any limitation by law on the amount to be recovered for injuries resulting in death, or for injuries to person or property. This was held to guarantee rights which the law in question violated by reason of the limitation of amounts, and also by the provision that a workman might make a contract of waiver which would be binding both upon himself and upon all persons claiming under or through him. On rehearing, however, it was suggested that the mere fact of waiver would not be objectionable if free choice in making the same was secured, the court having held in the first instance that though the act was elective in form it was in fact compulsory. A further objection to the act was found in the fact that where the employer accepted the statute, the employee was automatically drawn into the contract and made subject to the provisions of the law on pain of being deprived of all his causes of action. Another provision of the statute was held to violate the employer's rights in that where a fatally injured workman left no dependents a fixed amount was to be paid to the State compensation board for its own use, barring the estate or personal representatives from any claim. This was held to violate another provision of the constitution (sec. 241), which gives a right to sue for damages in case of injuries causing death, and the court ruled that a law to be valid. must not thus restrict the rights of personal representatives nor compel contributions to the State fund. The legislature of 1916 undertook to avoid the defects indicated, in the enactment of a new law. This law was before the court of appeals of the State in June of the year of enactment, a test case having been made to secure an early decision as to its constitutionality (Greene v. Caldwell, 186 S. W. 648). It was upheld in all points, the elective provisions being extended to employer and employee alike. The restriction of the amount of recovery was held not to conflict with the clause of the constitution forbidding the limitation of the amount of recovery, since it was optional with the claimant to accept the compensation law in the first instance. Having accepted it he was not in a position to complain of the limits set by the new law, and in the absence of constitutional objections, the wisdom and propriety of the law were held to be for the legislature to determine without interference by the courts. The most recent decision in this field is that of the Supreme Court of Pennsylvania, sustaining the compensation law of that State (Anderson v. Carnegie Steel Co., 99 Atl. 215, July 1, 1916). The contention was made in this case that the abrogation of the customary common-law defenses where an employer failed to accept the provisions of the act was a deprivation of property without due process of law. This was denied by the court, which held that there was no violation of rights in the mere enactment of a new rule of conduct, subject to be changed at the will of the legislature, in the absence of constitutional limitations, which do not exist in the present instance. The same view was taken as in the Kentucky case above of the point raised as to the limitation on the amount of recovery for fatal injuries, the court saying that it was only after the parties to the contract of employment had agreed to such a limitation that it became effective.1 JURY TRIAL. A contention made in connection with the question of due process of law, but as a specific point, was that the system of awards proposed was an abrogation of the right of trial by jury in violation of constitutional rights. The Supreme Court of New Jersey (Sexton case) in speaking of this point said: "This contention totally misconceives the proper construction and effect of the constitutional provision in question. The language with respect to this mode of trial is that it shall remain inviolable, not that it shall be unalterable. It is therefore a privilege which may be waived by either party and not an absolute right which is not the subject of such a waiver." It was pointed out that there had been for a number of years provisions for the waiver of the right of jury trials, and that provisions of this sort had been uniformly held to be constitutional. In the foregoing case it is obvious that the matter of election or option was of the essence of the opinion; but in Washington (Clausen case) the subject of a fixed rule was before the court, and it was objected that "the legislature can not fix a procrustean rule for the admeasurement of damages arising from injuries received by one in the employment of another," as both parties were entitled to have the question of right and amount submitted to a jury. The court having held, however, that for the privilege of engaging in business of certain sorts the State might properly require contributions to a benefit fund, it concluded that it might also require employees entering into contract relations with employers of the foregoing class to receive a given sum for such injuries as they might incur during employment. In this view the legislature would be authorized to provide that if a workman was injured while so engaged he should receive a "sure award in a limited sum as compensation for his injury and in lieu thereof shall forego his common-law action in damages therefor. The desirability of this substitution is unquestioned, and we believe that the legislature had the power to make it without violating any principal of the fundamental law." * * * 1 After the above was in type (January, 1917) the Supreme Court of Oklahoma upheld the compulsory law of that State against the contention that it does away with due process of law, right of trial by jury, and the common-law defenses, holding it constitutional in all points (Iten v. Biscuit Co., Pac. -). A similar conclusion was reached by another line of argument, the court saying that "the right of trial by jury accorded by the constitution, as applicable to civil cases, is incident only to causes of action recognized by law." If, therefore, the legislature is able to take away the cause of action on the one hand and the ground of defense on the other and merge both into a statutory indemnity, the right to sue has fallen and with it, of necessity, the right of jury trial. The United States Circuit Court of Appeals, while discussing the Washington statute (Raymond v. Chicago, Milwaukee & St. Paul Railway Co., 233 Fed. 239), pointed out that the guaranty of the Federal Constitution as to trial by jury does not prevent the establishment of a process of law in which trial by jury is omitted. In the Montana (Cunningham) case also it was pointed out that the Constitution of the United States does not guarantee a trial by jury in a civil action in a State court, citing a decision by the Supreme Court of the United States. It was said, further, that the provision of the State constitution that the right of trial by jury shall be secured to all and remain inviolate had been construed by the court as applying only to those cases wherein a right of trial by jury existed at the date of the adoption of the constitution. It was held therefore that such guaranty would have no reference to claims