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and a statute, elective as to both employers and employees, is not improper because the results of a failure to accept the act are not identical in the case of each.51 Further, a statute may, without violating any constitutional inhibition, be made elective as to private employers and compulsory as to municipal employers.52 An insurance act applicable to the state and the municipalities as well as to private employers may without being invalid provide that amounts paid to the state insurance fund by the state and its subdivisions are to be ascertained by a method different from that prescribed in the case of other employers.5 So the legislature may establish a measure of duty owing to a public employee different from that owing to a citizen who is not in the public service.5 Hazardous occupations. A statute is not invalid because its operation is restricted to certain occu

defenses of the employer is not made universal, but is limited to actions against employers who do not accept the compensation scheme of the act. The benefit to the employé results from and is wholly incidental to the depriving of the employer of what hitherto has been held to be his right. The employé is deprived of no prior existing right").

[a] Distinction not arbitrary. "The defenses of contributory negligence, assumption of risk, and negligence of a fellow servant were doubtless abrogated in the cases specified, and not abrogated in other cases, to induce an acceptance of the provisions of part 2 of the act. But, notwithstanding this purpose, the act permits any employer to place himself within either class of employers at his election, and to change from one to the other if he so desires; it also permits any employee to place himself within either class of employees at his election, and to change from one to the other if he so desires. Such legislation is not discriminatory and is not inhibited by the Constitution. Furthermore, if its validity rested upon the distinction between the two classes of employers and the distinction between the two classes of employees, could not say that such distinction is so fanciful and arbitrary, or so wanting in substance, that the legislature is prohibited from applying rules to one class which it does not apply to the other." Mathison V. Minneapolis St. R. Co., 126 Minn. 286, 294, 148 NW 71, LRA1916D 412.

we

51. Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1053.

"We are asked to hold that the statute contains an improper classification and an arbitrary differentiation because, as is claimed, if employer and employe both reject, the employe none the less takes the benefit of the act, and that where the master accepts and the employe rejects, the one who rejects gets as much as the one who accepts. We find this to be the situation: Section 5 provides that where both reject, the liability of the employer shall be the same as though the employe had not rejected. But this does not stand alone. For paragraph B of section 3 provides that if the employe rejects, he must suffer. in his suit for injury, that the employer may plead and rely upon 'any and all defenses, including those at common law, and the rules and defenses of contributory negligence, assumption of risk, and fellow servant,' with certain limitations, and section 10 is that compensation under the act is to be awarded only if both have done what amounts to acceptance of the act. Construing all together, it is found that the act does penalize the employe who rejects. That the penalties imposed upon the master and the servant may not be precisely the same is, as will presently be seen,

53

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pations designated as hazardous,55 or to a single industry of this character.56 And, although an act confined to extra hazardous occupations is subject to the construction that it allows workmen employed in such industries the benefit of the act when injured outside the line of their duties or when engaged in the business of the employer in a capacity not affected by its peculiar hazards, it is not for that reason void as class legislation or as depriving of the equal protection of the laws,57 although the act diverts the contributions acted from the industries to which it applies to the relief of injured workmen generally or to the use of the state at large.58

ex

Exception of particular classes. The exception from the operation of the act of certain classes of persons cannot be regarded as unjust discrimination where the acceptance of the act is elective,

not vital, and does not sustain the broad assertion made that an arbitrary difference is created as to the consequences of conduct which is, in substance, alike. It may be well said, in passing, that such differences as do exist are sustained by the quite generally accepted doctrine that the freedom to contract is only in theory enjoyed by the employe as fully as by his employer, and that the police power may be invoked to sustain some differentiations in favor of the employe, on the theory that this is a method of protecting him for the public good against the actual inequality between him and his employer." Hunter V. Cons. Coal Co., supra.

Colfax

52. Wood v. Detroit, (Mich.) 155 NW 592 (so holding since the imposition of the law on municipalities works no invasion of private rights, as the burden assumed by such corporations is distributed immediately and finally on the community, subject to be taxed to raise the funds necessary to compensate the injured workmen).

53. Porter v. Hopkins, 91 Oh. St. 74, 109 NE 629.

54. Lewis, etc., County v. State Industrial Acc. Bd., (Mont.) 155 P 268.

or

55. Shade v. Ash Grove Lime, etc., Co., 93 Kan. 257, 144 P 249; Lewis, etc., County v. State Industrial Acc. Bd., (Mont.) 155 P 268; Wheeler v. Contoocook Mills Corp., 77 N. H. 551, 94 A 265 (sustaining acts [1911] c 163, which is by § I restricted to workmen engaged in manual or mechanical labor in the following employments: "(a) The operation on steam or electric railroads of locomotives, engines, trains or cars, the construction, alteration, maintenance or repair of steam railroad tracks or road beds over which such locomotives, engines, trains or cars are or are to be operated. (b) Work in any shop, mill, factory or other place on, in connection with or in proximity to any hoisting apparatus, or any machinery propelled or operated by steam or other mechanical power in which shop, mill, factory or other place five or more persons are engaged in manual or mechanical labor. (c) The construction, operation, alteration or repair of wires or lines of wires, cables, switchboards or apparatus, charged with electric currents. (d) All work necessitating dangerous proximity to gunpowder, blasting powder, dynamite or any other explosives, where the same are used as instrumentalities of the industry, or to any steam boiler owned or operated by the employer, provided injury is occasioned by the explosion of any such boiler or explosive. (e) Work in or about any quarry, mine or foundry"); Ives v. South Buffalo R. Co.. 201 N. Y. 271, 94 NE 431, 34 LRANS 162, AnnCas 1912B 156 (holding that the workmen's compensation act [L. (1910)

