liability created has no reference to negligence25 or tort,26 and the compensation awarded is intended neither as a charity27 nor as a penalty.28 The trend of authority is toward regarding the obligation as contractual or quasi contractual,30 although it has been said that critically considered it is more properly placed in a class by itself.31 II. PURPOSE AND HISTORY OF LEGISLATION [5] The compensation acts, as was well said in one of the earlier opinions on the constitutional questions involved, form a legislative response to an emphatic, if not a peremptory, public demand that a system be afforded whereby employers and employed might escape from personal injury litiga tion, and every employee not guilty of willful mis- 28. In re Cripp, 216 Mass. 586, 104 NE 565, AnnCas1915B 828; Milwaukee v. Miller, 154 Wis. 652, 144 NW 188, LRA1916A 1. the employer of liability for anything | to be compensated for an injury has "This rule of liability, stated in another form, is that the employer is responsible to the employee for every accident in the course of the employment, whether the employer is at fault or not, and whether the employee is at fault or not, except when the fault of the employee is so grave as to constitute serious and willful misconduct on his part. The radical character of this legislation is at once revealed by contrasting it with the rule of the common law, under which the employer is liable for injuries to his employee only when the employer is guilty of some act or acts of negligence which caused the occurrence out of which the injuries arise, and then only when the employee is shown to be free from any negligence which contributes to the occurrence." Ives v. South Buffalo R. Co., 201 N. Y. 271, 285, 94 NE 431, 34 LRANS 162, Ann Cas1912B 156. 26. De Biasi v. Normandy Water Co., 228 Fed. 234; Berton v. Tietjen, etc., Dry Dock Co., 219 Fed. 763; Powers v. Hotel Bond Co., 89 Conn. 143, 145, 93 A 245; Post v. Burger, 216 N. Y. 544, 550, 111 NE 351, Ann Cas1916B 158. "The modern theory of the law of torts makes the fault of the employer a prerequisite to a recovery of damages by an injured workman. Workmen's Compensation Acts such as ours are founded upon the theory of a contract existing between workman and employer, an implied consideration of which is provision for compensation for injury to the workman arising in the course of his employment and not through his intentional or wilful misconduct. Fault is the foundation of the tort action: compensation for the injury regardless of the fault, of the Compensation Acts." Powers v. Hotel Bond Co., supra. "The act does not purport to provide compensation for a wrong. The compensation is given without reservation and wholly regardless of any question of wrong doing of any kind.' Post v. Burger, supra. 27. State V. Industrial Commn.. 92 Oh. St. 434, 452, 111 NE 299, LRA 1916D 944; Milwaukee v. Miller, 154 Wis. 652, 144 NW 188, LRA1916A 1. "Again, this law was passed not in a spirit of 'charity' but only simple justice. The fund it provides is called, and is in fact, an insurance' fund, from which payments are to be made, and is in no sense a pension fund, and never, so far as we are aware, has it been contended that injured employes and their dependents were not entitled to compensation as a matter of right. The right 29. De Biasi v. Normandy Water Co., 228 Fed. 234; Wood v. Camden Iron Works, 221 Fed. 1010; Berton v. Tietjen, etc., Dry Dock Co., 219 Fed. 763; Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 A 372, LRA 1916A 436; West Jersey Trust Co. v. Philadelphia, etc., R. Co., 88 N. J. L. 102, 95 A 753; Inter-state Tel., etc., Co. v. Public Service Electric Co., 86 N. J. L. 26, 90 A 1062; Post v. Burger, 216 N. Y. 544, 111 NE 351, AnnCas1916B 158. [a] Part of payment for services or wages.-"Whether the economists are right or not in their view of the final incidence of the cost of the statutory compensation, it is certain that the intent of the act was to secure compensation to workmen for the perils of their employment, the risk of which it had been previously thought they assumed as a part of the contract of employment, for which they were supposed rightly or wrongly to be compensated in their wages. In any event the right to the statutory compensation is a part of the compensation of the employe for services rendered, for which the employer receives a quid pro quo. If it were not so, the employer would cease to employ. The compensation is no more a loss to him than other wages paid for work done, and it is none the less compensation for labor done because the statute directs that its payment shall be distributed over a certain number of weeks in the future. It is one of the necessary expenses of the business against which the employer must protect himself by a higher price for his product or lower regular wages for his employes." Inter-state Tel., etc., Co. v. Public Service Electric Co., 86 N. J. L. 26, 28, 90 A 1062. 