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were cases


and a statute, elective as to both employers and pations designated as hazardous,55 or to a single employees, is not improper because the results of industry of this character.56 And, although an act a failure to accept the act are not identical in the confined to extra hazardous occupations is subject case of each.51 Further, a statute may, without to the construction that it allows workmen emviolating any constitutional inhibition, be made ployed in such industries the benefit of the act elective as to private employers and compulsory as when injured outside the line of their duties or to municipal employers. An insurance act appli- when engaged in the business of the employer in cable to the state and the municipalities as well a capacity not affected by its peculiar hazards, it as to private employers may without being invalid is not for that reason void as class legislation or provide that amounts paid to the state insurance as depriving of the equal protection of the laws," fund by the state and its subdivisions are to be although the act diverts the contributions exascertained by a method different from that pre- acted from the industries to which it applies to the scribed in the case of other employers.53 So the relief of injured workmen generally or to the use legislature may establish a measure of duty owing of the state at large.5 to a public employee different from that owing to Exception of particular classes. The exception a citizen who is not in the public service.54

from the operation of the act of certain classes of Hazardous occupations. A statute is not invalid persons cannot be regarded as unjust discriminabecause its operation is restricted to certain occu- tion where the acceptance of the act is elective, defenses of the employer is not made not vital, and does not sustain the c 674) art 14a, imposing an absolute universal, but is limited to actions broad assertion made that an arbi- liability on employers for injuries to against employers who do not accept trary difference is created as to the employees engaged in specified occuthe compensation scheme of the act. consequences of conduct which is, in pations classified as dangerous, was The benefit to the employé results substance, alike.

It may
be well not in violation of U. S.

Const. from and is wholly incidental to the said, in passing, that such differences Amendm. 14, guaranteeing equal prodepriving of the employer of what do exist are sustained by the tection of laws, on the theory that hitherto has been held to be his quite generally accepted doctrine the classification was fanciful and right. The employé is deprived of that the freedom to contract is only arbitrary). no prior existing right").

in theory enjoyed by the employe as 56. Cunningham v. Northwestern [a] Distinction not arbitrary. fully as by his employer, and that Impr. Co., 44 Mont. 180, 211, 119 P "The defenses of contributory negli- | the police power may be invoked to 554 (where the court said of L. gence, assumption of risk, and neg- sustain

differentiations in

(1909) C 67: "The fact that coal ligence of a fellow servant

favor of the employe, on the theory mining is alone-selected from numerdoubtless abrogated in the


a method of protecting ous other dangerous employments is specified, and not abrogated in other him for the public good against the not at all significant. Legislation of cases, to induce an acceptance of the actual inequality between him and this character is in its infancy, and provisions of part 2 of the act. But, his employer." Hunter v. Colfax

if it be found adequate to correct notwithstanding this purpose, the act Cons. Coal Co., supra.

the evils growing out of the present permits any employer to place him

52. Wood v. Detroit, (Mich.) 155 system, it may gradually be extended self within either class of employers NW 592 (so holding since the im- to apply to all extrahazardous emat his election, and to change from position of the law on municipalities ployments. So long as all persons one to the other if he so desires; it works no invasion of private rights, operating coal mines are treated also permits any employee to place as the burden assumed by such cor- alike, no one of them has cause of himself within either class of porations is distributed immediately complaint. The same may be said ployees at his election, and to change and finally on the community, sub- of coal miners"). from one to the other if he so de- ject to be taxed to raise the funds


State Clausen, 65 Wash. sires. Such legislation is not dis- necessary to compensate the injured 156, 117 P 110i, 37 LRANS 466. criminatory and is not inhibited by workmen).

58. State v. Clausen, 65 Wash. 156, the Constitution. Furthermore, if 53. Porter v. Hopkins, 91 Oh. St. 197, 117 P 1101, 37 LRÁNS 466. its validity rested upon the distinc- 74, 109 NE 629.

"To divert the money collected in tion between the two classes of em- 54. Lewis, etc., County v. State

this manner to a special use is one of ployers and the distinction between Industrial Acc. Bd., (Mont.) 155 P

the prerogatives of legislation. The the two classes of employees, we 268.

right of the state to regulate any could not say that such distinction 55. Shade v. Ash Grove Lime, etc.,

form is so fanciful and arbitrary, or so Co., 93 Kan. 257, 144 P 249; Lewis, fact that its pursuit affects injuri

of industry arises from the wanting in substance, that the legis- etc., County v. State Industrial Acc.

ously the health, safety, morals, or lature is prohibited from applying Bd., (Mont.) 155 P 268; Wheeler v.

welfare of the persons engaged in it, rules to one class which it does not Contoocook Mills Corp., 77 N. H. 551,

or is inimical in some form to some apply to the other." Mathison V. 94 A 265 (sustaining acts [1911) portion of the individuals of the Minneapolis St. R. Co., 126 Minn, 286, C 163, which is by $ i restricted to

community. It is not necessary that 294, 148 NW 71, LRA1916D 412. workmen engaged in manual or me51. Hunter v. Colfax Cons. Coal chanical labor in the following em

it always affect injuriously the pub

lic at large. Co., (Iowa) 154 NW 1037, 1053.

