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sory statutes it has been held that the legislature not impair the obligation of contracts of employhas, correlative to the power to compel owners or ment entered into after it takes effect, or after operatives engaged in hazardous industries to pay it has been enacted though not yet in effect. Nor a fixed sum into a fund to be used in compensating does such a statute in so far as it affects the right the employees therein for injuries received by them, of action for a subsequent injury impair the oblithe power to require the employees of such indus- gation of existing contracts;' hence it may modify tries to accept a given sum for any injury they or abolish common-law defenses to an action for may receive while so engaged. Again it has been such an injury. Further, the optional acts do held that the right to a jury trial is guaranteed not affect the obligation of contracts, since the only as incident to causes of action recognized by parties by acceptance or rejection of the statute law, and that when the cause of action is removed may be held to have made a new contract. In by statute the incidental right terminates with it.*

any event

a compensation act, if otherwise a [020] H. Impairment of Obligation of Con- proper exercise of the police power, may intertracts. It is obvious that a compensation act does fere with existing contracts.10 party and not an absolute right which I then, if consistent, hold the idea of But see State v. Creamer, 85 Oh. St. is not the subject of such a waiver. | industrial insurance to be beyond the 349, 97 NE 602, 39 LRANS 694 (holdThe practice of waiving a trial by limit of the police power." State v. ing that Oh. L. 102, p. 524, creating jury in civil cases or proceedings in Mountain Timber Co., 75 Wash. 581, a state insurance fund for the benefit this state is of such common occur- 583, 135 P 645.

of inj ed employees and the derence as to attract no attention; and 4. Cunningham Northwestern pendents of killed employees, cannot it has never been doubted in this Impr. Co., 44 Mont. 180, 119 P 554; affect contracts in existence and unstate that such a waiver could be State v. Clausen, 65 Wash. 156, 210, expired when

the act is put into made. Thus it is stated by Mr. Jus- 117 P 1101, 37 LRANS 466. See also operation by the employer). tice Van Syckel in Joy, etc., Co. v. Stoll v. Pacific Coast SS. Co., 205 Fed. [a] "Certainly the law does not Blum, 55 N. J. L. 518, 520, 26 A 861, 169 (where it is held that the Wash- affect the service to be rendered or 'the right of trial by jury may be ington statute is not invalid for the the wages to be paid in any way. waived." No distinction can be per- reason that it "deprives the plaintiff Neither the obligation of the workceived between a waiver of this right of the right to trial by jury, guar- man to faithfully do his work, nor by the parties after commencement anteed by section 21, article i, Con- the obligation of the employer to of a suit and as incident to its prose- stitution of the state of Washington, faithfully pay the stipulated' wage, cution and general waiver as and the seventh amendment to the nor the remedy in case of breach by result of a contract made prior to the Constitution of the United States"). | either party, is in any way affected. commencement of legal proceedings, "The constitution does not under- | What, then, is affected? Plainly no or, indeed, to the accrual of a possi- take to define what shall constitute provision of the contract. But, if the ble cause of action. Nor can any a cause of action, no to prohibit the employer elects to come under the distinction be perceived between legislature from so doing. The right law, the employee must choose waiver of the right in the form of an of trial by jury accorded by the con- whether he will come under it or not, express contract between the parties stitution, as applicable to civil cases, and if he does not wish to come and a waiver which may arise as a is incident only to causes of action under it he may

run the risk of result of a legal presumption under recognized by law. The act here in being discharged, or if he wishes to legislative authority." Sexton question takes away the cause of ac- retain his employment he may feel Newark Dist. Tel. Co., 84 N, J. L. 85, tion, on the one hand, and the ground compelled to elect to come under the 101, 86 A 451 [aff 86 N. J. L. 701, 91 of defense, on the other; and merges law and thus lose his right to bring A 1070).

both in a statutory indemnity, fixed an action at law in case of a per3. State v. Clausen, 65 Wash. 156, and certain. If


power to do sonal injury sustained in the employ117 P 1101, 37 LRANS 466.