30. American Radiator Co. V. Rogge, 86 N. J. L. 436, 437, 92 A 85, 94 A 85. "The liability is indeed contractual in character by force of the very terms of the statute, but it is not the result of an express agreement between the parties; it is an agreement implied by the law, of a class now coming to be called in the more modern nomenclature of the books 'quasi contracts.' American Radiator Co. v. Rogge, supra. 31. Berton v. Tietjen, etc., Dry Dock Co., 219 Fed. 763. 32. Borgnis v. Falk Co., 147 Wis. 327, 133 NW 209, 37 LRANS 489. To same effect American Coal Co. v. Allegany County Comrs., 128 Md. 564, 98 A 143; Brenner v. Brenner, 127 Md. 189, 193, 96 A 287; In re Gould, 215 Mass. 480, 102 NE 693, AnnCas 1914D 372; Post v. Burger, 216 N. Y. 544, 111 NE 351, AnnCas1916B 158. "While the legislation of this character is of recent growth in this country the end sought to be accomplished is thoroughly well understood. The object and purpose of such legislation has been two-fold: first, in cases of injury to employees to provide a speedy and inexpensive method by which compensation might be made to them or those dependent upon them without the delay of long and tedious litigation, and at a minimum of costs; and secondly, to substitute a more uniform scale of compensation in cases of accident than could be obtained from the varying and often widely divergent estimates of juries, and also to avoid the application of certain well established rules of law, which in some cases have seemed to be harsh in their operation." Brenner V. Brenner, supra. "It is founded on the basic principle that certain defined industries, called in the act extra hazardous, should be made to bear the financial losses sustained by the workmen engaged therein through personal injuries, and its purpose is to furnish a remedy that will reach every injury sustained by a workman engaged in any of such industries, and make a sure and certain award therefor, bearing a just proportion to the loss sustained, regardless of the manner in which the injury was received." State v. Clausen, 65 Wash. 156, 175, 117 P 1101, 37 LRANS 466. [a] Reason for demand.-(1) "In this state the affirmative defenses of contributory negligence and assumption of risk, including in the latter the negligence of a fellow-servant, are still generally available to the employer. The result is that in many cases the maimed employee, and, in case of his death, his dependents, are obliged to bear the whole burden of misfortune. He or they may suffer the humiliation of becoming public charges, with the consequent additional expense to the taxpayer. The injury or death may have been the result of inevitable accident in the course of the employment, in which event the workman is the sole victim. Whatever may be the reason therefor, actions for damages for personal injury and death have increased enormously in number in the past few years. It is notorious that but a small proportion of the moneys forced from the employer in these cases finds its way into the pockets of the plaintiff. The remainder is frittered away in payment of counsel fees, witness fees, court costs, and other necessary expenses of litigation. The records of this court disclose that our best and most highminded lawyers have, as was their duty, advocated the cause of the plaintiff in many of these cases; nevertheless, the fact remains that the solicitor of personal injury cases is a hateful reality, and much unnecessary and ill-advised litigation results from his activities. These cases are prolific of perjury and subornation of false swearing. They also add a great weight to the burden of the taxpayer. Some plaintiffs have lost meritorious causes, and many defendants, especially public service corporations, have been mulcted in heavy damages in tions where the great preponderance of the evidence was in their favor. Jurors in some communities are, unconsciously perhaps, prejudiced against corporations, as such. In practical application. our present system does not afford the equal protection of the laws to certain defendants. It is impossible not to ac 33 his employer for personal injuries, are the outgrowth of the conditions surrounding