On the contrary, it may ployments: "(a) The operation

be regulated if it affects injuriously “We are asked to hold that the steam or electric railroads of locostatute contains an improper classi- motives, engines, trains or cars,

those engaged in it, or those brought fication and an arbitrary differentia

in direct contact with it, even though the construction, alteration, maintetion because, as is claimed, if em- nance or repair of steam railroad

its pursuit may benefit generally the ployer and employe both reject, the tracks or road beds over which such

people of the state at large. Nor is employe none the less takes the bene- locomotives, engines, trains or cars there any particular form which the fit of the act, and that where the are or are to be operated. (b) Work regulation must take. The conduct master accepts and the employe re- in any shop, mill, factory or other

of the business may be prohibited jects, the one who rejects gets as place on, in connection with or in entirely in a particular place or in a much as the one who accepts.

proximity to any hoisting apparatus, particular manner; its pursuit may We find this to be the situation:

or any machinery propelled or oper- be restricted to certain hours of the Section 5 provides that where both ated by steam or other mechanical | day; it may be permitted to be conreject, the liability of the employer power in which shop, mill, factory or ducted only in

protective shall be the same as though the other place five or more persons are

devices are used; or it may be peremploye had not rejected. But this engaged in manual or mechanical mitted in certain forms and a sum does not stand alone. For paragraph labor. (c) The construction, opera- of money exacted from the individuB of section 3 provides that if the tion, alteration or repair of wires or als carrying it on for the purpose of employe rejects, he must suffer. in lines of wires, cables, switchboards recompensing those who suffer losses his suit for injury, that the employer or apparatus, charged with electric because thereof. So ir this instance, may plead and rely upon 'an and all currents. (d) All work necessitating if the legislature believed that to defenses, including those at common dangerous proximity to gunpowder, permit the pursuit of the industries law, and the rules and defenses of blasting powder, dynamite or any

named after the present manner of contributory negligence, assumption other explosives, where the same are conducting them was generally for of risk, and fellow servant,' with cer- used as instrumentalities of the in- the public good in spite of the losses tain limitations, and section 10 is dustry, or to any steam boiler owned the method of pursuit entailed, there that compensation under the act is or operated by the employer, pro- is no reason why it should not conto be awarded only if both have done vided injury is occasioned by the fine its regulations to compelling the what amounts to acceptance of the explosion of any such boiler or ex- owners and conductors of such inact. Construing all together, it is plosive. (e) Work in or about any dustries to create a fund out of found that the act does penalize the quarry, mine or foundry"); Ives v. which the

losses caused thereby employe who rejects.

That the pen- South Buffalo R. Co., 201 N. Y. 271, should be made good. That legislaalties imposed upon the master and 94 NE 431, 34 LRANS 162, AnnCas tion in this form is not class legislathe servant may not be precisely the 1912B 156 (holding that the work-tion, nor a denial to owners of propsame is, as will presently be seen, meh's compensation act [L. (1910) Terty of the equal protection of the

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since members of either the included or the ex- in the hazardous employments enumerated,


emcluded class may place themselves in the position ployees receiving more than eighteen hundred dolof members of the other.58 But even apart from lars per year,66 railroads or railroad employees this consideration it is not to be regarded as im- engaged in

interstate commerce,

employees of proper classification that a compensation act ex- railroads or

common carriers, 68

persons whose cepts from its operation domestic servants,60 farm employment is of a clerical nature, employers


63 laborers,61 casual employees, gin laborers, per- of five or less workmen and their employees, sons who are employed otherwise than for the pur- employers having less than five workmen, i or empose of the employer's trade or business, em- ployers having less than four employees. So a ployees engaged in work of an incidental character city is not deprived of the equal protection of the unconnected with the dangers necessarily involved laws by a statute imposing liability only in favor laws, is well sustained by authority." R. I.–Sayles v. Foley, 96 A 340. ing out and who might come in beStaté v. Clausen, supra.

63. Middleton

Texas Power, cause of the number employed are 59. Hunter v. Colfax Cons. Coal etc., Co., (Tex.) 185 SW 556.

deprived of certain defenses which Co., (Iowa) 154 NW 1037, 1053 64. Deibeikis v. Link-Belt Co., 261 the law might abolish as to all if it (where the court, in speaking of the Ill. 454, 104 NE 211, AnnCas1915A was seen fit to do so. If a line is to exception of farm laborers, domestic 241.

be drawn in making such laws by servants, and casual employees said: 65. Deibeikis v. Link-Belt Co., 261 the number employed, it may be that “Assuming, for the time, that the Ill. 454, 104 NE 211, AnnCas1915A those very near the dividing line will act is not compulsory, then excluding 241.

be acting under practically the same these certain employés works dis

Sayles v. Foley, (R. I.) 96 A conditions as those on the other side crimination neither against those ex340.

of it; but if the State has the right cluded nor against those included. 67. Mathison v. Minneapolis St. R.

to pass police regulations based upon If it is at the option of those in- Co., 126 Minn, 286, 148 NW 71, LRA such differences, and this court has cluded whether they will take what 1916D 412.

held that it has,-we must look to the act gives, its operation upon [a] Reason for exception.-"We

general results and

practical dithem is due to consent on their part think it is within the discretion of

visions between those so large as to that it shall thus operate. All they the legislature to place in a class by need regulation and those so small need do to prevent discrimination themselves those employers and

as not to require it in the legislative against them, consisting of being in- those employees who, for the reason

judgment. It is that judgment cluded when others are not, is to that they are engaged in interstate

which, fairly and reasonably exerreject the act. The moment they commerce, are subject to the laws

cised. makes the law;

not reject, they are for all practical pur- which have been, or may be passed Jeffrey Mfg. co. v. Blagg, 235 U. S. poses, as much excluded as those by Congress. Within the domain of

571, 578, 35 SCt 167, 59 L. ed. 364. who are excluded by the words of interstate and foreign commerce, the