away with a cause of action in any ment. But all this does not in any [a] Police power-"When we say case exists at all, in the exercise of way affect the contract of employthat we sustain a law by reference to the police power of the state, then ment; that remains absolutely unimthe police power that might other- the right of trial by jury is there- paired in all its terms." Borgnis v. wise be in conflict with some pro- after no longer involved in such Falk Co., 147 Wis. 327, 366, 133 NW vision of the constitution, it would cases. The right of jury trial being 209, 37 LRANS 489. seem that every incident to that law, incidental to the right of action, to [b] “The right to bring an action as well as all methods necessary to destroy the one is to leave the other in the future in case of a possible make it effective, are likewise ex- nothing upon which to operate." tort not yet committed, is no part of empted from the proscriptions and State v. Clausen, supra.

the contract of employment. That limitations of the constitution. The [a] Claim against indemnity fund. right arises out of the relation of legislature has adopted the idea of - The right of trial by jury, which employer and employe, and is subject industrial insurance, and seen fit to is secured and protected by the Con- to change by the lawmaking power make that idea a workable one by stitution, refers to the trial of cases, at any time. The employer does not putting its execution, as well as its actions, or suits at law (see Koppi- contract that it shall remain intact. administrative features, in the hands kus v. Capitol Comrs., 16 Cal. 248), There is no vested right in a mere of a commission. It has abolished and has

reference to claims remedy for a hypothetical wrong. At rights of actions and defenses and in against an indemnity fund, such as most, the law cannot be said to do certain cases denied the right of trial are provided for by this Act, or de- more than change the remedy for a by jury. The legislature has said to mands by the state auditor for occu- tort which is yet to happen, and may the man whose business is a danger- pation taxes. There is not anything never happen. The legislature may ous one and the operation of which in the Constitution guaranteeing a change the remedies for torts yet to may bring injury to an employee, right of trial by jury in case of de- be committed at any time, and such that he cannot do business without mand for a license or occupation tax. changes cannot be said to make any waiving certain rights and privileges | The adjustment of claims under the change in mere contracts of service heretofore enjoyed, and it has said Act is an administrative function and existing between the parties." Troth to the employee that, inasmuch as not a judicial proceeding, and it is v. Millville Bottle Works, 86 N. J. L. he may become dependent upon the only in certain cases falling under 558, 560, 91 A 1031 [quot Borgnis v. state, he must give up his personal the latter designation that trial by Falk Co., 147 Wis. 327, 133 NW 209, right of contract when about to en- jury is guaranteed by the Constitu- 37 LRANS 489]. gage in a hazardous occupation and tion." Cunningham v. Northwestern 8. Sexton v. Newark Dist. Tel. Co., contract with reference to the law. Impr. Co., 44 Mont. 180, 217, 119 P 84 N. J. L. 85, 86 A, 451 [aff 86 These demands are the fundamentals 554.

N. J. L. 701, 91 A 1070]. of our industrial insurance law.

If 5. Sexton v. Newark Dist. Tel. Co., 9. Hunter V. Colfax Cons. Coal the law is not administered as 84 N. J. L. 85, 86 A 451 (aff 86 Co., (Iowa) 154 NW 1037, 1048; Troth therein provided, it is not likely that N. J. L. 701, 91 A 1070].

V. Millville Bottle Works, 98 A 435 a compulsory law such as it is could 6. Sexton V. Newark Dist. Tel. [aff 86 N. J. L. 558, 91 A 1031]. ever be adequately administered; for, Co., 84 N. J. L. 85, 86 A 451 [aff 86 "If acceptance of the act is elecaside from its humane purpose, it N. J. L. 701, 91 A 1070].