c 674] art 14a, imposing an absolute liability on employers for injuries to employees engaged in specified occupations classified as dangerous, was not in violation of U. S. Const. Amendm. 14, guaranteeing equal protection of laws, on the theory that the classification was fanciful and arbitrary).

56. Cunningham v. Northwestern Impr. Co., 44 Mont. 180, 211, 119 P 554 (where the court said of L. [1909] c 67: "The fact that coal mining is alone selected from numerous other dangerous employments is not at all significant. Legislation of this character is in its infancy, and if it be found adequate to correct the evils growing out of the present system, it may gradually be extended to apply to all extrahazardous employments. So long as all persons operating coal mines are treated alike, no one of them has cause of complaint. The same may be said of coal miners").

57. State V. Clausen, 65 Wash. 156, 117 P 1101, 37 LRANS 466.

58. State v. Clausen, 65 Wash. 156, 197, 117 P 1101, 37 LRÁNS 466.

"To divert the money collected in this manner to a special use is one of the prerogatives of legislation. The right of the state to regulate any fact that its pursuit affects injuriform of industry arises from the ously the health, safety, morals, or welfare of the persons engaged in it, or is inimical in some form to some portion of the individuals of the community. It is not necessary that

it always affect injuriously the public at large. On the contrary, it may be regulated if it affects injuriously those engaged in it, or those brought in direct contact with it, even though its pursuit may benefit generally the people of the state at large. Nor is there any particular form which the regulation must take. The conduct of the business may be prohibited entirely in a particular place or in a particular manner; its pursuit may be restricted to certain hours of the day; it may be permitted to be conducted only in case protective devices are used; or it may be permitted in certain forms and a sum of money exacted from the individuals carrying it on for the purpose of recompensing those who suffer losses because thereof. So in this instance, if the legislature believed that to permit the pursuit of the industries named after the present manner of conducting them was generally for the public good in spite of the losses the method of pursuit entailed, there is no reason why it should not confine its regulations to compelling the owners and conductors of such industries to create a fund out of which the losses caused thereby should be made good. That legislation in this form is not class legislation, nor a denial to owners of property of the equal protection of the

since members of either the included or the excluded class may place themselves in the position of members of the other.59 But even apart from this consideration it is not to be regarded as improper classification that a compensation act excepts from its operation domestic servants,60 farm laborers, casual employees,62 gin laborers,63 persons who are employed otherwise than for the purpose of the employer's trade or business, employees engaged in work of an incidental character unconnected with the dangers necessarily involved laws, is well sustained by authority." State v. Clausen, supra.

59. Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1053 (where the court, in speaking of the exception of farm laborers, domestic servants, and casual employees said: "Assuming, for the time, that the act is not compulsory, then excluding these certain employés works discrimination neither against those excluded nor against those included. If it is at the option of those included whether they will take what the act gives, its operation upon them is due to consent on their part that it shall thus operate. All they need do to prevent discrimination against them, consisting of being included when others are not, is to reject the act. The moment they reject, they are, for all practical purposes, as much excluded as those who are excluded by the words of the statute. On the other hand, there is nothing in the act to prevent those excluded from making contracts by which they may have all the statute gives to those who accept it. There

is nothing in the statute which prevents a farmer and his laborer from entering into contract that if the laborer be injured in the course of the employment, the employer shall not make certain defenses, and that arbitrators, mutually agreed upon, shall award compensation, in accordance with the schedule contained in this act, and they may resort to the general arbitration statutes. If both those included and those excluded are each permitted to and can readily put themselves into the position of the others, there would seem to be, at most, a purely academic discrimination against either").

60. Cal-Western Indemn. Co. v. Pillsbury, 170 Cal. 686, 151 P 398.

Iowa. Hunter v. Colfax Cons. Coal
Co., 154 NW 1037.

Mass.-In re Opinion of Justices,
209 Mass. 607, 96 NE 308.
Mich.-Mackin V. Detroit-Timkin
Axle Co., 187 Mich. 8, 153 NW 49.

Minn.-Mathison v. Minneapolis St.
R. Co., 126 Minn. 286, 148 NW 71,
LRA1916D 412.

R. I.-Sayles v. Foley, 96 A 340. Tex.-Middleton v. Texas Power, etc., Co., 185 SW 556.

61. Cal.-Western Indemn. Co. v. Pillsbury, 170 Cal. 686, 151 P 398 (the California act considered in this opinion excluded any employee engaged in farm, dairy, agricultural, viticultural, or horticultural labor, or in stock or poultry raising).

