trative and not judicial, while the suggestion that he might in certain cases be called upon to exercise judicial power was said to be of no persuasive force, since such procedure would be altogether voluntary on his part and he might resort to the courts if he so desired. (Cunningham v. Northwestern Improvement Co., supra.)

The industrial commission provided for in the Wisconsin statute was said by the court of that State not to be a court, and the act was construed as not vesting in this commission judicial powers within the meaning of the constitution. "It is an administrative body or arm of the Government, which in the course of its administration of the law is empowered to ascertain some questions of fact and apply existing law thereto, and in so doing acts quasi-judicially; but it is not thereby vested with judicial power in the constitutional sense." It was held that the act made no attempt to confer on the board power to consider and determine its own jurisdictional authority, but that courts were open for appeals from its findings on any one of three grounds, first, that the board acted without or in excess of its powers; second, that the award was procured by fraud; and, third, that the findings of fact did not support the award. In view of these provisions the court held that there was no violation of the constitution in conferring such powers on the commission as it was authorized to exercise. (Borgnis v. Falk, 147 Wis. 327; 133 N. W. 221; see also Menominee Bay Shore Lumber Co. v. Industrial Commission, 156 N. W. 151, where the ruling that the commission is not a court was incidental to a decision that a minor needs no guardian in order to appear before it.)

Similar considerations were involved in the discussion of the Ohio statute, and like conclusions were reached by the court in this case. (State v. Creamer, supra). It was said that the board of awards created by the act was purely an administrative agency with duties referring to the creation and administration of the insurance fund, and the fact that it is empowered to classify persons to come under the law and to ascertain facts as to the application of the fund does -not invest it with judicial power within the constitutional sense; so also of the Texas statute (Middleton v. Texas Power & Light Co.) and that of Kentucky (Greene v. Caldwell).

The law authorizing the industrial accident board of Michigan was held not to be unconstitutional, on the ground that it is merely an administrative agency available at the option of the parties interested (Mackin v. Detroit-Timkin Axle Co., 153 N. W. 49). In Iowa also it was held that though the right of appeal from the decisions of the commission was more restricted than under the laws of a number of other States, there was no excessive delegation of judicial powers, since the conditions and amounts of awards are fixed by statute, and further, an acceptance of the act must precede its appli

cation (Hunter v. Colfax Consol. Coal Co.; Hawkins v. Bleakley, 220 Fed. 378). The elective nature of the law was held by the Supreme Court of Illinois to obviate any difficulty that might otherwise arise on the ground of the exercise of judicial powers by the commission of that State. (Deibeikis v. Link-Belt Co.)

In all the foregoing cases the nonjudicial character of the boards and commissions was affirmed, but the courts of several States adopt another view for identical agencies therein. Thus it was said by the Supreme Judicial Court of Massachusetts that for certain purposes and in certain respects the commission on arbitration and the industrial accident board, provided for by the compensation law of the State, should be classed as courts, though the members are not judicial officers within the constitution. However, as they have power to summon witnesses, administer oaths, make rulings, and render decisions they are in a sense courts, in which proceedings may be had which correspond to actions. (Pigeon v. Emp. Liab. Assurance Corp., 102 N. E. 932.)

Going still further, the Supreme Court of California found the powers of the accident commission of that State to be those of a court, the law giving to it "full power, authority, and jurisdiction to try and finally determine" all proceedings for the recovery of compensation, which are "precisely the same functions that are performed by any court in passing upon questions brought before it." Power thus to act is held to be given by the amendment to the constitution of the State authorizing the enactment of the law and the creation of the board with authority to settle disputes. (Western Metal Supply Co. v. Pillsbury, 156 Pac. 491; Carstens v. Pillsbury, 158 Pac. 218.)

In discussing its law the Supreme Court of Oregon held that the constitution of the State gave the legislature authority to set up new courts if the three departments of the government, legislative, executive, and judicial, are kept properly separate (Evanhoff v. Industrial Accident Commission, 154 Pac. 106). Evidently, the peculiar limitations of the State constitutions afford ground for diverse rulings on the power to establish courts, while the functions of the commissions also vary; but whether on one ground or another, the authority of these bodies has been unanimously upheld.

Somewhat different was the point raised against the statute of Rhode Island, the contention being made that the provision of the act which authorizes employers to maintain benefit schemes as a substitute for the provisions of the act amounted to a delegation of legislative powers. This was overruled by the supreme court on the ground that the establishment and acceptance of such schemes was optional, and not binding as a law would be. (Sayles v. Foley, 96 Atl. 340.)

FREEDOM OF CONTRACT.

The compulsory laws of New York and Washington were because of their nature subjected to scrutiny on the ground that they interfered unconstitutionally with the freedom of contract, and in the New York (Ives) case it was held that this was unwarrantably done, reading into the contract between the employer and employee, and without the employer's consent, a new liability to which he can interpose practically no defense. In the Washington (Clausen) case it was said that personal rights, such as that of contract, are not absolute; "on the contrary, it has been many times said that there is no absolute right to do as one will, to assume any calling one desires, or contract as one chooses; that the term 'liberty' means absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community," citing Frisbie v. United States (157 U. S. 160; 15 Sup. Ct. 586). Other opinions cited were Holden v. Hardy (169 U. S. 366; 18 Sup. Ct. 383), in which the Supreme Court, speaking of the power to limit the hours of labor a workman may be employed in underground mines, said: "This right of contract, however, is itself subject to certain limitations which the State may lawfully impose in the exercise of its police powers"; and State v. Buchanan (29 Wash. 602; 70 Pac. 52), in which a law limiting the number of hours of labor that women might be employed in a day was held constitutional, although requiring the yielding of individual rights.