tive, then, as will be seen later, the was adopted in order that the delay 7. State Meeker County Dist. statute cannot work an impairment. and frequent injustice incident to Ct., 128 Minn, 221, 150 NW 623; Troth Whenever liberty is left on whether civil trials might be avoided. "The v. Millville Bottle Works, 86 N. J. L. to contract at all (which liberty is remedy of the workman has been 558, 91 A 1031; Borgnis v. Falk Co., assumed for present purposes), then uncertain, slow and inadequate. In- 147 Wis. 327, 133 NW 209, 37 LRANS a new contract or a change in conjuries in such works, formerly occa- 489. Compare Hunter v. Colfax Cons. tract, made by contract, cannot be sional, have become frequent and in- Coal Co., (Iowa) 154 NW 1037, 1048 objected to as an invalid impairment. evitable.' Laws 1911, page 345. To (where, in considering Acts 35 Gen. Of course, parties sui juris and at uphold the law in the sense of sus- Assembly c 147, the court said: “The liberty can make new contracts that taining the idea of industrial insur- statute at bar has not a suggestion modify or obviate existing ones withance, and to deny the right of exe- that existing contracts

within out running counter to any consticuting it without the intervention of its contemplation. On the contrary, tutional inhibition." Hunter V. Colthe courts, would throw us back on it provides expressly that existing fax Cons, Coal Co., supra. the original ground and we should conditions are not to be affected"). 10.

Hunter v. Colfax Cons. Coal




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[121] I. Impairment of Right to Contract. garnishment, or in any way be held for debt.17 The elective compensation acts are held to work [V22] J. Delegation of Judicial Powers and no impairment of the right to contract, either Deprivation of Courts of Jurisdiction. The creagenerally," or on the part of the employee12 or tion by the compensation acts of boards or comthe employer.' In any event the right of the missions having authority to pass on claims for legislature to impair the right to contract, in the injuries and to make awards does not constitute

18 exercise of the police power, is recognized.14 Hence an unwarranted delegation of judicial powers, even a compulsory compensation act may be sus- the decisions being based on the various grounds tained on the theory that the right is subject to that such boards are administrative agencies, alreasonable restrictions for the welfare of the though exercising quasi judicial powers, 19 that they state; ;15 and on the same theory restrictions on do not have the final authority to decide and to the right to contract intended to prevent evasion render enforceable judgments,20 or that under the

16 or circumvention of the statute are sustained, elective statutes they are in effect boards of arbias are provisions that no payment under the act tration by agreement. 21 Notwithstanding a conshall be assignable or subject to attachment or stitutional provision vesting the judicial power in Co., (Iowa) 154 NW 1037; State v. islature may make provision against | amount of

mined and the Seattle, 73 Wash. 396, 132 P 45. having the legislative intent as amount of wages paid, and providing

Obligation of contract generally as such act thwarted. To put the ban a summary method for the disposisubject to police power see Consti- upon such influences interferes with tion of claims filed under the law, tutional Law [8 Cyc 997].

right of contract, but simply was not unconstitutional as confer11. Hawkins v. Bleakley, 220 Fed. heads off one method of evading and ring judicial power on the state au378; Hunter v. Colfax Cons. Coal Co., crippling the act. One underlying ditor having charge thereof. Cun(Iowa) 154 NW 1037.

purpose of the statute is to promote ningham .v. Northwestern Impr. Co., 12. Deibeikis v. Link-Belt Co., 261 acceptance by the employé. No valid 44 Mont. 180, 119 P 554. Ill. 454, 104 NE 211, AnnCas1915 A right is infringed by making taboo [b]

In Oregon, under Const. art 7 241; Mackin v. Detroit-Timkin Axle


employment of methods that § i, as amended in 1911, the legislaCo., 187 Mich. 8, 153 NW 49; Sayles might press the employe to reject." ture was authorized to confer juv. Foley, (R. I.) 96 A 340 (holding Hunter Colfax Cons. Coal Co., dicial powers on the state industrial that Pub. L. [1912] c 831 art 1 $ 6, supra.

accident commission, created by the providing that an employee of an la] For example the following workmen's compensation law, since accepting employer waives his com- provisions have been sustained: (1) under the amendment the legislature mon-law action unless he gives No contract, rule, regulation or or the people may conferjudicial notice of such claim to the employer,

device whatsoever shall operate to powers on any tribunal selected, so does not render the act invalid as relieve the employer, in whole or in long as the different departments of destroying the right of freedom of part, from any liability created by government are not made to contract, since such provision sim- this act except as herein provided. croach on each other. Evanhoff v. ply creates a presumption in the ab- Hunter Colfax Cons. Coal Co., State Industrial Acc. Commn., 78 Or. sence of such notice leaving the em- (Iowa) 154 NW 1037. (2) "Any con- 503. 154 P 106. ployee free to accept or to reject the tract of employment, relief benefit or 19. Mackin