against an indemnity fund such as are provided for by the act in question, since the adjustment of claims under the act is administrative and not judicial, nor does due process of law necessarily require a jury trial, citing Montana Co. v. St. Louis Min. Co. (152 U. S. 160; 14 Sup. Ct. 506). The Supreme Court of Massachusetts pointed out that under the law of that State an employee retained the right to jury trial as to the facts as to whether the employer had insurance and whether the employee had given the statutory notice not to be bound by the act; but failure to give such notice was a waiver of the right to trial by jury, which was not a compulsory deprivation, but optional with the employee. (Young v. Duncan, 106 N. E. 1.) The elective character of the Illinois statute was also pointed out by the supreme court of that State as relieving it of the charge of depriving parties of the right of trial by jury (Deibeikis v. Link-Belt Co., 104 N. E. 211); by the Supreme Court of Iowa for the law of that State (Hunter v. Colfax Consol. Coal Co., 154 N. W. 1037); the Supreme Court of Pennsylvania for its law (Anderson v. Carnegie Steel Co., 99 Atl. 215); and the Supreme Court of Rhode Island in sustaining the constitutionality of its law (Sayles v. Foley, 96 Atl. 340). Somewhat broader in its form was the charge made against the New York statute that it deprives plaintiffs of their right to recover for torts, in reply to which the court of appeals declared that there is no deprivation, but a substitution, which, if restricted, is yet a remedy, and this restriction may be viewed as the employee's contribution to the insurance fund, the employer discharging his obligation by the payment of premiums. (Jensen v. Southern Pacific Co., supra.) The matter was disposed of by the Supreme Court of Texas by saying that the right of trial by jury can not be claimed in an inquiry that is nonjudicial in its character or with respect to proceedings before an administrative board, such as the accident board provided for by the act (Middleton v. Texas Power & Light Co., 185 S. W. 556), while a district court of the United States emphasized the elective nature of the Iowa statute, saying that the constitutional guaranty of the right of trial by jury, as well as of liberty to contract and of due process of law, could be waived, either expressly or by common consent or acquiescence. (Hawkins v. Bleakley, 220 Fed. 378.) LIABILITY WITHOUT FAULT. Perhaps the ground on which the New York court of appeals most strongly condemned the first compulsory law of that State was that it charged the employer with a liability without fault. The point was argued at considerable length, and the cases offered in support of such liability were examined and held to be inapplicable to the questions under consideration by the court, and the conclusion was therefore reached that the law in question contained no justifying provision that would warrant the imposition of such liability. It contains not a single provision which can be said to provide for the safety, health, or morals of the employees therein specified, nor to impose upon the enumerated employers any duty or obligation designed to have that effect. It does not affect the status of employment at all, but reads into the contract between the employer and employee without the consent of the former a liability on his part which never existed before and to which he is permitted to interpose practically no defense, for he can only escape liability when the employee is injured through his own willful misconduct (Ives case). The Supreme Court of Washington (Clausen case) held with equal vigor that the valuable ends in view and the reasonable provisions of the law for the securing of those ends warranted the imposition of such liabilities as were enforced by the law of that State, so that in the exercise of the police power for the promotion of the welfare of the State a sufficient warrant existed for the fixing of the liability in question, citing in this connection an extended list of cases, some of which the New York court had noted and distinguished. In a case decided by the Supreme Court of Wisconsin (City of Milwaukee v. Miller, 144 N. W. 188), in discussing the nature of compensation laws, the court referred to the old rule of liability as being based on "the common-law principle that he who tortiously injures another in his person or his property incurs a legal liability to make good to that other all the loss which is directly and naturally caused thereby, regardless of any element of reasonable anticipation of consequences." The court then said: "This extreme and rather harsh rule is characterized by a penal element, grounded on the moral turpitude of the wrongful act. Under the statutory system for dealing with personal injury losses incident to performance of the duties of an employer they are regarded as mutual misfortunes to be charged up, as directly as practicable, to the cost of production. The right to have the employer regarded as an agency to make payment to the employee and absorb the same as an expense of the industry, regardless of whether the loss is attributable to any human fault, is a legislative creation within the constitutional exercise of the police power to legislate for the public welfare." The Supreme Court of California took up the question in very much the same manner as that of Washington, assuming the power of the legislature to declare a liability without fault as a matter of public policy. It pointed out that it was generally admitted that the common-law defenses of the employer can be abrogated, and declared that the rule of fault was neither more sacred nor more necessary. At common law, in the absence of fault, the burden of the accident fell on the employee; and by declaring the liability of the employer in such cases, the legislature was simply exercising its right to shift the burden to the employer, and through him to the industry. It was held that no vested right was disturbed, the statute not being retroactive, and that what was effected was simply a readjustment of the employment status, not forbidden by the fourteenth amendment. (Western Indemnity Co. v. Pillsbury, 151 Pac. 398.) It may be mentioned in this connection that the Arizona compensation law specifically abrogates "the common-law doctrine of liability without fault," in so far as it might be pleaded with reference to the classes of accidents covered by the act; and the courts uniformly rule that the negligence of the employer need not be proved in proceedings under the compensation laws, the question being not one of the right to recover damages for a tort, but the grant of a different right based on the status of the employee as such. ABROGATION OF EMPLOYERS' DEFENSES. In a number of cases the question was raised as to the power of the legislature to abolish the defenses of fellow service, contributory negligence, and assumption of risks, as was done in most of the laws providing for compensation. There was, however, little disagreement by the courts on this point, the New York court of appeals saying that the power of the State to make changes in methods of |