Iowa.-Hunter v. Colfax Cons. Coal Co., 154 NW 1037.

Kan.-Shade v. Ash Grove Lime, etc., Co., 93 Kan. 257, 144 P 249.

Mass. In re Opinion of Justices, 209 Mass. 607, 96 NE 308.

Mich.-Mackin V. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49. Minn.-Mathison v. Minneapolis St. R. Co., 126 Minn. 286, 148 NW 71, LRA1916D 412.

R. I. Sayles v. Foley, 96 A 340. Tex.-Middleton v. Texas Power, etc., Co., 185 SW 556.

62. Ill.-Deibeikis V. Link-Belt Co., 261 I11. 454, 104 NE 211, AnnCas 1915A 241.

Iowa.-Hunter v. Colfax Cons. Coal Co., 154 NW 1037.

Mich.-Mackin V. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49. Minn. Mathison v. Minneapolis St. R. Co.. 126 Minn. 286, 148 NW 71, LRA1916D 412.

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R. I. Sayles v. Foley, 96 A 340. 63. Middleton V. Texas Power, etc., Co., (Tex.) 185 SW 556.

64. Deibeikis v. Link-Belt Co., 261 Ill. 454, 104 NE 211, AnnCas1915A 241.

65. Deibeikis v. Link-Belt Co., 261 Ill. 454, 104 NE 211, AnnCas1915A 241.

66. Sayles v. Foley, (R. I.) 96 A 340.

67. Mathison v. Minneapolis St. R. Co., 126 Minn. 286, 148 NW 71, LRA 1916D 412.

[a] Reason for exception.-"We think it is within the discretion of the legislature to place in a class by themselves those employers and those employees who, for the reason that they are engaged in interstate commerce, are subject to the laws which have been, or may be, passed by Congress. Within the domain of interstate and foreign commerce, the power of Congress is supreme; and the legislature may well refrain from including within the operation of the state laws those persons as to whom such laws are or may be rendered nugatory by the laws of the United States. Deibeikis v. Link-Belt Co., 261 Ill. 454, 104 NE 211, AnnCas 1915A 241. The suggestion that the present law does not exclude from its operation all who are engaged in interstate commerce, but only those who are engaged in such commerce by railroad, is sufficiently answered by the decisions affirming the validity of laws which apply only to those engaged in interstate commerce by railroad. Mondou v. New York, etc.. R. Co., 223 U. S. 1, 32 SCt 169, 56 L. ed. 327, 38 LRANS 44." Mathison v. Minneapolis St. R. Co., 126 Minn. 286, 293, 148 NW 71, LRA1916D 412. 68. Middleton V. Texas Power, etc., Co., (Tex.) 185 SW 556.

69. Deibeikis v. Link-Belt Co., 261 Ill. 454, 104 NE 211, AnnCas1915A 241.

70. Sayles v. Foley, (R. I.) 96 A 340.

71. Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 578, 35 SCt 167, 59 L. ed. 364 (where the court said of the Ohio act of 1911: "We are not prepared to say that this act of the legislature, in bringing within its terms all establishments having five or more employés, including the deprivation of the defense of contributory negligence where such establishments neglect to take the benefit of the law, and leaving the employers of less than five out of the act was classification of that arbitrary and unreasonable nature which justifies court in declaring this legislation unconstitutional"); Shade v. Ash Grove Lime, etc., Co., 93 Kan. 257, 144 P 249; State V. Creamer, 85 Oh. St. 349, 97 NE 602, 39 LRANS 694; Middleton v. Texas Power, etc., Co., (Tex.) 185 SW 556.

a

[a] Matter for legislative judgment.-The supreme court of the United States has said in speaking of the Ohio act of 1911: "This is not a statute which simply declares that the defense of contributory negligence shall be available to employers having less than five workmen, and unavailable to employers with five and more in their service. This provision is part of a general plan to raise funds to pay death and injury losses by assessing those establishments which employ five and more persons and which voluntarily take advantage of the law. Those remain

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ing out and who might come in because of the number employed are deprived of certain defenses which the law might abolish as to all if it was seen fit to do so. If a line is to be drawn in making such laws by the number employed, it may be that those very near the dividing line will be acting under practically the same conditions as those on the other side of it; but if the State has the right to pass police regulations based upon such differences, and this court has held that it has,-we must look to general results and practical divisions between those so large as to need regulation and those so small as not to require it in the legislative judgment. It is that judgment which, fairly and reasonably exercised. makes the law; not ours." Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 578, 35 SCt 167, 59 L. ed. 364.

