procedure and the rules of law was clearly recognized. "We have said enough to show that the statutory modifications of the 'fellowservant' rule and the law of 'contributory negligence' are clearly within the legislative power. These doctrines, for they are nothing more, may be regulated or even abolished. This is true to a limited extent as to the assumption of risk by the employee." (Ives v. South Buffalo Ry. Co., supra.)

The Massachusetts court (Opinion of Justices) said that the rules of law relating to these three defenses were established by the courts, not by the constitution, and that the legislature may change them or do away with them altogether as defenses. The courts of Wisconsin, New Jersey, and Ohio agree with the opinion of the Massachusetts court, the Ohio court (Creamer case) saying that as to the right to abolish the defense of assumption of risks the great weight of authority is against the New York court, holding that it is subject to the same complete legislative control as the other defenses made. The Supreme Court of Appeals of West Virginia, speaking on this point, says that "the defenses inhibited or barred are such as the legislature had a clear right to eliminate for reasons of public policy." (De Francesco v. Piney Mining Co., 86 S. E. 777.)

A United States district court, considering the elective statute of Iowa, held that the employer had no vested right in the common-law defenses, and that the legislature was authorized to abrogate them, while the Supreme Court of Illinois declares that the right of the legislature to abolish the common-law defenses can not be seriously questioned (Deibeikis v. Link-Belt Co., supra), and when later a nonaccepting employer attempted to carry an appeal to that court on the question, it was said that the constitutionality of this provision had been decided and the question was no longer open in the State. (Strom v. Postal Telegraph Cable Co., 111 N. E. 555.) A similar position was taken by the Supreme Court of Minnesota (Matheson v. Minneapolis Street Ry. Co., 148 N. W. 71), that of New Hampshire (Wheeler v. Contoccook Mills, 94 Atl. 265), and that of Texas (Middleton v. Texas Power & Light Co., 185 S. W. 556).

The contentions made before the Supreme Court of Iowa were that the employee who rejects the act and sues an accepting employer is penalized by reason of the employer's retention of defenses, as compared with employees suing employers who had elected to reject the act. The court maintained that there was no discrimination effected, inasmuch as both employer and employee were subjected to limitations by the statute, and it was not essential that the limitations for the two parties should be identical. (Hunter v. Colfax Consol. Coal Co., supra.)

The Court of Appeals of Kentucky held it within the power of the legislature to abrogate these defenses as to employees in certain cir

cumstances and permit their use in others, the classifications not being such as are forbidden by the constitution of the State. (Greene v. Caldwell, 186 S. W. 648.) As to the provision of this law that provides a different rate of compensation in cases in which the beneficiaries are nonresident aliens, the court made no final statement, but said that if such discrimination should be found unconstitutional it could be eliminated without affecting the remainder of the act.

CLASSIFICATION.

In a number of the statutes under consideration distinction is made between hazardous and nonhazardous industries or occupations. Opponents of the laws seized upon these provisions as points for attacking the constitutionality of the laws on the ground of being repugnant to that provision of the fourteenth amendment to the Federal Constitution which guarantees to all citizens the equal protection of the laws. In discussing the New York statute which applied only to designated dangerous employments, the court (Ives case) noted the claim that the classification was fanciful and arbitrary, but from its examination it concluded that "all the occupations enumerated in the statute are more or less inherently dangerous to a degree which justifies such legislative regulation as is properly within the scope of police power." The Massachusetts court also found nothing unconstitutional in the provision of the proposed law in that State excluding domestic servants and farm laborers (Opinion of Justices). The Supreme Court of Washington, in passing upon this objection to the law of that State, held that "it is well settled that neither the clause of the State constitution prohibiting class legislation nor the clause of the fourteenth amendment to the Constitution of the United States relating to the equal protection of the laws, takes from the State power to classify in the adoption of police regulations" (Clausen case).

The Wisconsin court, in discussing the provision of the law which preserves to employers who elect to come under the law the right to use these defenses in suits by employees who elect not to come under the law, while it takes away the same defenses from employers who do not so elect, held that this was a classification which meets the essential requirements of the constitution. The test prescribed was that the classification must be based on substantial distinctions which make real differences, must be germane to the purposes of the law, and must not be limited to existing conditions only and must apply equally to each member of the class. It was also held in the same opinion that it was not necessary to make a distinction between hazardous and nonhazardous employments as a basis for abrogating the employers' common-law defenses (Borgnis v. Falk).

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Similar was the ruling of the Ohio Supreme Court to the objection that the statute of that State makes an unjust and arbitrary classification and does not affect all who are within its reason as required by the constitution of the State, the law in question exempting employers of less than five workmen from its operation. The court held this classification to be reasonable and proper, since "in the nature of the case the risks of any regular employment are less and the opportunity for avoiding them better where an employee is one of four than when the number is larger," citing from the decision in the Wisconsin case in which it was said that the difference in the situation is not merely fanciful but is real (State v. Creamer).

The Wisconsin statute abrogates defenses when employers of four or more employees fail to come within the act, and this provision was held to be controlling in Cavanaugh v. Morton Salt Co. (140 N. W. 53), so as to bar the defense of fellow service in a workman's suit for damages, the constitutionality of such a provision being assumed rather than discussed.

It is of interest to note that the single compensation case that has thus far come to a decision in the Supreme Court of the United States related to the constitutionality of that provision of the Ohio compensation law which excludes employers of less than five persons from its obligatory application. This was held by the court not to be an unreasonable discrimination, as danger from fellow service is less in smaller establishments. (Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571; 35 Sup. Ct. 167.)

