Statement of the Case.

For a fourth defense the answer alleged that Section 9012, General Code, is in contravention of the 14th Amendment of the Constitution of the United States.

For a fifth defense, defendant alleged that inasmuch as the supreme court of Ohio had held in the above-mentioned case from the circuit court of Holmes county, affirmed by the supreme court in 88 Ohio St., 539, that this relief department is a lawful organization, and that inasmuch as that company and this defendant have maintained the department on the faith of that decision, if the court were to hold that the plaintiff can recover the penalty sued for it would have the effect of making Sections 9012, 9013 and 9014, General Code, operate as a retroactive law in violation of the constitution of the United States, and would deprive the defendant of its property without due process of law, contrary to the 14th Amendment of the Constitution of the United States.

The sixth defense was that the plaintiff having received benefits from the benefit department is estopped to claim it is unlawful.

By an amendment to the answer defendant set up that the federal congress had legislated on the subject as respects interstate commerce by the act of April 22, 1908; that defendant was engaged in interstate commerce and plaintiff was employed by it therein; that the regulations established by congress are exclusive; and that therefore the provisions of the General Code above referred to no longer have any effect.

Opinion, per JOHNSON, J.

Plaintiff demurred to the third, fourth and fifth defenses and to the amendment to the answer. The demurrer was sustained. The cause was tried to a jury, which rendered a verdict in favor of the plaintiff. Judgment was rendered on this verdict, which was affirmed by the court of appeals, to which judgment error is prosecuted here.

Messrs. Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error.

Mr. Albert D. Alcorn and Mr. Robert L. Alcorn, for defendant in error.

JOHNSON, J. The assailants of this judgment assert the invalidity of Sections 9012, 9013 and 9014, General Code, for several reasons. Pertinent parts of those sections are as follows:

"Sec. 9012. No corporation directly or indirectly shall compel or require an employe to join any company or association whatsoever, or withhold any part of an employe's wages or his salary for the payment of dues or assessments in any society or organization, or demand or require either as a condition precedent to securing employment or being employed," etc.

Section 9013 in substance prohibits the making of any agreement by a railroad company with an employe by which he agrees to waive any right to damages thereafter arising for personal injury or death, or any other right, and Section 9014 provides that all rules, regulations, stipulations and agreements declared unlawful by the next three

Opinion, per JOHNSON, J.

preceding sections are void. A corporation, association or person violating, or aiding or abetting the violation of either of such sections, for each offense shall forfeit and pay to the person thus wronged or deprived of his rights not less than fifty nor more than five hundred dollars, to be recovered by a civil action.

Each of the causes of action set up by the plaintiff is predicated upon the allegation that the defendant illegally and against plaintiff's wishes deducted and withheld from his pay the sum of four dollars for the payment of dues in the relief depart

ment.

The question whether the plaintiff was required by the defendant to join the relief association, as a condition of employment, or did so voluntarily, is unimportant in this proceeding, except in so far as it is connected with the question whether the defendant deducted the amount from plaintiff's pay against his wishes. He joined more than one year before this suit was begun, and, therefore, any cause of action for penalty because of being compelled to join was barred at that time.

The defendant urges that this very relief department was held to be lawful in the case referred to in its answer, The State, ex rel., v. The Baltimore & Ohio Rd. Co., 88 Ohio St., 539. The judgment of the circuit court in that case was affirmed on the authority of P., C., C. & St. L. Ry. Co. v. Cox, 55 Ohio St., 497. In the case last referred to the facts of the case are stated in the syllabus as follows:

"An employe of a railroad company, voluntarily, and with full knowledge of the character and effect

Opinion, per JOHNSON, J.

of the contract he was assuming, applied for admission to an association composed of the company and a portion of its employes, called the 'Voluntary Relief Department,' and being admitted, contracted that the company might deduct from his wages the sum of seventy-five cents per month for the purpose of forming, with other like contributions by other employe members, and contributions, which by the contract the company was obliged to make, a relief fund for the benefit of the employes in case of sickness, accident or death; and contracted, further, that in case of accident, the acceptance by him thereafter of relief from the relief fund so accumulated should have the effect to release the company from liability for damages:

"Held, 1. Such contract is not interdicted by the act of April 2, 1890, 87 O. L., 149, 'for the protection and relief of railroad employes,' etc. 2. The contract is not contrary to public policy. 3. The contract does not lack mutuality. 4. It is based upon a valid consideration."

Afterwards a quo warranto proceeding was brought to oust the Pennsylvania Company from operating its relief department on the ground that the company was conducting an insurance business and that its contracts were against public policy. (The State, ex rel., v. The P., C., C. & St. L. Ry. Co., 68 Ohio St., 9.) The court sets out that the association maintained a fund which was created and accumulated by the voluntary contributions from their wages by employes who had applied for membership and that the fund was used for the beneficial purposes stated. The court held that

Opinion, per JOHNSON, J.

the acts of the company were within its implied powers and were not ultra vires nor contrary to public policy. Subsequently the legislature passed what is now Section 9010, General Code, which prohibits any railway company from establishing or maintaining a relief society which requires its employes to become members thereof, or to enter into an agreement, directly or indirectly, whereby they stipulate to surrender or waive a right of damages against the company for personal injuries or death, or surrender any other right.

It must be said, therefore, with reference to the contention that it has been adjudicated that this relief association is a lawful one- and, therefore, that a judgment to the contrary now would be ex post facto and in violation of the constitution, and that an act of the general assembly under which this particular relief association will become unlawful is retroactive that the extent to which the adjudications went was that where, as the law then was, the employe "voluntarily, and with full knowledge of the character and effect of the contract he was assuming," became a member of the voluntary association, the contract was valid.

Now, in this case the petition contains the express averment that the deduction was made from plaintiff's wages illegally and against the plaintiff's wishes.

The second defense of the answer makes the direct issue that defendant withheld the amount named from the salary of plaintiff at the request and by the authority of plaintiff, and denies all the other allegations of the petition. This was the