the small shop and the use of simple or no machinery. Under modern industrial conditions requiring the coöperation of many employees and the extensive use of powerful and dangerous mechanical appliances, these principles, even as amended by the legislation known as the employers' liability acts,34 in many cases leave an injured employee remediless, since they predicate the employee's right to recovery entirely on the existence of actionable negligence, and in perhaps the majority of occupational injuries it is impossible directly to impute 35 36 fault either to the employer or to the employee. From this fact and from the further fact that the employee's right to recovery is often, in addition, restricted by the defenses of contributory negligence, assumed risk, and negligence of a fellow servant, the view has been more and more generally taken that too much of the burden of the economic loss entailed by the personal injuries necessarily accompanying modern industrial operations is imposed on the employee.37 The great object of the workmen's compensation acts is to shift the burden of such economic waste from the employee to the industry, in order that it may ultimately be borne recognize the fact that the defend- | 327, 133 NW 209, 37 LRANS 489. [b] Evils of personal injury litigation.-"The time of the courts is consumed in listening to the harrowing stories, sometimes of truth and sometimes of perjury. Claim agents are busy from the hours of death or injury in locating and preserving the testimony that the corporation may be protected. The friends and lawyers and agents of the dead and injured are equally industrious. We often see advertisements in the press of 'witnesses wanted to the occurrence.' We have new words in the dictionary, but the new words 'snitches' and 'ambulance chasers' are of the simple and well-known language. Verdicts must be for twice the fair amount to be awarded as damages, so as to allow the 'contingent fee' or the injured man, his widow, or children, must accept half the sum justly due. And these results are only obtained after years of litigation. Sickness, unavoidably out of town, urgent business in other courts, prolong the litigation. When judgment is at last obtained in favor of the one side or the other, appeals, certiorari, mandamus, and writs of error, one or all, are sought, and then sometimes reversals, and then other delays. Sometimes verdicts are returned, and later on it is ascertained that the testimony was to meet the law of the case. Sometimes the verdicts are returned for only part of the sum that should have been awarded, and sometimes the verdict is followed by getting well so speedily as to be termed almost miraculous. So that, regardless upon which side the greater wrongs occur, a question no one can decide, all ought to concede that which is the truth, that the best the courts can do in many cases is frailty itself" (per McPherson J.). Hawkins v. Bleakley, 220 Fed. 378, 379. 33. Borgnis v. Falk Co., 147 Wis. judgments of which half was opposing lawyers' booty, the workmen through the old defenses of exhaustion in wasteful litigation. Both wanted peace. The master, in exchange for limited liability, was willing to pay on some claims in future, where in the past there had been no liability at all. The servant was willing, not only to give up trial by jury, but to accept far less than he had often won in court; provided he was sure to get the small sum without having to fight for it. All agreed that the blood of the workman was the cost of production, that the industry should bear the charge." Stertz V. Industrial Ins. Commn., (Wash.) 158 P 256, 258. 36. Lewis, etc., County v. Industrial Acc. Bd., (Mont.) 155 P 268. 37. Cal.-Western Indemn. Co. v. Pillsbury, 170 Cal. 686, 151 P 398. Kan. McRoberts v. National Zinc Co., 93 Kan. 364, 144 P 247. Ky.-Kentucky State Journal Co. v. Workmen's Compensation Bd.. 161 Ky. 562, 170 SW 437, 1166, LRA1916A 389, AnnCas1916B 1273. Legislature in passing this act, they 34. Lewis, etc., County v. Industrial Acc. Bd., (Mont.) 155 P 268; Ives v. South Buffalo R. Co., 201 N. Y. 271, 94 NE 431, 34 LRANS 162, AnnCas1912B 156; Borgnis V. Falk Co., 147 Wis. 327, 133 NW 209, 37 LRANS 489. 35. Lewis, etc., County v. Industrial Acc. Bd., (Mont.) 155 P 268. N. Y.-Ives v. South Buffalo R. Co., 201 N. Y. 271, 94 NE 431, 34 LRANS 162, AnnCas1912B 156. V. R. I.