72. Borgnis v. Falk Co., 147 Wis. 327, 355, 133 NW 209, 37 LRANS 489.

[a] Reason for classification."The minor classification by which the fellow-servant defense is preserved to all employers employing less than four employees in a common employment is also attacked as having no proper legal basis, but it seems to us that the grounds of classification here are more persuasive even than in the case just discussed. The man who is employed with one or two other men in a given employment, in all reasonable probaknows their characteristics bility well and will probably be with them a great part of the time. He will have ample opportunity to form a just judgment as to the risk of injury from their negligence which he will run if he works with them, and will be enabled to shape his own the man conduct accordingly; but who is one of a large number of men, many of whom he never sees, and some of these latter having duties to perform in distant places upon the due performance of which his own safety depends, has no opportunity to acquire any accurate knowledge of the characteristics of many of his fellow-workmen, and cannot intelligently decide what risk he runs at the hands of such distant and unknown employees. The difference in situation is not merely fanciful-it is real. In one case the employee knows or has the means of knowing what to expect from his colaborers, in the other case he has neither the knowledge nor the means of knowledge. Of course, there will be cases on the border line where the difference in situation will be very slight, or perhaps entirely nonexistent. There will probably be no practical difference between the situation of the man who is one of four or five employees in a given employment and the situation of the man who is one of three, but this does not militate against the legitimacy of the classification: this is a necessary defect in all cases of classification based upon numbers. The question is not whether there may be some on one side of the line whose situation is practically the same as that of some on the other side, but whether there is a 'distinction between the classes as classes, whether there are characteristics which, in a greater degree, persist through the one class than in the other which justify legal discrimination between them.' State v. Evans, 130 Wis. 381, 110 NW 241.”

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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."4

[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 law76 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," as for example the fact that certain employers may remain liable to a proceed

79

Borgnis v. Falk Co., 147 Wis. 327, 355, 133 NW 209, 37 LRANS 489.

73. Allen v. Millville, 87 N. J. L. 356, 95 A 130.

74. Deibeikis v. Link-Belt Co., 261 Ill. 454, 465, 104 NE 211, AnnCas1915A 241.

"It is contended that section 3 makes an improper classification, in that it deprives the employee of his common law remedies while the employer is permitted to retain them. This is clearly a misapprehension, as the proviso in that section enlarges the remedy of the employee, and correspondingly restricts that of the employer. By this proviso, in case an employee receives an injury as the result of the intentional omission of the employer to comply with statutory safety requirements, the employer, although having elected to come within the provisions of this act, cannot avail himself of anything in the act to affect his liability under such circumstances." Deibeikis V. Link-Belt Co., supra.

75. Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037; Shade v. Ash Grove Lime, etc., Co., 93 Kan. 257, 144 P 249 (L. [1911] c 218, as amended by L. [1913] c 216); Mathison v. Minneapolis St. R. Co., 126 Minn. 286, 148 NW 71. LRA1916D 412; Memphis Cotton Oil Co. v. Tolbert, (Tex. Civ. A.) 171 SW 309.

76. Stoll v. Pacific Coast SS. Co., 205 Fed. 169 (Washington act); State V. Mountain Timber Co., 75 Wash. 581, 135 P 645; State v. Clausen, 65 Wash. 156, 117 P 1101, 37 LRÁNS 466. See Northern Pac. R. Co. v. Meese, 239 U S. 614, 36 SCt 223 [rev 211 Fed. 254, 127 CCA 622 (rev 206 Fed. 222)1 (holding that the equal protection of the laws is not denied by construing the Washington Workmen's Compensation Act [L. (1911) c 74], as taking away any existing right under Remington & B. Code §§ 183, 194, to maintain an action for the wrongful death an employee, not only as against the employer, but as against any third person by whose negligence the death may have been caused, where the employee sustained the fatal injury while engaged about his ordinary duties at his employer's plant); 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

of

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.83

[§ 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; 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

84

[§ 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.8 They are not, however, for this reason in violation of constitutional provisions designed to secure equal and uniform taxation for public purposes,87 or which prohibit taxation for private purposes, ,88 since the charge is made as inci

clay mining in two counties of the state).

77. Western Indemn. Co. v. Pillsbury, 170 Cal. 686, 151 P 398.

78. Cunningham v. Northwestern Impr. Co., 44 Mont. 180, 221, 119 P 554 (where the court said: "After full compliance with the terms of the Act, the employer is not exonerated from liability. He may still be sued and compelled to pay damages in a proper case. No provision is made for reimbursement in whole or in part. The injured employees of one operator may all resort to the indemnity fund, while those of another may elect to appeal to the courts. The result is that the employer against whom an action is successfully prosecuted is compelled to pay twice. He has fully paid his assessments under the Act, and is also obliged to pay damages. This fact is so palpable as to be needless of discussion. The Act in this regard is not only inequitable and unjust, but clearly illegal and void, as not affording to such employer the equal protection of the laws").

79. Walker v. Clyde SS. Co., 215 N. Y. 529, 109 NE 604, AnnCas1916B 87.

80. Walker v. Clyde SS. Co., 215 N. Y. 529, 532, 109 NE 604, AnnCas 1916B 87. But see State v. Daggett, 87 Wash. 253, 151 P 648, LRA 1916A 446 (where the Washington act was held not to apply to the owners of boats engaged in intra-state commerce on Puget Sound, but the court said that, if it was held so to apply and the owners were still left subject to an action in admiralty by an injured employee, it might well be doubted whether it would not offend against the provision of the fourteenth amendment to the constitution of the United States, guaranteeing the equal protection of the laws).