72. Borgnis v. Falk Co., 147 Wis. the statute. On the other hand, there power of Congress is supreme; and

327, 355, 133 NW 209, 37 LRANS 489. is nothing in the act to prevent those the legislature may well refrain from

Reason for classification. excluded from making contracts by including within the operation of the

"The minor classification by which which they may have all the statute state laws those persons as to whom

the fellow-servant defense

is pregives to those who accept it. There such laws are or may be rendered is nothing in the statute which pre- nugatory by the laws of the United served to all employers employing vents a farmer and his laborer from States. Deibeikis v. Link-Belt Co.,

less than four employees in a comentering into contract that if the 261 111. 454, 104 NE 211, AnnCas

mon employment is also attacked as laborer be injured in the course of 1915A 241. The suggestion that the having no proper legal basis, but it

seems to us that the employment, the employer shall present law does not exclude from

the grounds of not make certain defenses, and that its operation all who are engaged in classification here are more persuaarbitrators, mutually agreed upon, interstate commerce, but only those

sive even than in the case just disshall award compensation, in accord- who are engaged in such commerce

cussed. The man who is employed ance with the schedule contained in by railroad, is sufficiently answered

with one or two other men in a given this act, and they may resort to the by the decisions affirming the valid

employment, in all reasonable probageneral arbitration statutes. If both ity of laws which apply only to those bility knows their characteristics those included and those excluded engaged in interstate commerce by

well and will probably be with them are each permitted to and can read- railroad Mondou V. New York, etc.,

a great part of the time. He will ily put themselves into the position R. Co., 223 U. S. 1. 32 SCt 169, 56 have ample opportunity to form a of the others, there would seem to L, ed. 327, 38 LRANS 44." Mathison just judgment as to the risk of be, at most, a purely academic dis- v. Minneapolis St. R. Co., 126 Minn. injury from their negligence which crimination against either"). 286, 293, 148 NW 71, LRÁ1916D 412.

he will run if he works with them, 60. Cal.-- Western Indemn. Co. v. 68. Middleton

Texas Power, and will be enabled to shape his own Pillsbury, 170 Cal. 686, 151 P 398. etc., Co., (Tex.) 185 SW 556.

conduct accordingly; but the man Iowa.-Hunter v. Colfax Cons. Coal


Deibeikis v. Link-Belt Co., 261 who is one of a large number of men, Co., 154 NW 1037.

III, 454, 104 NE 211, AnnCas1915 A many of whom he never sees, and Mass.-In re Opinion of Justices, 241.

some of these latter having duties 209 Mass. 607, 96 NE 308.

70. Sayles v. Foley, (R. I.) 96 A to perform in distant places upon the Mich.-Mackin Detroit-Timkin 340.

due performance of which his own Axle Co., 187 Mich. 8, 153 NW 49. 71. Jeffrey Mfg. Co. v. Blagg, 235 safety depends, has no opportunity

Minn. --Mathison v. Minneapolis St. U. S. 571, 578, 35 SCt 167, 59 L. ed. to acquire any accurate knowledge R. Co., 126 Minn, 286, 148 NW 71, 364 (where the court said of the Ohio of the characteristics of many of his LRA1916D 412.

act of 1911: "We are not prepared fellow-workmen, and cannot intelliR. I.-Sayles v. Foley, 96 A340. to say that this act of the legisla- gently decide what risk he runs at

Tex.--Middleton v. Texas Power, ture, in bringing within its terms all the hands of such distant and unetc., Co., 185 SW 556.

establishments having five or more known employees. The difference in 61. Cal.-Western Indemn. Co. v. employés, including the deprivation situation is not merely fanciful-it Pillsbury, 170 Cal. 686, 151 P 398 of the defense of contributory negli- | is real. In one

case the employee (the California act considered in this gence where such establishments knows or has the means of knowing opinion excluded any employee en- neglect to take the benefit of the what to expect from his colaborers, gaged in farm, dairy, agricultural, law, and leaving the employers of less in the other case he has neither the viticultural, or horticultural labor, or than five out of the act was classi- knowledge nor the means of knowlin stock or poultry raising).

fication of that arbitrary and unrea- edge. Of course, there will be cases Iowa.--Hunter v. Colfax Cons. Coal sonable nature which justifies on the border line where the differCo., 154 NW 1037.

court in declaring this legislation un- ence in situation will be very slight, Kan. -Shade v. Ash Grove Lime, constitutional"); Shade v. Ash Grove or perhaps entirely nonexistent. etc., Co., 93 Kan. 257, 144 P 249.

Lime, etc., Co., 93 Kan. 257, 144 There will probably be no practical Mass.--In re Opinion of Justices, Р 249; State Creamer, 85 Oh. difference between the situation of 209 Mass. 607, 96 NE 308.

St. 349, 97 NE 602, 39 LRANS 694; the man who is one of four or five Mich.--Mackin V. Detroit-Timkin Middleton v. Texas Power, etc., Co., employees in given employment Axle Co., 187 Mich. 8, 153 NW 49. (Tex.) 185 SW 556.

and the situation of the man who is Minn.-Mathison v. Minneapolis St. [a] Matter for legislative judg- one of three, but this does not miliR. Co., 126 Minn. 286, 148 NW 71, ment.The supreme court of the tate against the legitimacy of the LRA1916D 412.

United States has said in speaking classification: this is a necessary deR. I.–Sayles v. Foley, 96 A 340. of the Ohio act of 1911: "This is not fect in all cases of classification

Tex-Middleton v. Texas Power, a statute which simply declares that based upon numbers. The question etc., Co., 185 SW 556.

the defense of contributory negli- is not whether there may be some on 62. Ill.--Deibeikis Link-Belt gence shall be available to employers one side of the line whose situation Co., 261 111. 454, 104 NE 211, AnnCas having less than five workmen, and is practically the same as that of 1915A 241,

unavailable to employers with five some on the other side, but whether Iowa.--Hunter v. Colfax Cons. Coal and more in their service.