-Sayles v. Foley, 96 A 340. Wis. Minneapolis, etc., R. Co. Industrial Commn., 153 Wis. 552, 141 NW 1119, AnnCas1914D 655; Borgnis v. Falk Co., 147 Wis. 327, 133 NW 209, 37 LRANS 489. and great economic waste, gives inadequate relief for loss and sufferdifferent individuals in like circumstances, and that, whether viewed from the standpoint of the employer or that of the employee, it is inequitable and unsuited to the conditions of modern industry." Western Indemn. Co. v. Pillsbury, 170 Cal. 686, 693, 151 P 398. "In the enactment of the compensation law the legislature recognized that the common-law remedies for injuries sustained in certain hazardous industries were inadequate, unscientific and unjust, and therefore a substitute was provided by which a more equitable adjustment of such loss could be made under a system which was intended largely to eliminate controversies and litigation and place the burden of accidental in upon the industries themselves, or rather upon the consumers of the products of such industries." McRoberts v. National Zinc Co., 93 Kan. 364, 366, 144 P 247. [a] "Experience demonstrated that more than one-half of all industrial injuries resulted from inevitable accident or from the risks of the busi-juries incident to such employments ness for which no one could be held responsible; that neither the common law nor employers' liability statutes furnished any measure of relief to more than 12 or 15 per cent. of the injured, and that further appreciable improvement from the modification of existing laws could not be expected so long as the element of negligence was the foundation of legal liability." Lewis, etc.. County v. Industrial Acc. Bd., (Mont.) 155 P 268, 270. [b] "Our act came of a great compromise between employers and employed. Both had suffered under the old system; the employers by heavy [a] "No movement in any age has made more for the elimination of waste and the economical application of personal injury cost of production and distribution of those things which are necessary for or administer to legitimate human desires, where it belongs, and to where it must inevitably go as a final resting place, than laws of which the one in question is a distinguished type.— a crystallization as has been said WORKMEN'S COMPENSATION ACTS by the consumer as a part of the necessary cost of production.38 Other important considerations leading to the enactment of the legislation are a desire to lessen the expense to the compensation state of numerous and prolonged litigations,39 to lessen the temptation to perjury in courts of justice,10 ,40 to protect the employer from unjust and excessive verdicts resulting from the hardships of particular cases, and to secure to the employee having a just claim the full amount of compensation awarded him without diminution by reason of the expense of litigation.12 41 Historical. While the principle had been earlier recognized as to particular industries, the first national compensation act was that of Germany in 1884. From that time the idea has spread until 43 [C. J.] 9 all of the European countries, with the exception of Turkey, have adopted it, as have Great Britain and many of her colonies, including the Canadian provinces, the first act in Great Britain being that of August 6, 1897, which was followed by that of July 1, 1900, and is now replaced by that of December 21, 1906, in effect July 1, 1907. United States in 1908 the theory of compensation In the legislation was adopted as to certain classes of government employees by a federal enactment.* 44 was followed by the Montana Coal Miners' Act of This 1909.45 Since that time laws have been enacted in more than one half of the states and for Alaska, Hawaii, and Porto Rico,46 while the operation of the federal act has been extended to all civil employees of the United States.*7 before, into legal obligation of moral | legislature might have employed that V. 38. Cal.-Western Indemn. Co. v. Pillsbury, 170 Cal. 686, 151 P 398. Mass.-In re Madden, 222 Mass. 487, 111 NE 379, LRA1916D 1000; Young v. Duncan, 218 Mass. 346, 106 NE 1. Mont.-Lewis, etc., County v. Industrial Acc. Bd., 155 P 268. N. Y.-Moore v. Lehigh Valley R. Co., 169 App. Div. 177, 154 NYS 620; Rheinwald v. Builders' Brick, etc., Co., 168 App. Div. 425, 153 NYS 598; Kenny v. Ünion R. Co., 166 App. Div. 497, 152 NYS 117; Martucci v. Hills Bros. Co., 156 NYS 833. Oh.-State v. Industrial Commn., 92 Oh. St. 434, 111 NE 299, LRA1916D 944. R. I.-Jillson v. Ross, 94 A 717. Wash.-State v. Clausen, 65 Wash. 156, 117 P 1101, 37 LRANS 466. Wis.