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case, and not from any attempt at discrimination on the part of the Legislature. All in the same case are treated alike. Employers in the situation of the appellant are subjected to two remedies now, precisely as they were before the passage of the act. A new remedy has been substituted for the common-law remedy, from which the employer is granted exemption." Walker v. Clyde SS. Co., supra.

81. Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037.

82. State v. Mountain Timber Co., 75 Wash. 581, 135 P 645; State v. Clausen, 65 Wash. 156, 117 P 1101, 37 LRANS 466.

83. Gregutis V. Waclark Wire Works, 86 N. J. L. 610, 92 A 354.

84. Mathison v. Minneapolis St. R. Co., 126 Minn. 286, 148 NW 71, LRA 1916D 412.

85. Mathison v. Minneapolis St. R. Co., 126 Minn. 286, 148 NW 71, LRA 1916D 412.

86. State v. Clausen, 65 Wash. 156, 117 P 1101, 37 LRANS 466.

87. Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037; State v. Clausen. 65 Wash. 156, 117 P 1101, 37 LRANS 466.

88. Stoll v. Pacific Coast SS. Co., 205 Fed. 169 (sustaining Washington act); Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037; Cunningham v. Northwestern Impr. Co., 44 Mont. 180, 119 P 554; State v. Clausen, 65 Wash. 156, 117 P 1101, 37 LRANS 466 and note.

[a] Determination by legislature. "The legislature, in carrying for ward the policy of the state, directed by a clearly defined, dominant public opinion, was warranted in declaring, by implication, that the purpose for which the tax is imposed is a public one. This being so, the courts have no power to declare otherwise." Cunningham v. Northwestern Impr. Co.. 44 Mont. 180, 215, 119 P 554.

"It is argued that the act purports to grant exemption from fur- [b] Reason for rule.-"An analysis ther liability to those who comply of these decisions [Assaria State with it, and that as such exemption Bank v. Dolley, 219 U. S. 121, 31 SCt is not effectual in the case of em- 189, 55 L. ed. 123; Noble State Bank ployers whose property m be prov. Haskell, 219 U. S. 104, 575, 31 SCt ceeded against in admiralty, it is as 186, 55 L. ed. 112, 32 LRANS 1062, to them a denial of the equal pro- AnnCas1912A 487, 575; Jensen V. tection of the laws. The exemption, Southern Pac. Co., 215 N. Y. 514, 109 however, is from suits at common NE 600, LRA1916A 403, AnnCas1916B law, of which all employers comply-276; State v. Clausen, 65 Wash. 156, ing with the act equally have the benefit. If another remedy remain, it results from the nature of the

117 P 1101, 37 LRANS 466] demonstrates they proceed on the reasoning that the statute does not impose

90

89.

Nor is

order to pay claims for compensation."
such an act invalid as in contravention of a con-
stitutional provision that no tax shall be levied
except in pursuance of law and that every law im-
posing a tax shall state distinctly the object of
the same to which only it shall be applied, for the
reason that it provides a certain charge or debt
which is to be paid by the state and governmental
subdivisions, the amount of which is to be deducted

Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037; Cunningham v. Northwestern Impr. Co., 44 Mont. 180, 212, 119 P 554; State v. Clausen, 65 Wash. 156, 117 P 1101, 37 LRANS 466.

dent to an exercise of the police power,s
89 and if
to be regarded as a tax is to be classified as a
license tax. Further, with reference to the right
to exercise the police power, the benefit to the em-
ployer may be regarded as a compensation for the
burden he is compelled to assume.91 A compensa-
tion act compulsory as to municipalities is not void.
for the reason that it will compel the municipality
to levy a tax for other than a public purpose in
on the employer a liability to pay | compensation acts, and the court says
an employe or his dependents any that a compulsory scheme of insur-
sum of money whatsoever, but does ance to secure injured workmen in
require he shall secure to all his hazardous employments, and their de-
employes compensation guaranteed pendents, from becoming objects of
by insurance-require that he do this charity 'certainly promotes the public
under regulation by the state on pen- welfare as directly as does an insur-
alty for failure to comply, a penalty ance of bank depositors from loss.'"
imposed on the theory that he com- Hunter V. Colfax Cons. Coal Co.,
mits an unlawful act when he does (Iowa) 154 NW 1037, 1056.
that or omits that through which the
employes and their dependents will
suffer, and, so suffering, inflict an
injury upon the state. They hold
that Compensation Acts do not en-
force individual liability growing out
of contract, or liability for a tor-
tious act or omission; that their
basic aim is social justice; that they
exercise a highly intelligent selfish-
ness in recognizing there is no ulti-
mate advantage in obtaining products
at too low rates on the fictitious
basis that such rates include all the
cost of the product, when, in truth,
the selling price is below cost be-
cause part of the cost is thrown
upon the most helpless of the peo-
ple, in the first instance, which 'sav-
ing,' and more, is ultimately thrown
upon the general community, in ex-
pense of litigation over accidents, of
caring for pauperized victims of the
accidents, and in the indefinable but
none the less real and serious dam-
age to the state growing out of dis-
tress and pauperism thus permitted
to exist. We so reach the satisfac-
tory conclusion that the only inquiry
we need address ourselves to
whether the so-called taxation in-
volved in the maintenance of insur-
ance be, if a tax, or though a tax,
a tax for a public purpose, sustained
by the police power; and we think
the cases answer in the affirmative,
and that independent thought_sus-
tains them." Hunter v. Colfax Cons.
Coal Co., (Iowa) 154 NW 1037, 1056.

