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Especially in the early commission reports great stress was laid on the question of constitutionality, as the laws under consideration were obviously wide departures from the principles that had been applied theretofore. Until the decisions of the courts of several States passing upon the constitutionality of the laws of such States were available, there was nothing of controlling authority to which reference could be made as directly supporting laws of this class. There were, however, carefully worked out arguments presented in the report of the New York commission, as well as in those of Minnesota and Ohio, others devoting less space to this subject. In all these it was necessary to proceed on the basis of analogies, and it was not until the compulsory statute of New York (ch. 674, Acts of 1910) was considered by the courts of that State that there was any direct judicial ruling on the points involved in compensation statutes. This, of course, is excluding from consideration the Maryland statute of 1902, which, as already pointed out, was a cooperative insurance law applicable only to a very limited class of employments. This law was held unconstitutional by the court of first instance on the ground that it deprived the parties of their right to trial by jury, and as conferring judicial or at least quasi-judicial functions on an executive officer. The case was not carried up, so that no opinion of a higher court was ever secured.

Within the few years since the enactment of more general laws, the question of the constitutionality of a type of legislation so widely different from that hitherto in force naturally arose. The formal claim of unconstitutionality has not been made in every jurisdiction, however, earlier decisions doubtless being influential in enforcing the belief that such laws are within the power of the legislatures of the States unless because of unusual provisions in the laws or in the State constitutions.

Under the peculiar system in vogue in Massachusetts, the question of constitutionality was determined in advance of enactment, the State senate having submitted a bill to the supreme judicial court of the State for its opinion on this point. In Ohio the State treasurer refused to pay a bill for supplies for the State board of awards on the ground that the act was unconstitutional, thus enforcing an early decision; in Washington also practically the same method of securing prompt court review was adopted. In the other States, as a gen

1 This section (covering pages 165 to 296) was prepared by Lindley D. Clark, M. A., LL. M.


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