feature25 have been sustained; while on the other hand a compulsory compensation26 act has been held invalid.27 is plain, and instances are ample where his failing so to protect them must make him liable at common law. Having pronounced constitutional, then, an act which compels both employers and employed to go into a scheme of insurance, we do not hesitate to say that the difference in new or added liability by the act of a stranger on the premises is not enough to make it unconstitutional. It is but a slight extension of the common-law assurance of a safe place to work. Neither would it be a violation of the due process guaranty to make the master an insurer of the workman at the shop." Stertz V. State Industrial Ins. Commn., (Wash.) 158 P 256, 260. 25. Western Indemn. Co. v. Pillsbury, 170 Cal. 686, 707, 151 P 398 (In this case the validity of the Boynton Act [St. (1913) p 279] was sustained; this act superseded the Roseberry Act [St. (1911) p 796], the essential difference between the two acts being that the compensation provisions of the later statute are compulsory on all employers and employees coming within its terms, while the earlier statute gave to both employers and employees a right of election in this regard. The court was divided; three judges voted to sustain the act as against the principal objection that it imposed liability upon the employer without fault; three judges voted to sustain the act for the reason that, although the imposition of liability without fault would render the act invalid if it is meant that "the whole burden may lawfully be cast upon innocent employers whose employees are injured, without affording them any means of dividing the burden with more fortunate employers engaged in the industries whose employees have not carelessly hurt themselves," the act allowed the employer to relieve himself from liability "by paying a relatively small sum as insurance"; and the seventh judge dissented, holding that the act could not be referred to the police power, was unreasonable, discriminatory, in excess of the power conferred by the state constitution, and in violation of the fourteenth amendment to the federal constitution); Jensen Southern Pac. Co., 215 N. Y. 514, 524, 109 NE 600, LRA1916A 403 and note, AnnCas 1916B 276 (In this case the court distinguished L. [1914] c 41, which it upheld from L. [1910] c 674, which was held invalid in Ives v. South Buffalo R. Co., 201 N. Y. 271, 94 NE 431, 34 LRANS 162, AnnCas1912B 156, as follows: "The two acts are essentially and fundamentally different. That involved in the Ives Case made the employer liable in a suit for damages though without even imputable fault and regardless of the fault of the injured employee V. short of serious and willful misconduct. This act protects both employer and employee, the former from wasteful suits and extravagant verdicts, the latter from the expense, uncertainties and delays of litigation in all cases and from the certainty of defeat if unable to establish a case of actionable negligence. Both acts are said to have been based on the proposition that the risk of accidental injuries in a hazardous employment should be borne by the business and that loss should not fall on the injured employee and his dependents, who are unable to bear it or to protect themselves against it. That act made no attempt to distribute the burden, but subjected the employer to a suit for damages. This act does in fact as well as in theory distribute the burden equitably over the industries affected. It allows compensation only for loss of earning power, but by the creation of a state insurance fund, or by the substitute methods provided, [10] 2. Imposition of Liability without Fault. A strong if not a controlling reason for holding a compulsory compensation act void was found by can 1916B 276. We 26. Compensation and insurance acts distinguished see supra § 2. it insures the prompt receipt by the [b] Taking to a large extent theo- cor [a] Deprivation of remedy.-"It quired to give up the doubtful privi- 27. Ives v. South Buffalo R. Co., 201 N. Y. 271, 94 NE 431, 34 LRANS 162 and note, AnnCas1912B 156 and note. [a] Reason for rule."When our Constitutions were adopted it was the law of the land that no man who was without fault or negligence could be held liable in damages for injuries sustained by another. That is still the law, except as to the employers enumerated in the new statute, and as to them it provides that they shall be liable to their employees for personal injury by accident to any workman arising out of and in the course of the employment which is caused in whole or in part, or is contributed to, by a necessary risk or dånger of the employment or one inherent in the nature thereof, except that there shall be no liability in any case where the injury is caused in whole or in part by the serious and willful misconduct of the injured workman. It is conceded that this is a liability unknown to the common law and we think it plainly constitutes a deprivation of liberty and property under the Federal and State Constitutions, unless its imposition can be justified under the police power which will be discussed under a separate head. In arriving at this conclusion we do not overlook the cogent economic and sociological arguments which are urged in support of the statute. There can be no doubt as to the theory of this law. It is based upon the proposition that the inherent risks of an employment should in justice be placed upon the shoulders of the employer, who can protect himself against loss by insurance and by such an addition to the price of his wares as to cast the