The exclusion of those employees not subject to the hazards of the general business was held proper and reasonable by the Supreme Court of Illinois (Deibeikis v. Link-Belt Co.); while that of Minnesota upheld the exclusion of domestic servants, farm laborers, and casual employees as being within the discretion of the legislature; and the placing of employers rejecting the act and those accepting it in different classes was justified on the ground that those accepting it tender valuable rights to their employees not previously available. (Matheson v. Minneapolis Street Ry. Co., supra.) A similar position was taken by the supreme courts of Michigan (Mackin v. DetroitTimkin Axle Co., 153 N. W. 49), New Hampshire (Wheeler case), and Rhode Island (Sayles case) as to their respective laws.

Involving the question not of constitutionality but of the construction of the law is a case decided by the Supreme Court of Washington (State v. Chicago, M. & P. S. R. Co., 141 Pac. 897), in which the defendant company insisted on a general railroad classification for work in the construction of a tunnel not yet in use, the premium rate for tunnel work being higher. The court held that where operations are separable they should be divided; otherwise the enterprise rate would apply. It was held in this case that separation was feasible, and it was directed.

The exclusion of railroad employees from the law of Texas was justified by the supreme court of that State on the ground of existing special laws applicable thereto; other exclusions were said to be in the discretion of the legislature, not apparently arbitrary, and therefore not such as to invalidate the law. (Middleton v. Texas Power & Light Co.)

EQUAL PROTECTION OF THE LAW.

An objection that was found fatal to the Montana statute was its failure to provide equal protection, not as between different classes of employers or of employees, but as between the employers and workmen to whom the act applied. The law in question was a compulsory cooperative insurance statute, requiring the payment of contributions to a State fund by the employer in his own behalf and in behalf of his employees, permitting him to recoup himself in part by withholding from the employees' wages fixed amounts as their contribution to the fund. Designated amounts were provided as benefits for injured workmen to be paid from this fund, but the workmen were given the option of suing the employer in an action to recover damages for injuries received. This resulted in the compulsory maintenance of a fund by the employers' contribution and a second liability to an action in damages after having made such contribution. This provision of the statute, not essential to its general scheme (which had been declared constitutional by the court), was held to be inequitable and unjust so as clearly to invalidate the law as charging the employer with a double liability and not affording equal protection (Cunningham case). It may be noted that in the local law of Maryland applying to Allegany and Garrett counties (now repealed), the option was permitted employees of accepting benefits from the funds maintained by contributions or to sue the employer for damages. The difficulty which invalidated the Montana law was avoided, however, by permitting the employers to reimburse themselves by withholding from subsequent contributions such an amount as would equal the judgment and costs incurred in the action.

The Court of Appeals of Texas held void the provision of the statute of that State which denies the nonconsenting employees the right to sue a consenting employer, but also held that this provision was severable from others of the act (Middleton v. Texas Power & Light Co., 178 S. W. 956), so that the act as a whole was not thereby invalidated. When this case came to the supreme court of the State, however, it was declared that the act deprived the employee of no property rights, since he had no vested interest in the continuance of the rules of the common law or the continuance of existing law otherwise than as it affected rights accruing thereunder, there being the same right to change the law as to the employee as there was to change the law as to the employer's defenses, which had been deter

mined beyond dispute (185 S. W. 556). In the same opinion the court disposed of all contentions as to the transfer of judicial power to the accident board, jury trial, the validity of the establishment of the State Employees' Insurance Association, etc., and held the law constitutional in all points. An appeal to the Supreme Court of the United States is reported as probable.

As against the contention that the moderate continuing payments under the Washington statute were inadequate as compensation for a serious injury to a young workman, the United States Circuit Court of Appeals held (Raymond v. C., M. & St. P. Ry. Co., 233 Fed. 239) that it was not prepared to say that there was a taking away of the equal protection of the law, since the workman might be in a better position with a fixed monthly benefit running through life than with a mere right to sue, with the necessity of proving the employer's negligence, the uncertainty as to the amount recoverable, and the large reduction of that amount to meet attorney's fees. The law was therefore held to be constitutional.

The question of equal protection arose in a limited field in a case in which the city of Detroit made the point that the law of Michigan was discriminatory in that it is compulsory in its application to municipalities, while it is elective as to private employers. The supreme court of the State denied the contention of unconstitutionality, saying that municipalities are mere auxiliaries of the State and draw their powers from it, so that the prescription of the legislature can not be questioned (Wood v. City of Detroit, 155 N. W. 592). A similar contention was raised by various officers of Ohio municipalities, the allegation being made that the difference in the method of payment of premiums by the State and its subdivisions and by other employers was an undue discrimination. The Supreme Court of Ohio took the same view as that of Michigan, above noted, and further held that any inconvenience resulting from the diversion of taxes from the objects for which they were originally intended could be overcome by the choice and action of the municipalities themselves, the mere fact of inconvenience not affecting the validity of the law. (Porter v. Hopkins, 109 N. E. 629.)

EXERCISE OF JUDICIAL POWERS.

A number of the laws in question provide for their administration and the settlement of disputes by boards or commissions, and these provisions were made the grounds of attack on their constitutionality as conferring judicial powers upon nonjudicial officers. In no case was the contention of unconstitutionality admitted, though the courts found different grounds for sustaining the various laws.

The Montana law conferred certain duties upon the State auditor, which were held by the supreme court of that State to be adminis