is

[c] Effect of direct benefit to employee or dependents.-(1) "The fact that the Act operates to the direct benefit of the injured employee or his dependents does not of itself characterize the measure as one for private purposes only." Cunningham v. Northwestern Impr. Co., 44 Mont. 180, 215, 119 P 554. (2) "If a tax raised aids in a scheme to prevent the vast economic waste which arises from personal injury litigation, and if it be to the interest of the public to care for the victims of industrial accidents to the extent at least of making compensation sure and free from expense, then such tax is for the benefit of the public, though it be at the same time beneficial to a class of citizens." Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1058.

[d] Similarity to guaranty of bank deposits.-"What amounts to a compulsory tax, akin in principle to the taxation involved here, is upheld by the Supreme Court of the United States in Noble State Bank v. Haskell, 219 U. S. 104, 31 SCt 186, 55 L. ed. 112, 32 LRANS 1062, AnnCas1912A 487 (Guaranty of Deposit Act), and followed in Assaria State Bank v. Dolley, 219 U. S. 121, 31 SCt 189, 55 L. ed. 123, upholding compulsory taxation of the banks concerned. The Jensen Case, the most recent pronouncement by the Court of Appeals of New York, Jensen v. Southern Pac. Co., 215 N. Y. 514, 109 NE 600, LRA1916A 403, AnnCas1916B 276. recognizes that the reasoning in the Noble Case sustains what may be called taxation features of workmen's

"The exercise of the police power is properly and necessarily supplemented by the taxing power of the commonwealth, in order to carry the general plan into practical effect. Or, perhaps, it is more accurate to say that the power to tax for the purposes of the Act is necessarily included in the police power. It will readily be seen that, unless the power to impose taxes upon the extrahazardous industry can be invoked to create an insurance fund, the Act is nugatory." Cunningham v. Northwestern Impr. Co., supra.

90, Cunningham v. Northwestern
Impr. Co., 44 Mont. 180, 119 P 554;
State v. Clausen, 65 Wash. 156, 117 P
1101, 37 LRANS 466.

[a] Nature of tax.-(1) "Beyond
doubt there can be no lawful tax
which is not laid for a public pur-
pose. What is a public purpose?
Having determined that the general
design of the Act may be upheld as
a proper exercise of the police power
-that is, as being a scheme which
may result to the public welfare-we
are justified, perhaps, in accepting
as a corollary the conclusion that
the tax imposed is for a public pur-
pose. Again, if the Act abolished
actions and causes of action for per-
sonal injuries and death, the tax
might be justified on the theory that
the state had given a quid pro quo
to the employer. But such is not
the situation with which we have to
deal. As a matter of fact, the tax
is imposed for the purpose of creat-
ing a fund to indemnify certain in-
dividuals and classes of individuals,
and actions at law are not abolished.
It is imposed on an extrahazardous
employment for the presumed reason
that such employment is pregnant
with possibility of injury to the em-
ployee. The business of coal mining
is not unlawful or immoral; on the
contrary, it is lawful and necessary.
But it is extremely dangerous and
therefore subject to regulation.
tax cannot be likened to a special as-
sessment for local improvements, for
the reason that such an assessment
is primarily a lien upon the property
benefited, and also because the sup-
posed justification for such assess-
ment rests in the idea that the owner
receives a direct, substantial return
for such tax in the enhanced value
of his property. In our judgment,
the better reasoning leads to the con-
clusion that this impost is an em-
ployment tax upon the occupations of
operating and working coal mines. It
is not at all necessary to justify the
imposition of such a tax that the
business itself should particularly
require police supervision, although,
as we have seen, extrahazardous en-
terprises may demand restraint and
regulation. Such a tax may be im-
posed, either for regulation or rev-
enue, or for both.
Property and oc-
cupation are alike legitimate objects