burden ultimately upon the consumer; that indemnity to an injured employee should be as much a charge upon the business as the cost of replacing or repairing disabled or defective machinery, appliances or tools; that, under our present system, the loss falls immediately upon the employee who is almost invariably unable to bear it, and ultimately upon the community which is taxed for the support of the indigent; and that our present system is uncertain, unscientific and wasteful, and fosters a spirit of antagonism between employer and employee which it is to the interests of the state to remove. We have already admitted the New York court in the view that it imposed liability on the employer for an injury not due to his The the strength 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. right of property rests not upon philosophical or scientific speculations nor upon the commendable impulses of benevolence or charity, nor yet upon the dictates of natural justice. The right has its foundation in the fundamental law. That can be changed by the people, but not by legislatures. In a government like ours theories of public good or necessity are often so plausible or sound as to command popular approval, but courts are not permitted to forget that the law is the only chart by which the ship of state is to be guided." "The argument that the risk to an employee should be borne by the employer because it is inherent in the employment, may be economically sound, but it is at war with the legal principle that no employer can be compelled to assume a risk which is inseparable from the work of the employee, and which may exist in spite of a degree of care by the employer far greater than may be exacted by the most drastic law." Ives v. South Buffalo R. Co., 201 N. Y. 271, 293, 296, 94 NE 431, 34 LRANS 162, AnnCas1912B 156. 156. [b] Rejection of rule-"We have not referred to the decision of the court of appeals of the state of New York in the case of Ives v. South Buffalo R. Co., 201 N. Y. 271, 94 NE 431, 34 LRANS 162, AnnCas1912B The act the court there had in review is dissimilar in many respects to the act before us, and is perhaps less easily defended on economic grounds. The principle embodied in the statutes is, however, the same; and it must be conceded that the case is direct authority against the position we have here taken. We shall offer no criticism of the opinion. We will only say that, notwithstanding the decision comes from the highest court of the first state of the Union, and is supported by a most persuasive argument, we have not been able to yield our consent to the views there taken." State v. Clausen, 65 Wash. 156, 211, 117 P 1101, 37 LRANS 466. [c] Limitation of decision.-"With the public policy of New York now so definitely aligned on the side of compensation legislation, it at least seems reasonable to regard the decision in Ives v. South Buffalo R. Co., 201 N. Y. 271. 94 NE 431, 34 LRANS 162, AnnCas1912B 156, as hereafter applicable only to the precise matter before the court in that case, viz., a statute imposing liability on the employer without his consent and without his fault.' Wasilewski V. Warner Sugar Refining Co., 87 Misc. 156, 160, 149 NYS 1035. 28. Ives v. South Buffalo R. Co., 201 N. Y. 271, 315, 94 NE 431, 34 LRANS 162 and note, AnnCas1912B 156 (where the court said: "We have tried to make it clear that in our judgment this statute is not a law of regulation. It contains not a single provision which can be said to make for the safety, health or morals of the employees therein specified, nor to impose upon the enumerated employers any duty or obligation designed to have that effect. It does not affect the status of employment at all, but writes into the contract between the ployer and employee, without the consent of the former, a liability on his part which never existed before and to which he is permitted to interpose practically no defense. for he can only escape liability when the employee is injured through his own willful misconduct. That is a defense which needs no legislative sanction, since it would be abhorrent to the most primitive notions em fault; 28 but this decision appears contrary to the trend of the subsequent authorities." The elective of justice to permit one to impose | duty committed by the employer, it liability for his willfully self-in- would have been void. Such a law flicted injuries upon another who is would have amounted to a legislawholly free from responsibility for ture forfeiture of property rights. them"). regardless of the holding of any court upon the question"). 29. Cunningham v. Northwestern Impr. Co., 44 Mont. 180, 119 P 554 (holding that L. [1909] c 67, providing for indemnity and benefits to injured persons engaged in coal mining, to be paid from a fund collected from an assessment levied on both employer and employee is not unconstitutional, because it does not differentiate between a careful and a careless employer); State v. Clausen, 65 Wash. 156, 176, 117 P 1101, 37 LRANS 466 (where the court said of the Washington Compulsory Insurance Act: "The argument [against the act] is based on two fundamental ideas: The one, that the act creates a liability without fault; and the other, that it takes the property of one employer to pay the obligations of another. It must be conceded that these contentions have a basis in fact, and that they, on first impression, constitute a persuasive argument against the validity of the act. Since there is exacted from every employer of labor engaged in one or more of the industries termed hazardous a certain fixed sum based upon his pay roll, which is to be