-Besnys v. Herman Zohrlaut Leather Co., 157 Wis. 203, 147 NW 37; Milwaukee v. 652, 144 NW 188, LRA1916A 1. Miller, 154 Wis. "The theory upon which the compensation law is based (which is now generally accepted) is that each time an employe is killed or injured there is an economic loss which must be made up or compensated in way, that most accidents are attribsome utable to the inherent risk of employment-that is, no one is directly at fault-that the burden of this economic loss should be borne by the industry rather than by society as a whole, that a fund should be provided by the industry from which a fixed sum should be set apart as every accident occurs to compensate the person injured, or his dependents, for his or their loss." State v. Industrial Commn., 92 Oh. St. 434, 450, 111 NE 299, LRA1916D 944. "Workingmen's insurance and compensation laws are the products of the development of the social and economic idea that the industry which has always borne the burden of depreciation and destruction of the necessary machinery shall also bear the burden of repairing the efficiency of the human machines without which the industry itself could not exist." Lewis, etc., County v. Industrial Acc. Bd., (Mont.) 155 P 268, 270. would make its purpose and intent V. V. to other European states, and finally 44. Act May 30, 1908 (35 U. S. "The conclusion is evident that, in the enactment of this new law, the legislature declared it to be the policy of this state that every hazard-pairment of earning efficiency spread ous industry within the purview of the act should bear the burden arising out of injuries ployees; and that it was the further to its empolicy of the state to do away with the recognized evils attaching to the remedies under existing forms of law and to substitute a new remedy that should be ample, full, and complete, reaching every injury sustained by any workman while employed in any such industry, regardless cause of the injury or the negligence of the to which it might be attributed. can conceive of We no language the 45. L. (1909) c 67 p 81. L. [1911] c 399). Canal Zone.-Executive Order, Colo.-L. (1915) c 179 p 515. (1913) C 138, Acts (1915) с Hawaii.-Act No. 221, April 28, 288. 1915. by L. (1915) p 400 (repealing L. Ind. L. (1913) c Iowa.-Acts (1913) c 147. amended by L. (1913) c 216 p 385. Kan.-L. (1911) с 218 p 382, Ky.-L. (1916) c 33. La.-Acts (1914) p 44, amended by No. 10 p 20, amended by Pub. Acts Mont.-L. (1915) c 96. Nebr.-L. (1913) c 198 p 578. Nev.-St. (1911) c 183 p 362; St. (1913) c 111 p 137, amended by St. (1915) c 190. N. H.-L. (1911) c 163 p 181. N. J.-L. (1911) c 95 p. 134, L. (1913) c 145 p 230, amended by L. (1913) c 174; L. (1914) c 244. N. Y.-L. (1914) p 757 (L. [1913] c 816, reënacted and amended by L. [1914] c 41, Consol. L. c 67), amended by L. (1915) cc 615, 674, L. (1916) by L. (1910) c 352, L. (1915) c 674. c 622; L. (1909) c 36 art 14, amended Oh.-L. (1911) p 524; L. (1913) pp 72, 396; L. (1914) p 193. Okl.-L. (1915) c 246 p 471. 19. R. I.-Acts (1912) c 831 p 204, 275. Wis.-L. (1911) c 50 p 43, amended Wyo.-L. (1915) c 124 p 172. 47. Act Sept. 7, 1916 (39 U. S. St. at L. 742). III. CONSTITUTIONALITY AND VALIDITY OF STATUTES [6] A. In General. As perhaps fairly to be anticipated from the novel, and in a sense revolutionary, character of compensation legislation, the constitutionality of the various statutes has been attacked on grounds as numerous and varied as have suggested themselves to the ability, and in some instances ingenuity, of counsel.48 While the courts have frequently laid stress on the distinction between elective and compulsory statutes, and in 49 Ill. Victor Chemical passing on elective statutes have intimated that an elective statute would be sustained when a compulsory one might not be,50 they have, where the question has been directly presented, almost without exception sustained both elective and compulsory52 acts. Where a compensation act is reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the other valid, that construction will be adopted which will favor 48. See Hunter v. Colfax Cons. | ering New Jersey law, Acts [1911] for the benefit of other people, is a Coal Co., (Iowa) 154 NW 1037, 1048 e 95). violation of the above Section 241 (where the court said: "It is the 51. U. S.