This pro

there is a distinction between the Co., 154 NW 1037.

vision is part of a general plan to classes as classes, whether there are Mich.--Mackin Detroit-Timkin raise funds to pay death and injury characteristics which, in a greater Axle Co., 187 Mich. 8. 153 NW 49. losses by assessing those establish-degree, persist through the one class

Minn. Mathison v. Minneapolis St. ments which employ five and more than in the other which justify legal R. Co., 126 Minn. 286, 148 NW 71, persons and which voluntarily take discrimination between them.' State LRA1916D 412.

advantage of the law. Those remain- v. Evans, 130 Wis. 381, 110 NW 241."



of those receiving less than one thousand two hundred dollars a year and not holding an elective



Retaining liability on violation of safety regulations. A provision that nothing in the statute shall affect the civil liability of the employer when the injury to the employee was caused by the intentional omission of the employer to comply with statutory safety regulations cannot be regarded as making an improper classification.74

[$ 15] 2. Denial of Equal Protection of the Laws. The elective acts are not open to the objection that they deprive the parties of the equal protection of the laws, 75 and the same conclusion has been reached as to a compulsory insurance law7e and as to a compulsory compensation act with an optional insurance feature.? But an insurance act which is compulsory as to the employer but elective as to the employee is invalid as denying the employer the equal protection of the laws.78 Where all employers complying with a statute are alike exempted from liability at common law, the fact that certain other remedies remain as to particular employers does not deprive them of the equal protection of the laws,79 as for example the fact that certain employers may remain liable to a proceed

ing in admiralty.80

[ 16] 3. Abridgment of Privileges and Immunities of Citizens. The privileges and immunities of citizens of the United States are not abridged by an elective act81 or a compulsory insurance act.82 Except as restrained by treaty obligations, the legislature may exclude nonresident alien dependents from benefits.

[9 17] E. Taking Property for Public Use without Compensation. The fifth amendment to the federal constitution being applicable only to proceedings under federal laws does not affect a state compensation act ;84 but a provision in a state constitution against the taking of property for public use without compensation has been held to present no obstacle to such an act.85

[18] F. Taxation for Private Purposes; Uniformity of Taxation. The insurance acts, in exacting of the employers subject to their operation contributions to a general fund for the payment of claims for compensation, impose a liability in the nature of a tax.86 They are not, however, for this reason in violation of constitutional provisions designed to secure equal and uniform taxation for public purposes, or which prohibit taxation for private purposes,88 since the charge is made as inci


Borgnis v. Falk Co., 147, Wis. 327, | clay mining in two counties of the case, and not from any attempt at 355, 133 NW 209, 37 LRANS 489. state).

discrimination or the part of the 73. Allen v. Millville, 87 N. J. L. 77. Western Indemn. Co. v. Pills Legislature. All in the same case 356, 95 A 130. bury, 170 Cal, 686, 151 P 398.

are treated alike. Employers in the 74. Deibeikis v. Link-Belt Co., 261 78. Cunningham V. Northwestern situation of the appellant are subI11. 454, 465, 104 NE 211, AnnCas1915A | Impr. Co., 44 Mont. 180, 221, 119 P jected to two remedies now, precisely 241.

554 (where the court said: "After as they were before the passage of "It is contended that section 3 full compliance with the terms of the act. A new

remedy has been makes an improper classification, in the Açt, the employer is not exon- substituted for the common-law remthat it deprives the employee of his erated from liability. He may still edy, from which the employer is common law remedies while the em- be sued and compelled to pay dam- granted exemption.” Walker v. Clyde ployer is permitted to retain them. ages in a proper case. No provi- SS. Co., supra. This is clearly a misapprehension, as sion is made for reimbursement in 81. Hunter v. Colfax Cons. Coal the proviso in that section enlarges | whole or in part. The injured em- Co., (Iowa) 154 NW 1037. the remedy of the employee, and cor- ployees of one operator may all re- 82. State v. Mountain Timber Co., respondingly restricts that of the em- sort to the indemnity fund, while 75 Wash. 581, 135 P 645; State V. ployer. By this proviso, in case an those of another may elect to ap- Clausen, 65 Wash. 156, 117 P 1101, employee receives an injury as the peal to the courts. The result is 37 LRANS 466. result of the intentional omission of that the employer against whom an 83. Gregutis V. Waclark Wire the employer to comply with statu- action is successfully prosecuted is Works, 86 N. J. L. 610, 92 A 354. tory safety requirements, the em- compelled to pay twice. He has fully 84. Mathison v. Minneapolis St. R. ployer, although having elected to paid his assessments under the Act, Co., 126 Minn, 286, 148 NW 71, LRA come within the provisions of this and is also obliged to pay damages. 1916D 412. act, cannot avail himself of anything this fact is so palpable as to be 85. Mathison v. Minneapolis St. R. in the act to affect his liability under needless of discussion. The Act in Co., 126 Minn, 286, 148 NW 71, LRA such circumstances." Deibeikis V. this regard is not only inequitable 1916D 412. Link-Belt Co., supra.

and unjust, but clearly illegal and 86. State v. Clausen, 65 Wash, 156, 75. Hunter v. Colfax Cons. Coal void, as not affording to such em- 117 P 1101, 37 LRANS 466. Co., (Iowa) 154 NW 1037; Shade v. ployer the equal protection of the 87. Hunter v. Colfax Cons. Coal Ash Grove Lime, etc., Co., 93 Kan. laws").