used to compensate employees working in such hazardous employments who receive personal injuries, regardless of the question whether the injury was because of the fault of the employer or of the negligence of the employee, it can be said that some part of the sum so collected will be paid out on injuries in which the employer is without fault; and, furthermore, since every such employer is liable to make the payments whether or not any of his own workmen are injured, and since an employer is liable under the common law for an injury to his own workmen only, it can also be said that by this act one employer is held liable for the obligations of another"). Compare Western Indemn. Co. v. Pillsbury, 170 Cal. 686, 151 P 398 (where while three of the seven judges upheld the right to impose liability without fault by a provision for direct compensation, three others voted to sustain the act because of its insurance features, and a seventh judge dissented); Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1046 (where the court said, in considering elective act: "We have no occasion to decide, and therefore express no opinion on, whether making the master liable absolutely is within the power of the Legislature. All we do is to point out that, in the light of the cases to which we have referred, it was, at the time when the Iowa Legislature acted, at least a matter for a reasonable difference of opinion whether holding the employer to respond when wholly free from blame is a valid exercise of legislative power"). But see Middleton V. Texas Power, etc., Co., (Tex.) 185 SW 556, 559 (where the court said of an elective insurance act: "A legislature may in proper instances prescribe duties and penalize their breach through an authorization for the recovery of consequent damages. But it is wholly without any power to deny the citizen the right of making any defense when sued in the courts. There is no such thing in this country as taking one man's property without his consent and giving it to another by legislative edict. That is nothing less than confiscation by legislative decree. If this Act, therefore, had declared an employer not consenting to its provisions absolutely liable in damages at the suit of an employee for any injuries sustained by the latter in the employment, without reference to any wrong or breach of an V. [a] Criticism of Ives case.-"The essence of the decision in Ives South Buffalo R. Co., 201 N. Y. 271, 94 NE 431, 34 LRANS 162, AnnCas1912B 156 is that freedom from liability on the part of an employer who has been guilty of no fault is a fundamental property right of which he cannot be deprived by mere legislative declaration. With all possible respect for the eminently learned court which pronounced this decision, we are unable to give our assent to the doctrine. The line is sharply drawn, however, by the New York court of appeals, between the fellow-servant and contributory negligence rules, on the one hand, and the rule that fault on the part of the employer must be shown, on the other. Why this distinction? Is the latter doctrine any more sacred or inherently necessary than either of the former? Under the common law the burden of industrial accident, where no fault was attributable to employer or workman, fell on the workman. Under the new law it falls, primarily at least, on the employer. It cannot be said that the one rule or the other is a necessary or logical result of fundamental principles of justice. The very trend of legislation exemplified by the act before us illustrates how general is the belief that an enlightened conception of justice requires that the old rule be superseded by the new. There is nothing contrary to the permanent and underlying notions of human right in the declaration that he who is conducting an enterprise, in the operation of which injury to others is likely to occur, shall respond for such injury to those who have not, by their own willful misconduct, brought it upon themselves. "The position in the line of causation which employers sustain in modern industrial pursuits is of course the basic fact on which employer's liability laws rest.' (State v. Creamer, 85 Oh. St. 349, 97 NE 602, 39 LRANS 694.) Such a change in the law itself, as a rule of conduct' is as fairly within the scope of legislative power as is the abolition of the defense of fellow-servant or that of contributory negligence. If the lawmaking body deems such change to be needed for the furtherance of the general well-being, it is taking a view that may at least be entertained by reasonable minds, and its action is justified by the broad authority embraced within the police power" (per Sloss, J.). Western Indemn. Co. v. Pillsbury, 170 Cal. 686, 696, 151 P 398. [b] Precedents for the imposition of liability without fault may be found in the law of deodands; the personification of the ship in admiralty; the liability of the husband for the torts of the wife; the liability of a master for the acts of his servants; the federal tax on vessels for the marine hospital service; taxes on fire insurance agents for benefit of a fund for sick and injured firemen; statutes imposing liability on a carrier for injuries sustained by a passenger, imposing liability on a landlord for damages from intoxication caused by sale of liquor by his lessee, and imposing liability on railroads for fires by engines; and a depositors' guaranty law, "which authorizes the assessment and collection of a certain per centum on the daily average deposit of each and every bank organized under the laws of the state as a fund to pay the losses caused depositors by failing and insolvent banks." State v. Clausen, 65 Wash. set 30 acts have never been held invalid on this account, even though construed to impose liability, where a diseased bodily condition is accelerated to the point where it constitutes a personal injury by reason of the strain or exertion of the employment.31 [11] 3. Change in Remedies and Rules of Evidence. Notwithstanding the changes in fundamental doctrines, as to the liability of the employer 156, 183, 117 P 1101, 37 LRANS 466. 