-Hawkins v. Bleakley, of the Constitution. The Legislatendency of argument asserting that 220 Fed. 378 (Iowa act). ture has no right to limit the damlegislation is violative of ConstituWorks V. ages recovered, for the death of an tions to be hypercritical, and the one State Industrial Bd., 274 Ill. 11, 113 employe negligently killed, to his at bar is not exceptional in this NE 173; Devine v. Delano, 272 Ill. dependents. Nor do we think the regard"); Evanhoff v. State Indus- 166, 111 NE 742; Richardson v. Sears, Legislature has the right to take trial Acc. Commn., 78 Or. 503, 512, 271 II. 325, 111 NE 85; Przykopenski what is due the estate of one man 154 P 106 (where the court said: v. Citizens' Coal Min. Co., 270_111. and give it to another. While the "The complaint and the able and 275, 110 NE 336; Dragovich v. Iro- Legislature may say how the recovingenious brief of counsel for plain-quois Iron Co., 269 Ill. 478, 109 NE ery may go and to whom it shall betiff point out 19 specific violations of 999; Dietz v. Big Muddy Coal, etc., long, it cannot say this recovery may the Constitution of this state, all Co., 263 Ill. 480, 105 NE 289; Crooks be had from the employer, then in committed within the compass of a v. Tazewell Coal Co., 263 Ill. 343, 105 the next breath give it to this fund. single act, and then, piling Pelion on NE 132, AnnCas1915C 304; Deibeikis It then necessarily follows that such Ossa, specifies four alleged violations v. Link-Belt Co., 261 Ill. 454, 104 NE parts of this act_under consideration of the Constitution of the United 211, AnnCas1915A 241 and note. as give to this Board of CompensaStates, perpetrated by means of the Iowa.-Hunter v. Colfax Cons. Coal tion, without the voluntary contract same statute. It would be, indeed, Co., 154 NW 1037. of the employe the right to recover a reflection upon republican governfrom the employer for the death of ment if a bill which is so permeated the employe leaving no dependents, with the rottenness of unconstituand such other parts of the act as tionality could pass both houses of coerce the employe to consent or to the legislature with only three dismake a contract that such compensenting votes, and thereafter be insation shall be paid into this comdorsed by the people upon a referenpensation fund, are unauthorized and dum by a majority of more than two void"). (2) The act of 1916, L. (1916) to one"); Middleton v. Texas Power, c 33, has been upheld, however, as etc., Co., (Tex.) 185 SW 556, 557 against the objections urged against (where the court said: "Apparently the prior act. Greene v. Caldwell, every possible constitutional ques170 Ky. 571, 186 SW 648. tion suggested by the act has been embraced in the certificate, including some which the appellant was in no position to raise"). 49. Mass. In re Opinion of Justices, 209 Mass. 607, 96 NE 308. Mich.-Mackin V. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49. Minn.-Mathison v. Minneapolis St. R. Co., 126 Minn. 286, 148 NW 71, LRA1916D 412. N. J.-Troth V. Millville Bottle Works, 86 N. J. L. 558, 91 A 1031. Or. Evanhoff v. State Industrial Acc. Commn., 78 Or. 503, 154 P 106. R. I. Sayles v. Foley, 96 A 340. Tex.-Middleton v. Texas Power, etc., Co., 185 SW 556. W. Va.-Watts V. Ohio Valley Electric R. Co., 88 SE 659. Kan.-Shade v. Ash Grove Lime, etc., Co., 93 Kan. 257, 144 P 249. Mass.-Young v. Duncan, 218 Mass. Mich.-Mackin V. Detroit-Timkin Mont.-Lewis, etc., County v. State N. H.-Wheeler v. Contoocook Mills N. J.-Sexton v. Newark Dist. Tel. Oh-Jeffrey Mfg. Co. v. Blagg, 90 Or. Evanhoff v. State Industrial W. Va.-Watts V. Ohio Valley Wis.-Borgnis v. Falk Co., 147 Wis. 327, 133 NW 209, 37 LRANS 489. [a] In Kentucky (1) an act (L. [1914] c 73) although elective in terms, was construed as in fact compulsory as to both employer and employee (see supra § 2 notes 17, 18) and as such in violation of Const. § 54 providing that the general assembly shall have no power to limit the amount to be recovered in case of injuries resulting in death, or for injuries to person or property, and § 241 providing that in case of death from negligence or wrongful act damages may be recovered, the action for which, until otherwise provided by law, shall be prosecuted by the personal representatives of the deceased person, and the recovery for which shall form part of the personal estate of the deceased perHe son. State Journal Co. v. Work See Western Indemn. Co. v. Pillsbury, 170 Cal. 686, 695, 151 P 398 (where the court said: "While, in several of these decisions, the court was careful to point out that the validity of a compulsory compensation act was not involved, yet the general line of reasoning employed in most of the cases would, if pursued to its logical results, go far toward sustaining even such an act"); Kentucky State Journal Co. v. Workmen's Compensation Bd., 162 Ky. 387, 388, 172 SW 674, LRA1916A 402 and note (where the court, on rehearing, said of L. [1914] c 73 which it held unconstitutional in its entirety: "Any employe coming within the provisions of the act may voluntarily agree to accept, its provisions fixing and limiting his recovery in case of injury. may likewise voluntarily accept the provisions of the act fixing the amount that shall be recovered in the event of his death, and said sum should be paid to his dependents if he leaves any, and if not, to his personal representatives. The Legislature has no power to direct that this sum shall in any event be paid into the compensation fund"). Elective and compulsory acts distinguished see supra § 2. 