Detroit-Timkin act).

insurance or other device whereby | Axle Co., 187 Mich. 8, 153 NW 49; 13. Hunter V. Colfax Cons. Coal the employe is required to pay any Middleton v. Texas Power, etc., Co., Co., (Iowa) 154 NW 1037 (sustaining premium or premiums for insurance (Tex.) 185 SW 556; Borgnis v. Falk the provisions of the Iowa act that against the compensation provided Co., 147 Wis. 327, 358, 133 NW 209, every employer, subject to its pro- for in this act shall be null and 37 LRANS 489. visions, shall insure his liability void." Hunter V. Colfax Cons. Coal We do not consider the Industrial thereunder in some organization ap- Co., supra. (3) "No employe or bene- Commission a court, nor do we conproved by the state department of ficiary shall have power to waive any strue the act as vesting in the Cominsurance, and further provisions as of the provisions of this act in re- mission judicial powers within the to this and the supervision and regu- gard to the amount of compensation meaning of the constitution. It is lation of taking and maintaining which may be payable to such em- an administrative body or arm of such insurance, together with pro- ploye or beneficiary hereunder to the government which in the course visions as to the methods by which whom the act applies." Hunter V. of its administration

law is the insurance can be carried by mu- Colfax Cons. Coal Co., supra. (4) empowered to ascertain some questual arrangernent by the employer | "Any contract or agreement made by tions of fact and apply the existing and employee, or under which the any employer or his agent or attor- law thereto, and in so doing acts employer may carry his own risk; ney with any employe or any other quasi-judicially, but it is not thereby and various other regulations and beneficiary of any claim under the vested with judicial power in the supervisions of these arrangements provisions of this act within twelve constitutional sense.' Borgnis V. for carrying insurance, for terminat- (12) days after the injury shall be Falk Co., supra. ing such arrangements, and the like). | presumed to be fraudulent." Hunter 20. Mackin

Detroit-Timkin 14. Hunter V. Colfax Cons. Coal v. Colfax Cons. Coal Co., supra. (5) Axle Co., 187 Mich. 8, 153 NW 49. Co., (Iowa) 154 NW 1037, 1050.

"The compensation herein provided 21. Deibeikis v. Link-Belt Co., 261 "While the right to contract is a shall be the measure of the responsi- 111. 454, 104 NE 211, AnnCas1915 A property right, like all other prop- bility which the employer has as- 241; Greene v. Caldwell, 170 Ky. 571, erty rights, it is 'subservient to the sumed for injuries or death that may 186 SW 648; Mackin v. Detroit-Timpublic welfare,' and may be taken occur to employes in his employment kin Axle Co., 187 Mich. 8, 153 NW by the state in a well-directed effort subject to the provisions of this act. 49; Borgnis v. Falk Co., 147 Wis. to promote the public welfare by the and it shall not in any wise be re- 327, 133 NW 209, 37 LRANS 489. exercise of the police power." Hunter duced by contributions from

[a] "Being elective, the act does v. Colfax Cons. Coal Co., supra.

ployes." Hunter V. Colfax Cons. not become effective as to any em15. State Clausen, 65 Wash. Coal Co., supra.

ployer or employee unless such em156, 192, 117 P 1101, 37 LRANS 466. 17. Mackin

Detroit-Timkinployer or employee chooses to come “It is thought the act at bar inter- Axle Co., 187 Mich. 8, 153 NW 49. within its provisions. Having once feres with certain of the personal 18. iii.-Deibeikis y. Link-Belt elected to come within the provisions rights here defined, particularly with Co., 261 Ill. 454, 104 NE 211, AnnCas of the act, as long as such election the right of contract, and is for that 1915A 241.

remains in force the act is effective reason violative of this provision of Iowa.-Hunter

Colfax Cons. as to the party or parties making the constitution. But it is recognized Coal Co.. 154 NW 1037.