30, Wheeler v. Contoocook Mills Corp., 77 N. H. 551, 94 A 265; Herkey v. Agar Mfg. Co., 90 Misc. 457, 153 NYS 369; State v. Creamer, 85 Oh. St. 349, 97 NE 602, 39 LRANS 694; Middleton v. Texas Power, etc., Co., (Tex.) 185 SW 556. 31. In re Madden, 222 Mass. 487, 497, 111 NE 379, LRA1916D 1000 (when the court said of a contention that the employer was thereby compelled to part with property for causes for which he was nowise responsible: "In its essence that is an attack upon the act as a whole, for in none of its ordinary aspects does the payment required by the act depend upon fault, and it may be required in many cases where the employer was wholly free from fault. The workmen's compensation act is elective and not compulsory. It is wholly optional with the employer, as it is with the employee, whether he comes under the provisions of the act or stays outside and stands on his legal rights. The connection between the employment and the injury in the case at bar is the same in kind as in the manifold other instances where the personal injury to the employee is caused by a definite physical blow wholly without fault of the employer"). 32. Hunter v. Colfax Cons. Coal Co., (Iowa) 157 NW 145; Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49; Jensen v. Southern Pac. Co., 215 N. Y. 514, 109 NE 600, LRA 1916A 403, AnnCas1916B 276; Middleton V. Texas Power, etc., Co., (Tex.) 185 SW 556. [a] Discussion of rule.-(1) "In denying the employee of a subscribing employer, or his beneficiaries, any cause of action for accidental injuries, this Act simply changes the common law rule of liability upon the subject. It in effect declares that such employers shall no longer be liable as under that rule, but shall be liable according to the rule prescribed by the Act. If the Legisiature in the performance of its function of declaring what the law shall be, is authorized to change and repeal the rules of the common law upon other subjects, as is undoubted and has been done in numerous and notable instances, wherein is its power to change this common law rule to be denied? If it may entirely abrogate the common law rule of contributory negligence, thus relieving the employee of all consequence of his negligence, and transferring it, in effect, to the employer, what is there, as a matter of purely legislative authority, to prevent its relieving the employer of the consequence of his negligence and, in particular, the negligence of his servants, and determining that he shall compensate his employee for accidental injuries received in his service according to a different rule, through another remedy, and in its judgment by a better plan? If, in a word, it may declare that contributory negligence shall no longer be a defense, may it not also declare, as to purely accidental injuries, that negligence shall no longer be actionable? If it may change defensive common law rules, may it not also change a common law rule of liability? The power of the Legislature cannot exist in the one instance and not in the other. In virtue of its authority to enact laws, and, in doing so, to supersede common law rules where it deems such action wise, it exists in both: and it was in our opinion therefore competent for the Legislature, by this Act, to change both the common law rule of defenses and the common law rule of liability with respect to accidental injuries sustained by an employee in the course of his employment, requiring the employer, if he elects to come under the Act, to provide, according to its plan, a fixed compensation to be paid the employee, or his beneficiaries if his injury results in death, and denying to the employee of an employer subject to the Act, or his beneficiaries, the right of recovery therefore according to common law rules." Middleton V. Texas Power, etc., Co., (Tex.) 185 SW 556, 561. (2) "In the way modern undertakings are conducted it is rarely possible to trace personal fault to the employer, but he has been held liable for wrongs of others under the doctrine of respondeat superior. That doctrine has been developed by the courts to make the principal accountable for the conduct of his affairs, though it must be remembered that it does not rest on the doctrine of agency. No one has a vested right under the Constitution to the maintenance of that common-law doctrine, which undoubtedly may be extended or curtailed by the legislature. No one doubts that the doctrine of assumption of risk and the fellow-servant doctrine, also developed by the courts under different conditions than those now prevailing, may be limited or entirely abrogated by the legislature. Acts having that effect have been sustained by repeated decisions of this court. The power to limit or take away must also involve the power to extend. At the common law the servant was held to assume by implied contract the ordinary risks of the employment, including the risk of a fellow-servant's negligence, and even of negligence imputable to the master if the danger was obvious, or with knowledge of it the servant voluntarily continued in the employment. It would not be a great extension of that doctrine for the legislature to provide that