50. Mathison v. Minneapolis St. R. Co., 126 Minn. 286, 148 NW 71. LRA1916D 412; Albanese v. Stewart, 78 Misc. 581, 138 NYS 942 (consid men's Compensation Bd., 161 Ky. 562, [b] The leading cases on constitutional questions in the several jurisdictions are Deibeikis v. LinkBelt Co., 261 Ill. 454, 104 NE 211, AnnCas1915A 241; Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037 (L. 1913 Thirty-Fifth Gen. Assembly c 147); In re Opinion of Justices, 209 Mass. 607, 96 NE 308; Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49; Mathison v. Minneapolis St. R. Co., 126 Minn. 286, 148 NW 71, LRA1916D 412; Sexton v. Newark Dist. Tel. Co., 84 N. J. L. 85, 86 A 451 [aff 86 N. J. L. 701, 91 A 1070]; State v. Creamer, 85 Oh. St. 349, 97 NE 602, 39 LRANS 694; Evanhoff v. State Industrial Acc. Commn., 78 Or. 503, 154 P 106; Sayles v. Foley, (R. I.) 96 A 340; Middleton v. Texas Power, etc., Co., (Tex.) 185 SW 556; Borgnis v. Falk Co., 147 Wis. 327, 133 NW 209, 37 LRANS 489. 52. U. S.-Raymond v. Chicago, etc., R. Co., 233 Fed. 239 (Washington act); Stoll v. Pacific Coast SS. Co., 205 Fed. 169 (Washington act). Cal.-Massachusetts Bonding, etc., Co. v. Pillsbury, 170 Cal. 767, 151 P 419; Western Indemn. Co. v. Pillsbury, 170 Cal. 686, 151 P 398. N. Y.-Jensen v. Southern Pac. Co., 215 N. Y. 514, 109 NE 600, LRA1916A 403, AnnCas1916B 276; Moore V. Lehigh Valley R. Co., 169 App. Div. 177, 154 NYS 620. Oh.-Porter v. Hopkins, 91 Oh. St. 74. 109 NE 629 (where, however, only the question of discrimination in 103 Oh. L. 72 between the state and its subdivisions and private employers was considered). Wash.-Peet v. Mills, 76 Wash. 437, 136 P 685, LRA1916A 358, AnnCas 1915D 154; State v. Mountain Timber Co., 75 Wash. 581, 135 P 645; State v. Seattle, 73 Wash. 396, 132 P 45; State v. Clausen, 65 Wash. 156, 117 P 1101, 37 LRANS 466 and note. [a] The leading cases on constitutional questions in the several jurisdictions are Western Indemn. Co. v. Pillsbury, 170 Cal. 686, 151 P 398; Jensen v. Southern Pac. Co., 215 N. Y. 514, 109 NE 600, LRA1916A 403, AnnCas1916B 276; Ives v. South Buffalo R. Co., 201 N. Y. 271, 94 NE 431, 34 LRANS 162 and note, AnnCas WORKMEN'S COMPENSATION ACTS its validity,53 and, although counsel place an erroneous construction on the statute, the court should not for that reason hold it unconstitutional if the act properly construed is constitutional.54 55 Enabling amendments. Objections to the constitutionality of compensation acts so far as the state constitutions are concerned have been forestalled in several of the states by constitutional amendments permitting the enactment of such legislation, although this course obviously cannot remove objections based on the federal constitution.56 amendments, being intended to enlarge the power Such of the legislature or to remove doubts concerning its power to legislate on a given subject, are not to be given too strict and literal an interpretation.57 For example, an authorization to create a liability 57. 1912B 156 and note (holding original [b] In Maryland the act of 1910 c 153, as amended by Acts (1912) c 445, for the creation of a fund known as the "Miners' and Operators' Cooperative Relief Fund," for the relief and sustenance of employees injured in coal and clay mining in Allegany and Garrett counties, and of the dependents of employees injured or killed in such mining, has been sustained as a valid exercise of the police power of the state V. 53. Carstens v. Pillsbury, (Cal.) 158 P 218; Victor Chemical Works v. State Industrial Bd., 274 Ill. 11, 113 NE 173; Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037. V. 54. Grand Rapids Lumber Co. v. Blair, (Mich.) 157 NW 29. 