Co., (Iowa) 154 NW 1037; State v. 257, 144 P 249 (L. [1911] c 218, as 79. Walker v. Clyde SS. Co., 215 Clausen. 65 Wash. 156, 117 P 1101, amended by L. [1913] c 216); Mathi- N. Y. 529, 109 NE 604, AnnCas1916B 37 LRANS 466. son v. Minneapolis St. R. Co., 126 87.

88. Stoll v. Pacific Coast SS. Co., Minn. 286, 148 NW 71. LRA1916D 80. Walker V. Clyde SS. Co., 215 205 Fed. 169 (sustaining Washington 412; Memphis Cotton Oil Co. v. Tol- N. Y. 529, 532, 109 NE 604, AnnCas act); Hunter v. Colfax Cons. Coal bert, (Tex. Civ. A.) 171 SW 309. 1916B 87. But see State v. Daggett, Co., (Iowa) 154 NW 1037; Cunning

76. Stoll v. Pacific Coast SS. Co., 87 Wash. 253. 151 P 648, LRA1916A ham v. Northwestern Impr. Co.. 44 205 Fed. 169 (Washington act); State 446 (where the Washington act was Mont. 180, 119 P 554; State v. Clau

Mountain Timber Co., 75 Wash. held not to apply to the owners of sen, 65 Wash. 156, 117 P 1101, 37 581, 135 P 645; State v. Clausen, 65 boats engaged in intra-state com- LRANS 466 and note. Wash. 156, 117 P 1101, 37 LRANS merce on Puget Sound, but the court [a] Determination by legislature. 466. See Northern Pac. R. Co. v. said that, if it was held so to apply —"The legislature, in carrying forMeese, 239U, S. 614, 36 SCt 223 and the owners were still left subject ward the policy of the state, directed (rev 211 Fed. 254, 127 CCA 622 (rev an action in admiralty by an by a clearly defined, dominant public 206 Fed. 222)] (holding that the injured employee, it might well be opinion, was warranted in declaring, equal protection of the laws is not doubted whether it would not offend | by implication, that the purpose for denied by construing the Washing- against the provision of the four- which the tax is imposed is a public ton Workmen's Compensation Act teenth amendment to the constitution one. This being so, the courts have (L. (1911) c 74), as taking away any of the United States, guaranteeing no power


declare otherwise." existing right under Remington & B. the equal protection of the laws). Cunningham v. Northwestern Impr. Code $$ 183, 194, to maintain an "It is argued that the act pur- Co., 44 Mont. 180, 215, 119 P 554. action for the wrongful death of

ports to grant exemption from fur- [b] Reason for rule.-"An analysis an employee, not only as against ther liability to those who comply of these decisions [Assaria State the employer, but as against any with it, and that as such exemption Bank v. Dolley, 219 U. S. 121, 31 $Ct third person by whose negligence is not effectual in the case of em- 189, 55 L. ed. 123; Noble State Bank the death may have been caused. | ployers whose property m

v. Haskell, 219 U. S. 104, 575, 31 SCt where the employee sustained the ceeded against in admiralty, it is as 186, 55 L. ed. 112, 32 LRANS 1062. fatal injury while engaged about his to them a denial of the equal pro- AnnCas1912 A 487, 575; Jensen v. ordinary duties at his employer's tection of the laws. The exemption, Southern Pac. Co., 215 N. Y. 514, 109 plant); American Coal Co. v. Alle- however, is from suits at common NE 600, LRA1916A 403, AnnCas1916B gany County Comrs., 128 Md. 564, law, of which all employers comply-276; State v. Clausen, 65 Wash. 156, 98 À 143 (sustaining an act for the ing' with the act equally have the 117 P 1101, 37 LRANS 466] demonestablishment of a fund for the re- benefit. If another remedy remain, strates they proceed on the reasonlief of employees injured in coal and it results from the nature of the ing that the statute does not impose


be pro



dent to an exercise of the police power,


and if order to pay claims for compensation.92 Nor is to be regarded as a tax is to be classified as a such an act invalid as in contravention of a conlicense tax.90 Further, with reference to the right stitutional provision that no tax shall be levied to exercise the police power, the benefit to the em- except in pursuance of law and that every law imployer may be regarded as a compensation for the posing a tax shall state distinctly the object of burden he is compelled to assume. A compensa- the same to which only it shall be applied, for the tion act compulsory as to municipalities is not void reason that it provides a certain charge or debt for the reason that it will compel the municipality which is to be paid by the state and governmental to levy a tax for other than a public purpose in subdivisions, the amount of which is to be deducted on the employer a liability to pay compensation acts, and the court says of taxation." Cunningham v. Northan employe or his dependents any that a compulsory scheme of insur- western Impr. Co., 44 Mont. 180, 212. sum of money whatsoever, but does ance to secure injured workmen in 119 P 554. (2) "As the charge laid require he shall secure to all his hazardous employments, and their de- on the persons engaged in the indusemployes compensation guaranteed pendents, from becoming objects of tries named in the act is a pecuniary by insurance--require that he do this charity 'certainly promotes the public burden imposed by public authority, under regulation by the state on pen- welfare as directly as does an insur- it partakes of the nature of a tax, alty for failure to comply, a penalty ance of bank depositors from loss.' and in the language of a distinimposed on the theory that he com- Hunter V. Colfax Cons. Coal Co., guished judge discussing a similar mits an unlawful act when he does (Iowa) 154 NW 1037, 1056.

question, 'for many purposes might that or omits that through which the 89, Hunter V. Colfax Cons. Coal be so spoken of without harm.' But employes and their dependents will Co., (Iowa) 154 NW 1037; Cunning- it is manifest that it is not a tax in suffer, and so suffering, inflict an ham v. Northwestern Impr. Co., 44 the sense the word is used in the secinjury upon the state. They hold Mont. 180, 212, 119 P 554; State v. tions of the constitution to which that Compensation Acts do not en- Clausen, 65 Wash. 156, 117 P 1101, reference is here made. No accession force individual liability growing out 37 LRANS 466.

to the public revenue, general or local, of contract, or liability for a tor- "The exercise of the police power is authorized or aimed at.