the employee should assume the risk of all accidental injuries, and if that can be done, it is certainly competent for the legislature to provide by the creation of an insurance fund for a limited compensation to the employee for all accidental injuries, regardless of whether there was a cause of acton for them at common law." Jensen v. Southern Pac. Co., 215 N. Y. 514, 527, 109 NE 600, LRA1916A 403, AnnCas1916B 276. [b] Application of rule. The fourteenth amendment to the federal constitution is not violated by the rule of pleading that in an action under the workmen's compensation act against an employer who has rejected the act the employer must plead in defense or mitigation that no negligence of his was the proximate cause of the injury, that the servant was willfully negligent, or negligent as the result of intoxication, and that the servant was guilty of contributory negligence. Hunter v. Colfax Cons. Coal Co., (Iowa) 157 NW 145. 33. Young v. Duncan, 218 Mass. 346, 106 NE 1; Mackin v. DetroitTimkin Axle Co., 187 Mich. 8, 153 NW 49; Sayles v. Foley, (R. I.) 96 A 340. See In re Opinion of Justices, 209 Mass. 607, 610, 96 NE 308 (where the court said: "The act expressly provides that it shall not apply to injuries sustained before it takes effect. If, therefore, a right of ac tion which has accrued under existing laws for personal injuries constitutes a vested right or interest, there is nothing in the section which interferes with such right or interest"). [a] ilustration.-Workmen's compensation act (St. [1911] c 751) pt 1 $ 5, requiring an employee at the time of entering employment to notify his employer that he claims his common-law rights of action, affects no existing property right, but merely a situation which antedates any property right arising out of tort. Young v. Duncan, 218 Mass. 346, 106 NE 1. 34. Mackin V. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49; Sexton v. Newark Dist. Tel. Co., 84 N. J. L. 85, 86 A 451 [aff 86 N. J. L. 701, 91 A 1070]; Middleton v. Texas Power, etc., Co., (Tex.) 185 SW 556. [a] Substitution of different remedy. "A vested right of action given by the principles of the common law is a property right, and is protected by the Constitution as is other property. The Act, however, does not profess to deal with rights of action accruing before its passage. That which is withdrawn from the employee is merely his right of action against the employer, as determined by the rules of the common law, in the event of his future injury. This is nothing more or less than a denial to him by the Legisla- . ture of certain rules of the common law for the future determination of the employer's liability to him for personal injuries incurred in the latter's service, and, in the plan of compensation provided, the substitution by the Legislature of another law governing such liability and providing a different remedy.' Middleton v. Texas Power, etc., Co., (Tex.) 185 SW 556, 560. [b] Accidental as distinguished from intentional wrong.-"It is therefore not to be doubted that the Legislature is without the power to deny the citizen the right to resort to the courts for the redress of any intentional injury to his person by another. Such a cause of action may be said to be protected by the Constitution and could not be taken away; nor could the use of the courts for its enforcement be destroyed. This Act does not affect the right of redress for that class of wrongs. The injuries, or wrongs, with which it deals are accidental injuries or wrongs. What we know and denominate as the cause of action arising from an accidental injury is purely the creation of the common law. It is a common law liability founded upon the common law doctrine of negligence; and but for the rule of the common law.sometimes also expressed in statutes, there would be no liability for such an injury, and hence no cause of action for it." Middleton v. Texas Power, etc., Co., (Tex.) 185 SW 556, 560. 35. Ives v. South Buffalo R. Co., 201 N. Y. 271, 298, 94 NE 431, 34 LRANS 162, AnnCas1912B 156. "So far as the statute merely creates a new remedy in addition to those which existed before it is not invalid. The state has complete control over the remedies which it offers to suitors in its courts even to the point of making them applicable to rights or equities already in existence. It may change the common law and the statutes so as to create duties and liabilities which never existed before." Ives v. South Buffalo R. Co., supra. isting statutory right of action.36 Change in rules of evidence. It is within the province of the legislature to change existing rules as to presumptions and burden of proof;37 hence a statute is not invalid for the reason that it places the burden on the employer to show that the injury was not the result of his negligence, or for the reason that it creates a presumption as to the acceptance of its terms39 or as to the fact that a claim comes within the provisions of the act." 36. Meese v. Northern Pac. R. Co., 206 Fed. 222 [rev on other grounds 211 Fed. 254, 127 CCA 622 (rev 239 U. S. 614, 36 SCt 223)] (action for death by wrongful act). 37. Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037; McQueeney v. Sutphen, 167 App. Div. 528, 153 NYS 554. 38. Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037. 