the election, and in case an employer in the case cited, and in many others, Mich.-Mackin V. Detroit-Timkin and an employee both elect to come that these rights are not absolute. Axle Co., 187 Mich. 8, 153 NW 49. within the provisions of the act, the On the contrary, it has been many Minn.--State

Meeker County act itself then becomes a part of the times said that there is no absolute Dist. Ct., 128 Minn. 221, 150 NW 623. contract of employment and can be right to do as one wills, pursue any Tex-Middleton V. Texas Power, enforced as between the parties as calling one desires, or contract etc., Co., 185 SW 556.

such. Under this view it cannot be one chooses; that the term liberty Wash.-State v. Mountain Timber said that by this act judicial power means absence of arbitrary restraint,Co., 75 Wash. 581, 135 P 646.

is delegated to boards of arbitrators, not immunity from reasonable regu- Wis.-Borgnis V. Falk Co., 147 contrary to the provisions of our lations and prohibitions imposed in Wis. 327, 133 NW 209, .37 LRANS constitution. Parties to a contract the interests of the community.” 489.

may make valid and binding agreeState v. Clausen, supra.

[a] The Montana Miners' Com- ments to submit questions in dispute 16. Hunter v. Colfax Cons. Coal pensation Act (L. (1909] c 67), pro- or any disagreement that may arise Co., (Iowa) 154 NW 1037, 1050; In re viding indemnity for injured em- to a board of arbitrators composed Opinion of Justices, 209 Mass. 607, | ployees engaged in coal mining from of persons or tribunals other than 96 NE 308.

a fund to be collected from a tax the regularly organized courts, and "Assuming there can be a

valid levied on the workmen and the coal such agreements will be enforced. compensation act, certainly the Leg- operators in accordance with

the (Pacaud v. Waite, 218 Ill. 138, 75

of a



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specific courts, the legislature may be given power, Provision for arbitration. A provision in an as has been done in some jurisdictions by a con- elective act for the formation of a committee of stitutional amendment, to vest a board or commis- arbitration in case of disputed claims, the decision created under a compensation act with judi- sion of which is reviewable by the industrial comcial powers.22 In such a case the authority of the missioner, and on which a decree is rendered by legislature is of course measured by the terms of the district court, has been sustained as against a the amendment.? A statute creating a state contention that it is an improper delegation of board to establish a state insurance fund from judicial power and a denial of a judicial hearing.? premiums paid by employers and employees has Depriving courts of jurisdiction. The elective been held not invalid as a delegation of judicial acts are not invalid as depriving the parties of all powers. 24

right to resort to the courts.26 NE 779, 2 LRANS 672.) By elect- therein, leaving none at the disposal would be valid—wo hold that, even ing to accept the provisions of this of the legislature. Authority to the if submission be compulsory, there act the employer and the employee legislature to create another state is here no unwarranted delegation. thereby agree to settle by arbitra- tribunal and vest it with judicial It does not at all follow from protion any dispute that may arise be- power over this new class of cases

nouncements that judicial power tween them in reference to compen- must be sought for elsewhere in the may not be delegated, that none but sation for injury." Deibeikis v. Link- constitution. It is found only in the duly constituted constitutional courts Belt Co., 261 Ill. 454, 465, 104 NE aforesaid section 21 of article XX. may exercise judicial power." Hunt211. AnnCas1915A 241.

It follows that this section measures er v. Colfax Cons. Coal Co., (Iowa) 22. Western Metal Supply Co. v. and limits the legislative power in 154 NW 1037, 1061. Pillsbury, (Cal.) 156 P 491; Pacific that respect. The second sentence [b] "It is not wholly clear that Coast Casualty Co. v. Pillsbury, 171 of the section authorizes the creation here there is a delegation of judicial Cal. 319, 153 P 24; Englebretson v. of a state board to settle disputes power. It might, perhaps, as well Industrial Acc. Commn., 170 Cal. 793, arising under the legislation author- be claimed that what has really been 151 P 421 (holding that, as Const. ized by the first sentence. This delegated is not judicial power, but art 20 $ 21, amended, under includes only disputes arising out power by award and resulting entry which the workmen's Compensation of the newly to be created liability of decree to apply the measure of Law was enacted, did not authorize of an employer to his employee for damages created by legislative act, the legislature to delegate to the an injury incurred by such employee a delegation of legislative rather commission, was attempted by ‘in the course of' the employment.than of judicial power." Hunter v. § 75 subd 6, power to regulate and It is these injuries only the redress Colfax Cons. Coal Co., (Iowa) 154 to prescribe the nature and the ex- of which may be committed by the NW 1037, 1060. tent of the proofs and the evidence, legislature to a state industrial acci- 26. Hunter v. Colfax Cons. Coul such attempted delegation is in- dent board. Hence it follows neces- Co., (Iowa) 154 NW 1037; Borgnis v. valid).