55. See constitutional provisions; and Western Metal Supply Co. Pillsbury, (Cal.) 156 P 491; Western Indemn. Co. v. Pillsbury, 170 Cal. 686, 151 P 398; Jensen v. Southern Pac. Co., 215 N. Y. 514, 523, 109 NE 600, LRA1916A 403, AnnCas1916B (where L. [1914] c 41 was sustained 276 and the court, in speaking of the contrary decision on L. [1910] c 674, said: "Much reliance is placed on the decision of this court in Ives v. South Buffalo R. Co., 201 N. Y. 271, 94 NE 431, 34 LRANS 162, AnnCas 1912B 156. In that case Judge Werner, referring to the appeal on economic and sociologic grounds and speaking for the court, said: have already admitted the strength 'We of this appeal to a recognized and widely prevalent sentiment, but we think it is an appeal which must be made to the people and not to the courts.' That decision was made in March, 1911. Following that suggestion, the legislature provided in the orderly way prescribed by the Constitution for the submission to the people of a proposed constitutional amendment and in due time that amendment was adopted on November 4th, 1913, and became tion 19 of article 1 Constitution. of our It is unnecessary set that amendment forth in tenso, but it suffices to say that so far as the due process clause or any other provision of our State Constitution is concerned the amendment amply sustains the act"); McQueeney v. Sutphen, 167 App. Div. 528, 153 NYS 554; Herkey v. Agar Mfg. Co., 90 Misc. 457, 153 NYS 369; Porter v. Hopkins, 91 Oh. St. 74, 109 NE 629. [a] For example, this course has been pursued in California, York, Ohio, Oklahoma, Pennsylvania, New Vermont, and Wyoming. sec State to ex 56. Herkey v. Agar Mfg. Co., 90 Misc. 457. 153 NYS 369. [C. J.] 11 Presentation of constitutional questions. Owing to the importance of securing an early decision as to the validity of a compensation act as a whole, the court may pass on all objections urged to it, although not essential to the disposition of the cause. There are several cases, however, in which the courts have refused to consider specific objections in advance of necessity therefor.61 60 on Western Metal Supply Co. v. [a] Limitation to employers.- bury, 170 Cal. 686, 701, 151 P 398. "It is first claimed that no excep- strained amendment. A dis the word 'all,' it is claimed, takes away the power of the legislature to except any employer from the operation of the act. a part of all. granted is to create a liability on the The only power But this, we think, is construction of the right of the legislature to pass laws Section 21 was adopted for the purpose of establishing the grant of power, and the word 'all' on the particular subject. It was a was inserted in order to make the power broad and Western Indemn. Co. v. Pillsbury, comprehensive." supra. 60. Hunter v. Colfax Cons. Coal NW 209, 37 LRANS 489. Co., (Iowa) 154 NW 1037; Borgnis v. Falk Co., 147 Wis. 327, 337, 133 sums sur re [a] Reason for decision.-"A conaccepted the terms of the act, but siderable number of employers have unquestionably many until the question of the constituare waiting tionality of the act be authoritatively settled by this court. Nor is this atprising. titude either blameworthy or accept the act and proceeds to pay If an employer elects to out the sums which it requires for a year or more, and then the act should be declared unconstitutional, it might well be that he would have paid out considerable under the former system he would which not be required to pay at all, because he was not negligent, and that he would also be subject to suits to recover additional had who, without contributory negligence, sums by those suffered injury and had ceived compensation under the law. The situation is unquestionably one of much doubt and among the great industries of the uncertainty state, and it must remain such until this court has spoken. ployers of labor who have not acMany emcepted the law definitely to decline the terms of the have course, not because they have chosen taken that law, but because they do not know whether they will be protected if they accept and act under it. a condition of uncertainty ought not Such to be allowed to exist if it can be removed. This court cannot properly decide questions which are not legitimately involved lawsuits, but it may properly decide in bona fide all questions which are so involved, even though it be essential not absolutely to the result should be decided." Borgnis v. Falk that all Co., 147 Wis. 327, 337, 133 NW 209, 37 LRANS 489. V. Western 61. Cal.-Great Co. v. Pillsbury, 170 Cal. 180, 149 P Power 35 (compensation provisions of the Boynton Act [St. (1913) p 279] in a claim governed by Act [St. (1911) p 796]). the Roseberry Iowa.-Hunter Coal Co., 154 NW 1037 (impairment Colfax Cons. of an existing contract). 571, Ky.-Greene v. Caldwell, 170 Ky. against aliens and against Americans 186 SW 648 (discrimination in favor of foreign labor). N. Y.-Ives v. Co., 201 N. Y. 271, 94 NE 431, 34 South Buffalo R. |