The Supreme Court of Massachusetts (Opinion of Justices) found no difficulty in disposing of the question of freedom of contract because of the elective or optional feature of the State law, by reason of which employers and employees were alike at liberty to choose whether or not they would accept the provisions of the statute. As to the Wisconsin law it was contended that while it in form presented to employers and their workmen a free choice as to acceptance or rejection of its terms, it was in fact coercive, since the employer is constrained by the abolition of his defenses to accept the act, while the employee will feel himself obliged to come within its provisions for fear of discharge if he does not accept. The court assumed that certain employers would feel themselves able to adequately safeguard their workmen and carry their own risks under the liability laws of the State, even with the defenses abrogated, since under the circumstances of their establishments they would consider that preferable to assuming the burdens of the compensation law. So also it was argued that in all probability a great body of workmen, especially the unskilled classes, would be glad to secure a certain compensation in case of injury instead of accepting the uncertainties of a lawsuit. This phase of the subject was dismissed

as being speculative and conjectural, since no one could say what the practical operation of the law would be. "It is enough for our present purpose that no one can say with certainty that it would operate to coerce either employer or employee" (Borgnis case).

The same situation was developed in the Ohio opinion, in which it was said that "it is urgently insisted that while the law is apparently permissive and leaves its operation to the election of the employer and employees, it is really coercive." The law in question deprived the employer of certain defenses if he failed to elect, election by the employee being presumed if he continued in service, but he might sue in certain cases of the employer's negligence. The system thus provided was held by the court not to be coercive on account of the common-law and statutory rights still preserved to the parties. "As was said in the Wisconsin case, Laws can not be set aside upon mere conjecture or speculation. The court must be able to say with certainty that an unlawful result will follow.' We do not see how such a thing could be said here" (Creamer case).

The New Jersey supreme court took the same view, holding that no coercion was exercised upon either party to the contract of hire. There are two principal parts of the law-one a stringent liability law, and the other a compensation statute-and both parties are free to choose under which of them the employment is to stand. It is provided that in the absence of notice of rejection acceptance of the compensation system is presumed. It was said that it would have been quite as competent for the legislature to have adopted other alternatives, but in its wisdom the particular choice made was the one adopted. "Really, the matter comes down to a question of presumption or burden of proof, which it is entirely within the control of the legislature to regulate so long as the parties are left entirely free to make whatever contract they choose, as they are in this case. We are therefore of the opinion that, as against the objections taken, section 2 is constitutional" (Sexton case).

To the general charge that the laws interfered with freedom of contract, the supreme courts of Illinois and Iowa in the cases already cited (p. 173) give the answer that the statutes are elective, and that if the parties elect, they can not complain of the consequences; so also of the right of the parties to waive remedies otherwise provided and subjecting themselves to such inquiries as to violate the provisions of law as to unreasonable search and seizure, their acceptance of the act being voluntary.

More specifically, the point of the restriction of freedom is raised. against the presumptions as to election. The Supreme Court of Minnesota held that the law of that State was not vitiated as a voluntary and optional one, because express disavowal of its provisions was required (Matheson v. Minneapolis St. Ry. Co.); while the Massachu

setts court declared that a requirement which provides that the law must be rejected at the time of hiring, if the employee does not wish to come under it, is reasonable (Young v. Duncan). Of this provision the Michigan supreme court, speaking of the presumption that the employee will accept where the employer elects, said that the former has a knowledge of the law and a presumptive notice of his employer's action, there being merely an establishment by the legislature of a presumption which can be overcome, the purpose being to avoid uncertainty. (Mackin v. Detroit-Timkin Axle Co.)

A provision of the Arizona law relative to election was held unconstitutional by the supreme court of that State. (Behringer v. Copper Co., 149 Pac. 1065.) This statute gives to the injured workman an option between the compensation law and a suit for damages, which accords with existing provisions of the constitution. The legislature went further, however, and undertook to give to the personal representative of an employee whose injuries were fatal the same option. This the court declared was beyond the power of the legislature, since the representative had only the right to sue, and could be given no right under the compensation act in case the injured man had failed to make the election before his death.

The provision of the law of Pennsylvania forbidding contracts of waiver or agreements for releases prior to the happening of an accident was attacked in a case (Anderson v. Carnegie Steel Co., 99 Atl. 215) which was before the supreme court of that State. The court held that this was in accordance with the declared policy of the State as set forth in an earlier law, the present provision being but an extension of the same, and not an invalid interference with the freedom of contract.

STATUS OF BENEFIT FUNDS.

It

An objection was urged against the constitutionality of the statute of Washington in its provision for the maintenance of a fund to be formed of premiums or contributions by employers, on the ground that this was a violation of the provisions of the constitution requiring equal and uniform taxation of property for public purposes. was held that while the fund was a charge laid on persons engaged in the industries named, imposed by public authority as are taxes, it was not in the meaning of the constitution a tax, as "no acquisition to the public revenue, general or local, is authorized or aimed at. It is to be used, not to meet the current expenses of government, but to recompense employees of the industries on whom the burden is imposed for injuries received by them while engaged in the pursuit of their employment. It is the consideration which owners of the industries pay for the privilege of carrying them on. It is therefore in the nature of a license tax, and can be justified on the principle of