The purtious actor omission; that their is properly and necessarily supple-pose of the exaction is entirely difbasic aim is social justice; that they mented by the taxing power of the ferent. It is to be used, not to meet exercise a highly intelligent selfish- commonwealth, in order to carry the the current expenses of government, ness in recognizing there is no ulti-general plan into practical effect. Or, but to recompense employees of the mate advantage in obtaining products perhaps, it is more accurate to say industries on whom the burden is imat

too low rates on the fictitious that the power to tax for the pur-posed for injuries received by them basis that such rates include all the poses of the Act is necessarily in- while engaged in the pursuit of their cost of the product, when, in truth, cluded in the police power. It will employment. It is the consideration the selling price is below cost be- readily be seen that, unless the power which the owners of the industries cause part of the cost is thrown to impose taxes upon the extrahaz- pay for the privilege of carrying upon the most helpless of the peo- ardous industry can be invoked to them on. It is, therefore, in the ple, in the first instance, which 'sav- create an insurance fund, the Act is nature of a license tax, and can be ing,' and more, is ultimately thrown nugatory." Cunningham v. North-justified on the principle of law that upon the general community, in ex- western Impr. Co., supra.

justifies the imposition and collecpense of litigation over accidents, of 90. Cunningham v. Northwestern tion of license taxes generally. In caring for pauperized victims of the Impr. Co., 44 Mont. 180, 119 P 554; this state, such taxes may be imaccidents, and in the indefinable but State v. Clausen, 65 Wash. 156, 117 P posed, either as a regulation or for none the less real and serious dam- 1101, 37 LRANS 466.

the purposes of revenue, the only age to the state growing out of dis- [a] Nature of tax-(1) "Beyond limitation upon the power being that tress and pauperism thus permitted doubt there can be lawful tax such taxes when imposed on useful to exist. We so reach the satisfac- which is not laid for a public pur- trades and industries shall not be tory conclusion that the only inquiry pose.

What is a public purpose? unreasonable, and if а. class of need address ourselves


is Having determined that the general trades or industries is selected from whether the so-called taxation in- design of the Act may be upheld as the whole, and the tax imposed upon volved in the maintenance of insur- a proper exercise of the police power the class selected alone rather than ance be, if a tax, or though a tax, -that is, as being a scheme which upon the whole, that there be some a tax for a public purpose, sustained may result to the public welfare-we reasonable ground for making the by the police power; and we think are justified, perhaps, in accepting distinction." tate v. Clausen, 65 the cases answer in the affirmative, a corollary the conclusion that Wash. 156, 203, 117 P 1101, 37 LRANS and that independent thought sus- the tax imposed is for a public pur- 466. tains them." Hunter v. Colfax Cons. pose. Again, if the Act abolished 91. Hunter v. Colfax Cons. Coal Coal Co., (Iowa) 154 NW 1037, 1056. actions and causes of action for per- Co., (Iowa) 154 NW 1037.

[c] Effect of direct benefit to em- sonal injuries and death. the tax [a] “Applying the doctrine of the ployee or dependents.-(1) "The fact might be justified on the theory that bank deposit guaranty decision [Nothat the Act operates to the direct the state had given a quid pro quo ble State Bank v. Haskell, 219 U. S. benefit of the injured employee or

to the employer. But such is not 104, 31 SCt 186, 55 L. ed. 112, 32 his dependents does not of itself the situation with which we have to LRANS 1062, AnnCas1912A 487], we characterize the measure as one for

deal. As a matter of fact, the tax find that in this case the mutual private purposes only." Cunning- is imposed for the purpose of creat- benefits are direct. Granted that emham v. Northwestern Impr. Co., 44 ing a fund to indemnify certain in-ployers are compelled to insure, and Mont. 180, 215, 119 P 554.

(2) "If

dividuals and classes of individuals, that there is in that sense a taking, a tax raised aids in a scheme to pre

and actions at law are not abolished. they insure themselves and their emvent the vast economic waste which It is imposed on an extrahazardous ployes from loss, not others. The arises from personal injury litigation, employment for the presumed reason payment of the require premiums and if it be to the interest of the that such employment is pregnant exempts them from further liability. public to care for the victims of in- with possibility of injury to the em- The theoretical taking, no doubt, disdustrial accidents to the extent at ployee. The business of coal mining appears in practical experience. As least of making compensation sure is not unlawful or immoral; on the a matter of fact, every industrial and free from expense,

then such contrary, it is lawful and necessary. concern, except the very large ones tax is for the benefit of the public, But it is extremely dangerous and who insure themselves, have, for though it be at the same time bene- therefore subject to regulation. The some time, been forced by conditions, ficial to a class of citizens." Hunter tax cannot be likened to a special as- not by law, to carry accident inv. Colfax Cons. Coal Co., (Iowa) 154 sessment for local improvements, for demnity insurance. The difference is NW 1037, 1058.

