell liability-insurance in the states;--and then, indeed, was there a hue and cry raised, which, for a time at least, confused and influenced some men of high standing and supposed intelligence into making a vigorous campaign against the law itself,--both in its entirety and against the provisions which were so antagonistic to the insurance contingent.

"Nevertheless, it seems to me that the compensation principles, if logically

analyzed, will be found to rest upon sound economic, legal, social and moral foundations. The contention primarily raised, that under the 'compensation law the employer is deprived of his property, without due process of law,' is, indeed, a fallacious one;-for more readily than before can he estimate his probable accident-cost for a current period and add it to the cost of his finished product; where, of course, it is paid by the ultimate consumer; but in such small proportion and in such intangible fashion, as to pass unnoticed.

"The depreciation and breakage of machinery have always, without question, been a fixed physical cost of manufacture and it made no difference whether breakage was occasioned through any person's negligence or not, the machine had to be replaced, and the cost was, of course, charged to the commodity itself. Does it not seem absurd to place the human cogs in the machinery, or organization, of the factory or workshop on a plane below that of the purely mechanical appliance? Was that not, in fact, what we were wont to do but a very short time since?

An injured workman's recovery depended upon the question of the legal liability of the master, and that liability had so been hedged about with technical defenses that only a small percentage of injured employes received anything;and, unfortunately, the human weakness of greed upon the one hand and selfishness upon the other, made the recovery, in pure liability cases, excessive;-and in non-liability cases made the settlements insufficient, or nil.

"One of our philosophers has said: 'Life is but a gamble and gambling is but the doctrine of the grand average.'

"The principle of workmen's compensation is economically based, in toto, upon the doctrine of average, and the critics of the law itself, in assailing the amounts of the awards, given in dollars and cents, as inadequate, overlook the economic axiom that, taking a very large

number of industrially-injured men, it is better that each receive, as compensation, enough of an award to live upon, in proportion to the nature of his injury and the amount of wages he was earning at the time injured,-than that a few should receive a large amount, by way of judgment, and the majority little or nothing. The adoption of these laws came through necessity, or, at least, to satisfy a great cry, aimed at the very door of bench and bar, to-wit:-that delay, technically and even dishonesty was robbing the injured employe of his due and throwing back, as public charges upon the community, a great number of industrially-injured workmen and their dependents.

". . . . In all fairness, I am of the opinion that our present compensation act is second to none now in force in the various states;—although, of course, it does not, in all of its elements, conform to the ideal of every student of the subject.

"The states now operating under various forms of compensation laws are New Jersey, Arizona, California, Connecticut, Illinois, Kansas, Maryland, Massachusetts, Minnesota, Nebraska, Nevada, New Hampshire, New York, Ohio, Oregon, Rhode Island, Texas, Washington, West Virginia and Wisconsin,-and the matter is under consideration in the legislatures of various other states."

The Bulletin contains some interesting comments on the working out of the law by the same attorney,-as presented before a bar association meeting of the state, from which we quote:

"First, the insurance contingent and their duped friends . . . said that the cost. was excessive, under the state's published premiums, and that, moreover, through lack of actuarial experience, the commission would find the fund bankrupt within a very short time. The best answer to this argument is, that on July 1st the Industrial Commission announced the third reduction in premiums since. compensation was initiated in Ohio;

and, furthermore, as of May 1st, 1914, the Commission's bulletin contained a financial statement which shows a net surplus of... over a quarter of a million dollars out of a total of $2,337,276.51 of premiums collected; and they show, further, a loss-ratio of only 82.5 per cent of their net premiums earned;-and, further, that, generally speaking, taking the average rate of each state as a basis, that for each dollar it costs the Ohio manufacturer in premiums it costs the Michigan employer $3.28 and the Wisconsin manufacturer $3.70. . . .

"The next objection advanced was that, under the provisions of the act, the employer was afforded no legal protection from suits instituted under either of the two exceptions provided in the act. First, where the servant's injury was caused by the willful act of the employer or his agent, and, second, from the failure of such employer or any of his officers or agents to comply with lawful requirements for the safety of these employes. As to the first of these questions, there was no doubt in the minds of of many the eminent lawyers of the state as to what construction should and would be placed upon the meaning of the phrase, or term, 'willful act.' . . . If judicial corrobation is a test those who were dubious were vindicated in some degree by the decision of Judge Day, in the case of McSweeney v. The Standard Boiler and Plate Co. . . . The court... charged the jury that 'wanton negligence' might, in certain cases, be said to amount to a willful act,' and the jury, being naturally somewhat influenced by the strain placed upon the interpretation, reported a verdict for the plaintiff in the sum of $14,000."

.

Mr. Kennedy sums up his discussion of the act by quoting the opinion, among others, of Frank L. Rist, among the bestknown of the labor leaders of the state, to-wit:

"Will say that the Workmen's Compensation Act has given the best satis

faction and is highly appreciated by the wage-earners in Cincinnati. Compensation for injuries and deaths are paid immediately after the approval of the Board of Industrial Commission; upon report of the Director of Claims. Since the law went into effect there were 12 deaths and an average of about 30 injuries a day;—all of which have been adjusted satisfactorily to the dependents of the killed and injured.

"Another benefit, and, in my opinion, a good one, is that the employers are voluntarily placing safety devices around dangerous machinery and in that manner decreasing the number of injuries and increasing the protection of the worker!"

All of which would seem to indicate that, in last analysis, the workmen's compensation law has come as panacea for many of the ills that have so long harassed employer and wage-earner both;-adding its link to the long chain that serves to bind labor and capital in a new entente cordial for another, nearfuture day!