sarily that the legislature cannot Falk Co., 147 Wis. 327, 133 NW 209, [a] Commission exercising ju- give such board power to settle dis- 37 LRANS 489. dicial powers."It is true that, in putes and allow compensation from [a] Extent of ouster of jurisdicseveral cases involving compensa- the employer to a person who has tion "If


assume the statute tion statutes, it has been held that been or is an employee, for a per- would be void if it operated to oust the boards or officers authorized to sonal injury which was not incurred the courts of all jurisdiction to try determine the facts upon which the by him in the course of his employ- | controversies between employer and right to compensation arose

ment, or which happened after the employé, it is an immaterial concesexercising executive or administra- employment had ceased and was not sion in the cases wherein the act is tive rather than judicial powers. the natural and proximate result of rejected. For, when rejected, the Kennerson v. Thames Towboat Co., the employment, or of some injury courts are not ousted of jurisdiction 89 Conn. 367, 94 A 372, LRA1916 A which did occur in the course of his in toto, and, as we view it, not de436; Mackin v. Detroit-Timkin Axle employment. It could not give such prived of it at all. Where the act is Co., 187 Mich. 8, 153 NW 49; Borgnis board power to allow compensation rejected the full dispute between the v. Falk Co., 147 Wis. 327, 133 NW to McCay for the additional disabil-parties is still submitted by ordinary 209, 37 LRANS 489. But in none of ity or expenses arising from the proceedings, and tried in the usual these cases was the court consider- slipping of the broken bone, unless way. True, some mere rules of proing a statute which gav to a com- such slipping was the natural or cedure are changed, some defenses mission powers as extensive as those proximate result of the original in- are eliminated, and there is vested by our law in the industrial jury." Pacific Coast Casualty Co. v. change in burden of proof. Even if accident commission. We shall not Pillsbury, 171 Cal. 319, 322, 153 P 24. it be assumed that these changes are take the time to review in detail the 24. State v. Creamer, 85 Oh. St. unauthorized, the objection is not cases just cited, but content our- 349, 400, 97 NE 602, 39 LRANS 694 sustained that on rejection of the selves with saying that we think (where the court said of 102 Oh. L. act the courts no longer have juristhere is nothing in them which p 524:

"If the board is a court diction to try suits for the injury of would support the claim that the there is an end of the whole matter. an employé. A somewhat more diffipowers exercised by the industrial The statute would be unconstitu-cult question arises when the proaccident commission of this state in tional. For if the board is a court visions of the act are accepted.

In making awards of compensation are it has not been created in accord- that case, if the parties cannot come not strictly judicial.” Western Metal ance with the manner provided by to an agreement, compensation fixed Supply Co. v. Pillsbury, (Cal.) 156 the constitution. We do not consider by statute schedule is awarded by P 491, 493.

the Board of Awards a court, or in- / arbitration provided for in the act. 23. Pacific Coast Casualty Co. v. vested with judicial power within In a sense, then, the acceptance of Pillsbury, 171 Cal. 319, 153 P 24. the meaning of the constitution. It the statute operates to take from the