the reason that such an assessment that a relatively small part of the [d] Similarity to guaranty of is primarily a lien upon the property sums thus paid actually reached inbank deposits.-"What amounts to a benefited, and also because the sup- jured workmen or their dependents." compulsory tax, akin in principle to posed justification for such assess- Hunter V. Colfax Cons. Coal Co., the taxation involved here, is upheld ment rests in the idea that the owner (Iowa) 154 NW 1037, 1059. by the Supreme Court of the United receives a direct, substantial return 92. Lewis, etc., County v. IndusStates in Noble State Bank V. Has- for such tax in the enhanced value trial Acc. Bd., (Mont.) 155 P 268; kell, 219 U. S. 104, 31 SCt 186, 55 L. ed. of his property. In

our judgment, Borgnis v. Falk Co., 147 Wis. 327, 133 112, 32 LRANS 1062, AnnCas1912 A the better reasoning leads to the con- NW 209, 37 LRANS 489. 487 (Guaranty of Deposit Act), and clusion that this impost is an em- [a] Legislative determination of followed in Assaria State Bank ployment tax upon the occupations of public character-(1) “A county subDolley, 219 U. S. 121, 31 SCt 189, 55 operating and working coal mines. Itject to the provisions of this act L. ed. 123, upholding compulsory is not at all necessary to justify the will, of necessity, be compelled to taxation of the banks concerned. imposition of such a tax that the levy taxes to meet the assessments The Jensen Case, the most recent business itself should particularly made upon it under section 40, and pronouncement by the Court of Ap- require police supervision, although, this cannot be done unless the purpeals of New York, Jensen v. South- as we have seen, extrahazardous en- pose to which the money so raised is ern Pac. Co., 215 N. Ý. 514, 109 NE terprises may demand restraint and to be devoted is a public purpose. 600, LRA1916 A 403, AnnCas1916B 276. regulation. Such a tax may be im- Section 11, art. 12. of the Constiturecognizes that the reasoning in the posed, either for regulation or rev- tion, provides: "Taxes shall be levied Noble (ase sustains what may

be enue, or for both. Property and oc- and collected by general laws and for called taxation features of workmen's cupation are alike legitimate objects public purposes only.' Whether a



from the taxes collected before they are distributed by the proper ministerial officers.93

[$ 19] G. Right to Trial by Jury. While the constitutionality of compensation acts has been upheld with practical unanimity against the contention that they invade the right to trial by jury," the decisions have rested on varied reasoning.” At the outset it may be noted that the provision of the United States constitution does not regulate the granting or denial of jury trial by the states, but refers to the administration of the federal law in the federal courts.96 Further, the elective acts do not deprive the employer of the right to a trial by jury in a case where he rejects the statute;97 and

the issue of fact as to whetner the parties have come under the operation of the act is one as to which a jury trial may be had.98 When it has been determined that the proceedings before the officer or board charged with the administration of the act are non judicial, it follows that in such proceedings no right to a jury trial exists which the act impairs ;99 and in this connection stress has been laid on the fact that under the statutes under consideration on appeal from the officer or board a jury trial may be had.' Under the voluntary or elective acts the parties by accepting the act are held to waive the right to a jury trial; hence there is no deprivation. With regard to the compul


particular purpose is 'public,' as that gence contributing to the injury com- | Co., 84 N. J. L. 85, 86 A 451 [aff 86 term is employed above, is not al- plained of, and can defeat the plain-N. J. L. 701, 91 A 1070]. ways easy of solution. The power of tiff only if the contribution is by Or.-Evanhoff v. State Industrial taxation is a legislative prerogative, self-infliction, or by negligence due to Acc. Commn., 78 Or. 503, 154 P 106. and therefore the determination of intoxication. Other contributions R. I.-Sayles v. Foley, 96 A 340. the question whether a particular will get to it only on a plea in miti- [a] Reasons for rule.-(1) "The purpose is or is not one which so gation. The jury will no longer con- clause in our (Iowa) state Constituintimately concerns the public as to sider whether the plaintiff should be tion providing that the right of trial render taxation permissible is for the defeated because the evidence shows by jury shall remain inviolate preLegislature in the first instance. 37 he assumed the risk of being in- sents a serious and important quesCyc. 720; State v. Nelson County, 1 jured as he was; will not have the tion. It is likewise an humorous obN. D. 88, 45 NW 33, 26_AmSR 609, 8 question whether there must be jection, because a trial by jury is LRA 283; 1 Cooley on Taxation, 182. failure to recover because the in- seldom asked or desired by the em

In sections 3 (e) and 6 (gg) of jury was due to the negligence of a ployer of labor. But waiving the this

act the Legislature has deter- fellow servant. It will not have the humorous phases, it is both importmined that the money to be contrib- question whether the servant has ant and necessary to at least briefly uted by a county to the fund for the proven that his injury is due to the consider the constitutional objecrelief of its injured employés is to negligence of the master, and will tions, But in doing this I shall not be devoted to a public purpose-an begin its inquiries by assuming the review the great decisions on conordinary and necessary county ex- master was thus negligent, and next stitutional law, but will be content pense."