The

of taxation." Cunningham v. North-
western Impr. Co., 44 Mont. 180, 212.
119 P 554. (2) "As the charge laid
on the persons engaged in the indus-
tries named in the act is a pecuniary
burden imposed by public authority,
it partakes of the nature of a tax,
and in the language of a distin-
guished judge discussing a similar
question, for many purposes might
be so spoken of without harm.' But
it is manifest that it is not a tax in
the sense the word is used in the sec-
tions of the constitution to which
reference is here made. No accession
to the public revenue, general or local,
is authorized or aimed at. The pur-
pose of the exaction is entirely dif-
ferent. It is to be used, not to meet
the current expenses of government,
but to recompense employees of the
industries on whom the burden is im-
posed for injuries received by them
while engaged in the pursuit of their
employment. It is the consideration
which the owners of the industries
pay for the privilege of carrying
them on. It is, therefore, in the
nature of a license tax, and can be
justified on the principle of law that
justifies the imposition and collec-
tion of license taxes generally.
this state, such taxes may be im-
posed, either as a regulation or for
the purposes of revenue, the only
limitation upon the power being that
such taxes when imposed on useful
trades and industries shall not be
unreasonable, and if a class of
trades or industries is selected from
the whole, and the tax imposed upon
the class selected alone rather than
upon the whole, that there be some
reasonable ground for making the
distinction." State v. Clausen, 65
Wash. 156, 203, 117 P 1101, 37 LRANS
466.

In

91. Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037.

[a] "Applying the doctrine of the bank deposit guaranty decision [Noble State Bank v. Haskell, 219 U. S. 104, 31 SCt 186, 55 L. ed. 112, 32 LRANS 1062, AnnCas1912A 487], we find that in this case the mutual benefits are direct. Granted that employers are compelled to insure, and that there is in that sense a taking, they insure themselves and their employes from loss, not others. The payment of the required premiums exempts them from further liability. The theoretical taking, no doubt, disappears in practical experience. As

a

matter of fact, every industrial concern, except the very large ones who insure themselves, have, for some time, been forced by conditions, not by law, to carry accident indemnity insurance. The difference is that a relatively small part of the sums thus paid actually reached injured workmen or their dependents." Hunter V. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1059.

92. Lewis, etc., County v. Industrial Acc. Bd., (Mont.) 155 P 268; Borgnis v. Falk Co., 147 Wis. 327, 133 NW 209, 37 LRANS 489.

[a] Legislative determination of public character (1) "A county subject to the provisions of this act will, of necessity, be compelled to levy taxes to meet the assessments made upon it under section 40, and this cannot be done unless the purpose to which the money so raised is to be devoted is a public purpose. Section 11, art. 12. of the Constitution, provides: Taxes shall be levied and collected by general laws and for public purposes only.' Whether a

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

94

[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,9 the decisions have rested on varied reasoning.9 95 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

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the issue of fact as to whether 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 nonjudicial, 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.1 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.2 With regard to the compulCo., 84 N. J. L. 85, 86 A 451 [aff 86 N. J. L. 701, 91 A 1070].

gence contributing to the injury complained of, and can defeat the plaintiff only if the contribution is by self-infliction, or by negligence due to intoxication. Other contributions will get to it only on a plea in mitigation. The jury will no longer consider whether the plaintiff should be defeated because the evidence shows he assumed the risk of being injured as he was; will not have the question whether there must be a failure to recover because the injury was due to the negligence of a fellow servant. It will not have the

proven that his injury is due to the negligence of the master, and will begin its inquiries by assuming the master was thus negligent, and next consider whether the employer has proven, notwithstanding this presumption, that he is wholly free from fault. It is self-evident none of this denies trial by jury, but merely changes the rules under which such trial shall proceed." Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1066.

particular purpose is 'public,' as that term is employed above, is not always easy of solution. The power of taxation is a legislative prerogative, and therefore the determination of the question whether a particular purpose is or is not one which so intimately concerns the public as to render taxation permissible is for the Legislature in the first instance. 37 Cyc. 720; State v. Nelson County, 1 N. D. 88, 45 NW 33, 26 AmSR 609, 8 LRA 283; 1 Cooley on Taxation, 182. In sections 3 (e) and 6 (gg) of this act the Legislature has determined that the money to be contrib-question whether the servant has uted by a county to the fund for the relief of its injured employés is to be devoted to a public purpose--an ordinary and necessary county expense." Lewis, etc., County v. Industrial Acc. Bd., (Mont.) 155 P 268, 271. (2) "Again, it is said that the act compels municipalities to levy taxes for other than public purposes, since all workmen injured in the employ of the public are to be compensated, and thus taxpayers will be deprived of their property without due process of law. We have not been quite able to appreciate the force of this point, and we find no argument upon it in the brief. We shall only say that the manner in which the state or the public shall treat its workmen is peculiarly a matter for the legislature to determine. No one is compelled to work for the public, and, if he does, he takes his situation on the terms which the public gives. We know of no reason why the public, acting by its lawmaking power, may not provide that its employees shall have as part of their compensation certain indemnities in case of accidental injury in the public service. When a law does so provide, the raising of the funds to discharge those indemnities becomes plainly a proper public purpose." Borgnis v. Falk Co., 147 Wis. 327, 362, 133 NW 209, 37 LRANS 489.

93. Porter v. Hopkins, 91 Oh. St. 74, 109 NE 629.

94. Raymond v. Chicago, etc., R. Co., 233 Fed. 239 (Washington act); Shade v. Ash Grove Lime, etc., Co., 93 Kan. 257, 144 P 249; and cases in following notes.