39. Sexton v. Newark Dist. Tel. Co., 84 N. J. L. 85, 95, 86 A 451 [aff 86 N. J. L. 701, 91 A 1070]. may The "Perhaps the real complaint of the prosecutor is that the legislature by paragraph 9 has created a presumption that, with respect to contracts of hiring made after the act becomes effective, the parties are acting under the second section, if one or the other does not then or before the accident expressly elect to operate under the first. It cannot be doubted that under our industrial conditions and in order to avoid much confusion and unproductive litigation, it well have been considered proper to establish some presumptive rule as to an election between section 1 and section 2 of the act. It can make no practical difference whether the presumption is that the contract of hiring is subject to section 1 or to section 2, or whether both employer and employe are required to enter into some express contract accepting one or the other of the statutory alternatives. latter course would naturally involve a very great amount of labor and trouble, especially on the part of employes. The legislature has seen fit to adopt a presumptive rule, leaving the parties to overcome the presumption by their own act, if they desire to do so. It has also seen fit to adopt the presumption in favor of section 2, no doubt because it was thought that that offered the fairest basis for both employer and employe. It would have been quite as competent for the legislature to adopted either of the other alternatives suggested, but in its wisdom it has not seen fit to do so. 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 objection [depriving employer of property without due process of law] stated, section 2 is constitutional.' Sexton V. Newark Dist. Tel. Co., supra. have 40. McQueeney v. Sutphen, 167 App. Div. 528, 153 NYS 554. 41. U. S.-Hawkins v. Bleakley, 220 Fed. 378 (sustaining Iowa L. [1913] c 147). Ill-Strom V. Postal Tel. Cable Co., 271 Ill. 544, 111 NE 555; Dietz v. Big Muddy Coal, etc., Co., 263 Ill. 480, 105 NE 289; Crooks v. Tazewell Coal Co., 263 II. 343, 105 NE 132, AnnCas1915C 304; Deibeikis v. Link Belt Co., 261 I11. 454, 104 NE 211, AnnCas1915A 241. Iowa.-Hunter v. Colfax Cons. Coal Co., 154 NW 1037 (Iowa act takes away only defenses of assumption of risk and fellow servant). Kan. Hovis V. Cudahy Refining Co., 95 Kan. 505, 148 P 626 (L. [1911] c 218 § 46). 38 [12] 4. Abrogation of Common-Law Defenses. Compensation acts are not invalidated by the fact that they abrogate or restrict the defenses of contributory negligence, assumed risk, and negligence of a fellow servant," the reason being that there is no vested interest in a mere rule of the common law12 and that these defenses being based merely on judicial decisions are within the power of the legislature to abolish or to modify." While by the great weight of authority the three defenses menMass.-In re Opinion of Justices, | dleton V. Texas Power, etc., Co., 209 Mass. 607, 96 NE 308 (where, however, the court confined its decision to the validity of the statute as meaning contributory negligence or negligence on the part.of a fellow servant falling short of the serious or willful misconduct which under the statute would deprive an employer of compensation). 40 Mich.-Wood v. Detroit, 155 NW 592. Minn.-Mathison v. Minneapolis St. R. Co., 126 Minn. 286, 148 NW 71, LRA1916D 412. N. H.-Wheeler v. Contoocook Mills Corp., 77 N. H. 551, 94 A 265. N. J.-Sexton v. Newark Dist. Tel. Co., 84 N. J. L. 85, 86 A 451 [aff 86 N. J. L. 701, 91 A 1070]. Oh.-State v. Creamer, 85 Oh. St. 349, 97 NE 602, 39 LRANS 694. 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; Consumers' Lignite Co. v. Grant, (Civ. A.) 181 SW 202. Wash.-State v. Clausen, 65 Wash. 156, 117 P 1101, 37 LRANS 466. W. Va.-Watts v. Ohio Valley Electric R. Co., 88 SE 659; De Francesco v. Piney Min. Co., 86 SE 777. Wis.-Borgnis v. Falk Co., 147 Wis. 327, 133 NW 209, 37 LRANS 489. "That the defenses mentioned may be entirely abolished, or abolished as to certain classes of employments only, is too well settled to require argument." Mathison v. Minneapolis St. R. Co., 126 Minn. 286, 290, 148 NW 71, LRA1916D 412. [a] Establishment of changed public policy.-"At a time when industries of all kinds were comparatively simple and free from danger. when employees of a common master were few in number and generally acquainted with each other, and when a personal injury action was a rarity, it was thought not to be unreasonable that an employee should assume those simple risks which were plainly before him, and should not be heard to complain if he were injured by the careless act of a fellow-workman by whose side he had continued to work when he must have well known the nature and habits of the man. The precedent once made was generally followed, until it became buttressed by a multitude of decisions in practically all of the jurisdictions whose jurisprudence is founded upon the English common law. But, as has been pointed out earlier in this opinion, the conditions surrounding employer and employed have vastly changed during the last half century, and now the legislature having become convinced that new conditions call for a change in the rules of liability, have declared that such a change shall be made. They have changed the rule established by the courts because they deem another rule better fitted to deal with the problems of the time, or, in other words, because they deem it best to establish a changed public policy." Borgnis v. Falk Co., 147 Wis. 327, 352, 133 NW 209, 37 LRANS 489. 42. Mathison v. Minneapolis St. R. Co., 126 Minn. 286, 148 NW 71, LRA 1916D 412; Sexton v. Newark Dist. Tel. Co., 84 N. J. L. 85, 86 A 451 [aff 86 N. J. L. 701, 91 A 1070]; Mid 43 (Tex.) 185 SW 556; Consumers' Lignite Co. v. Grant, (Tex. Civ. A.) 181 SW 202; Watts v. Ohio Valley Electric R. Co., (W. Va.) 88 SE 659, 661. "A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the Legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances." Watts v. Ohio Valley Electric R. Co., supra [quot Mondou v. New York, etc., R. Co., 223 U. S. 1, 50, 32 SCt 169, 56 L. ed. 327, 38 LRANS 44, which sustained the federal employers' liability act which denied the same defenses to an interstate carrier]. 