Lewis, etc., County v. 1- consid whether the employer has by analyzing his statute. This dustrial Acc. Bd., (Mont.) 155 P 268, proven, notwithstanding this pre

sufficient because all agree that the 271. (2) "Again, it is said that the sumption, that he is wholly free constitutional provisions can

be act compels municipalities to levy from fault. It is self-evident none waived. They are forced on no one, taxes for other than public purposes, of this denies trial by jury, but if both agree to waive them. And since all workmen injured in the em- merely changes the rules under which this waiver can be by writing, or ploy of the public are to be compen- such trial shall proceed." Hunter V. verbally done, or done by common sated, and thus taxpayers will be de- Coifax Cons. Coal Co., (Iowa) 154 consent or acquiescence. The statprived of their property without due NW 1037, 1066.

ute is one of much verbiage and proprocess of law. We have not been 98. Young V. Duncan, 218 Mass. lixity of 51 lengthy sections, But quite able to appreciate the force of 346, 351, 106 NE 1 (where the court once and for all it can be stated, and this point, and we find no argument said of the Massachusetts act. St. correctly stated, that under this statupon it in the brief. We shall only | [1911] c 751: "Attack is made upon ute every employer and every emsay that the manner in which the Part I, § 5, on various grounds. It ployé can have his day in court, and state or the public shall treat its is urged that it deprives the plaintiff can have due process of law, and workmen is peculiarly a matter for of her constitutional right to a trial can have a jury trial if one or all the legislature to determine.

No one by jury. If that question properly are desired. No one of these conis compelled to work for the public, is presented and insisted upon, un- stitutional rights is denied." Hawand, if he does, he takes his situa- doubtedly an employee has a right to kins v. Bleakley, 220 Fed. 378, 380. tion on the terms which the public a trial by jury on the point whether (2) "While the right of trial by gives. We know of no reason why the employer" was in truth a sub- jury is guaranteed under our (Illithe public, acting by its lawmaking scriber under the act and whether nois] constitution, it is a right that power, may not provide that its em- notice had been given by the em- anyone may waive if he shall see fit, ployees shall have as part of their ployee at the time of the contract and by electing to come within the compensation certain indemnities in of hire of an election to rely upon provisions of the law an employer case of accidental injury in the pub- his

common law rights in cases or employee elects, in the first inlic service. When a law does so pro- where claim is asserted that such stance, to submit any dispute that vide, the raising of the funds to dis- notice had been given. The issue may arise to a board of arbitrators charge those indemnities becomes of fact whether the parties have

without the intervention of any plainly a proper public purpose." come under the operation of the act court or jury. It will be observed Borgnis v. Falk Co., 147 Wis. 327, may be tried to a jury. It is analo- that the act does not make the find362, 133 NW 209, 37 LRANS 489. gous to the issue whether an agree- ing and award of the board of ar

93. Porter v. Hopkins, 91 Oh. St. ment to arbitrate has been made. bitrators selected under its provi74, 109 NE 629.

Boyden v. Lamb, 152 Mass. 416, 25 sions final. Either party feeling ag94. Raymond v. Chicago, etc., R. NE 609. It may be assumed that a grieved at the award has the right Co., 233 Fed. 239 (Washington act); right of action for personal injuries to appeal to a court of record, where Shade v. Ash Grove Lime, etc., Co., at common law is property right. the matter is heard de novo, and 93 Kan, 257, 144 P 219; and cases in But the right of trial by jury re- where either party has the right to following notes.

specting it goes no farther in a case demand a trial by jury. It will thus Right to trial by jury generally see like the present than the right to be seen that even though the emJuries [24 Cyc 100).

have the question whether she had ployee should elect to come within 95, See cases infra this section. retained such a common law right the provisions of the act he is not

96. Raymond v. Chicago, etc., R. under the act determined by a jury”). wholly deprived of a trial by jury.” Co., 233 Fed. 239 (Washington act); 99. Middleton v. Texas Power, etc., Deibeikis v. Link--Belt Co., 261 nl. Hunter Colfax Cons. Coal Co., Co., (Tex.) 185 SW 556.

454, 466, 104 NE 211, AnnCas1915 A (Iowa) 154 NW 1037; State v. Moun- 1. Deibeikis v. Link-Belt Co., 261 241. (3) "Attack is next made upon tain Timber Co., 75 Wash. 581, 135 Ill. 454, 104 NE 211, AnnCas1915 A section 2 of the act upon the alleged P 645. See generally Juries [24 Cyc 241; Middleton v. Texas Power, etc., ground that it violates article 1, sec103). Co., (Tex.) 185 SW 556.

tion 7, of the New Jersey constitu(a) " 'Due process of law' does not 2. U. S.-Hawkins v. Bleakley, 220 tion, providing that the right of a necessarily require jury trial." Fed. 378 (sustaining Iowa act). trial by jury shall remain inviolate.' Cunningham V. Northwestern Impr. 111.- Deiheikis v. Link--Belt Co., 261 This contention totally misconceives Co., 44 Mont. 180, 217, 119 P 554. Ill. 454, 104 NE 211, AnnCas1915 A the proper construction and effect of 97. Hunter V. Colfax Cons. Coal 241.

the constitutional provision in quesCo., (Iowa) 154 NW 1037, 1066.

Iowa.--Hunter v. Colfax Cons. Coal tion. The language, with respect to [a] Effect of act-"It is true the Co., 154 NW 1037.

this mode of trial, is that it shall statute accomplishes giving the jury Ky.-Greene v. Caldwell, 170 Ky. remain inviolate, not that it shall be less to do than formerly, and changes 571, 186 SW 648.

unalterable. State V. De Lorenzo, 81 the character of its work. It can no Minn.--Mathison v. Minneapolis St. N. J. L. 613, 79 A 839. AnnCas1912D longer pass upon whether the plain- R. Co.. 126 Minn. 286, 148 NW 71, 329; Clayton v. Clark, 55 N. J. L. tiff should not be wholly defeated be- LRA1916D 412.

539, 26 A 795. It is therefore a privicause guilty of some degree of negli- N. J.-Sexton v. Newark Dist. Tel. lege which may be waived by either

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