Right to trial by jury generally see Juries [24 Cyc 1001.

95. See cases infra this section. 96. Raymond v. Chicago, etc., R. Co., 233 Fed. 239 (Washington act); Hunter V. Colfax Cons. Coal Co., (Iowa) 154 NW 1037; State v. Mountain Timber Co., 75 Wash. 581, 135 P 645. See generally Juries [24 Cyc 103].

[a] "'Due process of law' does not necessarily require a jury trial." Cunningham v. Northwestern Impr. Co.. 44 Mont. 180, 217, 119 P 554.

97. Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1066.

[a] Effect of act.-"It is true the statute accomplishes giving the jury less to do than formerly, and changes the character of its work. It can no longer pass upon whether the plaintiff should not be wholly defeated because guilty of some degree of negli

98. Young v. Duncan, 218 Mass. 346, 351, 106 NE 1 (where the court said of the Massachusetts act, St. [1911] c 751: "Attack is made upon Part I, § 5, on various grounds. It is urged that it deprives the plaintiff of her constitutional right to a trial by jury. If that question properly is presented and insisted upon, undoubtedly an employee has a right to a trial by jury on the point whether the employer was in truth a subscriber under the act and whether notice had been given by the employee at the time of the contract of hire of an election to rely upon his common law rights in cases where claim is asserted that such notice had been given. The issue of fact whether the parties have come under the operation of the act may be tried to a jury. It is analogous to the issue whether an agreement to arbitrate has been made. Boyden v. Lamb, 152 Mass. 416, 25 NE 609. It may be assumed that a right of action for personal injuries at common law is property right. But the right of trial by jury respecting it goes no farther in a case like the present than the right to have the question whether she had retained such a common law right under the act determined by a jury").

99. Middleton v. Texas Power, etc., Co., (Tex.) 185 SW 556.

1. Deibeikis v. Link-Belt Co., 261 Ill. 454, 104 NE 211, AnnCas1915A 241; Middleton v. Texas Power, etc., Co., (Tex.) 185 SW 556.

2. U. S.-Hawkins v. Bleakley, 220 Fed. 378 (sustaining Iowa act).

Ill-Deibeikis v. Link-Belt Co., 261 TII. 454, 104 NE 211, AnnCas1915A 241.

Iowa.-Hunter v. Colfax Cons. Coal Co., 154 NW 1037.

Ky. Greene v. Caldwell, 170 Ky. 571, 186 SW 648.

Minn. Mathison v. Minneapolis St. R. Co.. 126 Minn. 286, 148 NW 71, LRA1916D 412.

N. J. Sexton v. Newark Dist. Tel.

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Or.-Evanhoff v. State Industrial Acc. Commn., 78 Or. 503, 154 P 106. R. I.-Sayles v. Foley, 96 A 340. [a] Reasons for rule.-(1) "The clause in our [Iowa] state Constitution providing that the right of trial by jury shall remain inviolate presents a serious and important question. It is likewise an humorous objection, because a trial by jury is seldom asked or desired by the employer of labor. But waiving the humorous phases, it is both important and necessary to at least briefly consider the constitutional objections. But in doing this I shall not review the great decisions on constitutional law, but will be content by analyzing this statute. This is sufficient because all agree that the constitutional provisions can be waived. They are forced on no one, if both agree to waive them. And this waiver can be by writing, or verbally done, or done by common consent or acquiescence. The statute is one of much verbiage and prolixity of 51 lengthy sections. But once and for all it can be stated, and correctly stated, that under this statute every employer and every employé can have his day in court, and can have due process of law, and can have a jury trial if one or all are desired. No one of these constitutional rights is denied." Hawkins v. Bleakley, 220 Fed. 378, 380. (2) "While the right of trial by jury is guaranteed under our [Illinois] constitution, it is a right that anyone may waive if he shall see fit, and by electing to come within the provisions of the law an employer or employee elects, in the first instance, to submit any dispute that may arise to a board of arbitrators without the intervention of any court or jury. It will be observed that the act does not make the finding and award of the board of arbitrators selected under its provisions final. Either party feeling aggrieved at the award has the right to appeal to a court of record, where the matter is heard de novo, and where either party has the right to demand a trial by jury. It will thus be seen that even though the employee should elect to come within the provisions of the act he is not wholly deprived of a trial by jury." Deibeikis v. Link-Belt Co., 261 Ill. 454, 466. 104 NE 211, AnnCas1915A 241. (3) "Attack is next made upon section 2 of the act upon the alleged ground that it violates article 1, section 7, of the New Jersey constitution, providing that 'the right of a trial by jury shall remain inviolate.' This contention totally misconceives the proper construction and effect of the constitutional provision in question. The language, with respect to this mode of trial, is that it shall remain inviolate, not that it shall be unalterable. State v. De Lorenzo, 81 N. J. L. 613, 79 A 839, AnnCas1912D 329; Clayton v. Clark, 55 N. J. L. 539, 26 A 795. It is therefore a privilege which may be waived by either

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