43. Hawkins v. Bleakley, 220 Fed. 378; Deibeikis v. Link-Belt Co., 261 Ill. 454, 104 NE 211, AnnCas1915 A 241; In re Opinion of Justices, 209 Mass. 607, 610, 96 NE 308; Borgnis v. Falk Co., 147 Wis. 327, 133 NW 209, 37 LRÁNS 489. "The rules of law relating to contributory negligence and assumption of the risk and the effect of negligence by a fellow servant were established by the courts, not by the Constitution, and the Legislature may change them or do away with them altogether as defenses (as it has to some extent in the employers' liability act) as in its wisdom in the exercise of powers entrusted to it by the Constitution it deems will be best for the 'good and welfare of this Commonwealth.'" In re Opinion of Justices, supra. [a] "Each of these defenses first crept into the law by slight recognition and then grew and developed by judicial decisions without the aid of legislation. And it cannot be so that, simply because such became recognized as the law by judicial decisions, they cannot be abridged or denied by legislation. The same is true of the doctrine of fellow servants. That doctrine never was affirmed by legislation except impliedly, and impliedly only because of legislative action denying such a defense as to railroads and some other hazardous employments. All lawyers know that the court-made rule in Iowa, for a long time mainbut tained against the decided weight of authority, is that the injured person must show that he was without fault or negligence. Most of the appellate courts hold otherwise, holding that it is a defense only. United States courts sitting in Iowa, as well as in all the other states, hold that it is defensive only and requires the defendant to show by a preponderance of testimony that the injured man or deceased contributed to the injury. For a long time many of the states had the rule of comparative negligence, and now in some instances Iowa has such a rule. But in none of these matters is there any vested right for or against any of these defenses or burdens placed upon the plaintiff. They closely belong to or inhere in police 44. See cases supra note 41. 45. Strom V. Postal Tel. Cable Co., 271 Ill. 544, 111 NE 555; Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1066. | [14] D. Class Legislation and Equal Protection of Laws - 1. Unjust Classification. The discretion of the legislature as to the persons and the occupations to which a compensation act shall extend will not be interfered with by the courts so long as the classification is not arbitrary or unreasonable. Primarily, the fundamental classification common to all of the elective acts, making a distinction between those employers who elect to come within the operation of the act and those who choose to remain without, has been sustained;50 49 regulations for the preservation of ings. The proceedings before such | The rules governing classification life and limb and are within the boards are not expected to be as are familiar and are in brief as follegislative powers of the state, and formal and cumbrous as the proceed-lows: It must be based on substanin interstate commerce matters ings of courts; indeed, the greater within the powers of Congress." flexibility which such bodies must Hawkins v. Bleakley, 220 Fed. 378, possess if they are to discharge their 381. duties seems to demand greater freedom of action. If notice, either actual or constructive, of the commencement of the proceedings before such a body be required to be given to the parties interested and they be given full and free opportunity to be heard and present evidence, it is generally held sufficient, even though notice of intermediate steps in the proceeding be not required or given. Schintgen v. La Crosse, 117 Wis. 158, 94 NW 84. In case of a board like the present, which only acts on the rights of parties who have consented that it may so act, the reason of the rule is far stronger." Borgnis v. Falk Co., supra. "As to the elimination by the act of various defenses resting on risks assumed by the employé the taking of such defenses has been generally held to be within the power of the Legislature." Hunter v. Colfax Cons. Coal Co., supra. 46. Ives v. South- Buffalo R. Co.. 201 N. Y. 271, 289, 94 NE 431, 34 LRANS 162, AnnCas1912B 156. But see Jensen v. Southern Pac. Co., 215 N. Y. 514, 527, 109 NE 600, LRA 1916A 403, AnnCas1916B 276 (where the court in sustaining the later New York act, L. [1914] c 41, said: "No one doubts that the doctrine of assumption of risk and the fellowservant doctrine developed by the courts under different condition than those now prevailing, may be limited or entirely abrogated by the legislature"). "Statutory modifications of the 'fellow-servant' 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 R. Co., supra. [a] Against weight of authority. "As to the right to abolish the defense of assumption of risk, it is enough to say here that the great weight of authority is against the New York position" [as announced in Ives v. South Buffalo R. Co., 201 N. Y. 271, 94 NE 431, 34 LRANS 162, AnnCas1912B 156]. State v. Creamer, 85 Oh. St. 349, 396, 97 NE 602, 39 LRANS 694. 49. Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 35 SCt 167, 59 L. ed. 364; Hunter V. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1053; Greene v. Caldwell, 170 Ky. 571, 186 SW 648; Middleton v. Texas Power, etc., Co., (Tex.) 185 SW 556. See American Coal Co. v. Allegany County Comrs., 128 Md. 564, 98 A 143 (sustaining an act for the establishment of a fund for the relief of employees injured in coal and clay mining in two counties of the state). "The power to classify is primarily in the Legislature, that the courts accord it the widest latitude in performing this function, and that a classification adopted by it will be sustained unless it is so palpably arbitrary as that there is no room for doubt that discretion has been abused by indulging in an unjustifiable discrimination." Hunter V. Colfax Cons. Coal Co., supra. [a] Police regulations.-"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 Contractual and voluntary assump-laws, takes from the state the power tion of risk distinguished see infra to classify in the adoption of police § 159. regulations. The limitations imposed admit of a wide discretion in this respect, and avoid only what is done without any reasonable basis; that is, such regulations as are in their nature arbitrary." State v. Clausen, 65 Wash. 156, 196, 117 P 1101, 37 LRANS 466. 47. Borgnis v. Falk Co., 147 Wis. 327, 353, 133 NW 209, 37 LRANS 489. "There may be a less persuasive reason for the change in the case of the latter class of industries, but this does not deprive the legislature of the power to make it." Borgnis v. Falk Co., supra. [b] Class legislation.-Some decisions relying on other authorities have declared statutes good as against the objection that they were discriminatory or class legislation without specific discussion. Young v. Duncan, 218 Mass. 346, 106 NE 1; Memphis Cotton Oil Co. v. Tolbert, (Tex. Civ. A.) 171 SW 309. 48. Borgnis v. Falk Co., 147 Wis. 327, 363, 133 NW 209, 37 LRANS 489. "Objection is made to those clauses of sec. 2394-16 which provide for the giving of notice of claim by mail, and allow testimony to be taken without notice to either party, and the claim is made that this is 50. Mathison v. Minneapolis St. not 'due process of law.' Were the R. Co., 126 Minn. 286, 148 NW 71, Commission a court these objections LRA1916D 412; Borgnis v. Falk Co., would probably deserve serious con- 147 Wis. 327, 353, 133 NW 209, 37 sideration, especially the latter one. LRANS 489 (where the court, in disBut, as we have seen, the Commis- cussing the abolition of the defenses sion is an administrative board of assumption of risk and negligence merely. It is common knowledge of a fellow servant by L. [1911] that such boards are frequently given c 50, said: "The two defenses are prepower to investigate and determine served intact to employers who elect facts without notice to the parties of to come under the law and taken each successive step in the proceed-away from those who do not so elect. tial distinctions which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only; and must apply equally to each member of the class. It seems to us that this classification fully meets these requirements. Certainly there will be very real differences between the situation of the employer who elects to come under the law and the employer who does not. If the consenting employer only employs workmen who also elect to come under the law, he can never be mulcted in heavy damages, and will know whenever an employee is injured practically just what must be paid for the injury. Surely this is a different situation from the situation of the man who is liable to be brought into court by an injured employee at any time and obliged to defend commonlaw actions upon heavy claims unliquidated in their character, the outcome of which actions none can foretell. On the other hand, if, as seems quite likely, the greater part of the consenting employer's workmen consent, but some do not, and these latter are still retained in the employment, the same considerations will apply with somewhat less force. On the one hand there is a class of consenting employers employing wholly or largely consenting workmen, and having definite and fixed obligations to their workmen in case of injury. On the other hand is a class of nonconsenting employers who have no such fixed obligations in case of injury to their workmen, but choose to meet every such workman in court and fight out the question of liability. There seems a very robust difference between these two classes. But after all there is another distinction which seems perhaps more satisfactory: the consenting employer has done his share, and it must be considered a considerable share, in rendering successful the legislative attempt to meet and solve a difficult social and economic problem. Even if it be true (which, as before stated, is not decided) that he may not be compelled under our constitutions, state and national, to assist in the solution of this problem, still does not his voluntary act in giving that assistance constitute a substantial distinction, making a real difference of situation between him and the employer who refuses his aid a difference which justifies a difference in treatment?"). Compare Sayles v. Foley, (R. I.) 96 A 340, 345 (where the court, in discussing the changes in the right of action and the defenses resulting from the choice of the employer or the employee as to coming under the act, said: "The respondents treat the differences in situation thus resulting as a classification by the law itself. Some courts have so treated it. We question the correctness of this. Without, however, definitely passing on the point, it will at present suffice to call attention to the fact that whatever of inequality results as to different employés arises from the fact that the abolishing of the three |