[a] "The constitutional provision is created by the act purely as an courts so much of the controversy is that the legislature may 'create administrative agency to bring into as is determined by the applying of and enforce a liability on the part being and administer the insurance the statute schedules through the of all employers to compensate their fund, and the fact that it is empow- agency of the statute arbitrators, employees for any injury incurred ered to classify persons who come Before

reach the question by the said employees in the course under the law and to ascertain facts whether, if this constitute a total of their employment.' It proceeds to to the application of the fund, ouster of the jurisdiction of the declare that the legislature may does not vest it with judicial power courts, it would invalidate the act, establish an industrial accident within the constitutional sense"). we, of course, have to determine board and empower it to settle dis- 25. Hawkins v. Bleakley, 220 Fed. whether such total ouster is SO putes concerning the liability which 378, 382; Hunter v. Colfax Cons. effected. We are forced to deal with the legislature may create under the Coal Co., (Iowa) 154 NW 1037.

this question as one of first impresauthority so given. (Art. XX, sec. "Arbitrations existed at common sion, because no decision that sus21.)

This action by such board law, and they are allowable under tains the Compensation Act of other would be

exercise of judicial the Iowa statute, The conclusion states is applicable. The Washingpower. For that purpose it is, in and award of an arbitrator can be ton Act and that of Massachusetts legal effect, a court. Section 1 of enforced by judicial proceedings. reserve recourse to the courts and article VI vests the judicial power There is nothing new about all this. full judicial review.

Borgof the state in the senate, sitting And these arbitrations are agreed to nis v. Falk Co., 147 'Wis. 327, 133 as a court of impeachment, in a su- under this statute either by specific NW 209, 210, 37 LRANS 489, preme court, district courts of ap- agreement

by acquiescence.' tains the Wisconsin act with a holdpeal, superior courts,' and such in- Hawkins V. Bleakley, supra.

ing that there is review if the act be ferior local courts as the legislature [a] Judicial power not restricted without power or fraudulent, that if may establish. Under this provision to courts.-"Assume the delegation the board act without or in excess of the legislature would be without au- is one of judicial powers, while if its jurisdiction, there may be action thority to give judicial power to any the parties are left wholly free on in court to set aside the award, and general state board

tribunai. whether
to reject or accept

this that this may also be done if its findExcept for local purposes the sec- arbitration and resulting court ings of fact are not supported by the tion disposes of the whole judicial orders, it is, perhaps, not strictly evidence. Our act has no such reserpower of the state and vests all of necessary to determine whether en- vations, in terms, and therefore these it in the courts expressly named forced submission to said procedure I decisions afford us no light.










Right to review. The fact that a right of appeal that the power is given the employer to choose from an administrative board is not granted does from two alternative schemes, both clearly and not constitute an encroachment on the judiciary completely defined by the law and designed to where the right of review by certiorari remains afford compensation for an accident to another, so open.27 The parties cannot be deprived of the long as that other is not bound by the employer's right to have a court review of the action of the choice but is left free to make his own choice.2 board to the extent of determining whether it has [ý 24] L. Subject and Title of Act. In several acted illegally or without jurisdiction.?

of the states particular compensation statutes have [6 23] K. Delegation of Legislative Authority. been held not to violate constitutional requirements An elective compensation act is not invalid as a that every act shall embrace but one subject which delegation of legislative authority for the reason shall be expressed in its title,30 the tests applied We are in no doubt that the very acted without or in excess of its

an appropriation to carry out the structure of the law of the land, and powers; (2) that the award was pro- provisions of this act, and restrictthe inherent power of the courts, cured by fraud; and (3) that the ing the right to compensation or would enable them to interfere, if findings of fact do not support the damages in such cases to such as what we have defined to be the juris- | award. We regard the expression are provided by this act."

Pub. diction conferred upon the arbitra- 'without or in excess of its powers' Acts (Ex. Sess. 1912) No. 10 p 20; tion committee were by it exceeded- as substantially the equivalent, or at Mackin v. Detroit-Timkin Axle Co., could inquire whether the act was least inclusive, of the expression 187 Mich. 8, 11, 153 NW 49. (3) "An being enforced against one who had 'without or in excess of its jurisdic- act providing for the protection and rejected it, whether the claiming em- tion,' as those words are used in safety of workmen in all places of ployé was an employé, whether he certiorari actions to review the de- employment and for the inspection was injured at all, whether his in- cisions of administrative officers and and regulation of places of employjury was one arising out of such bodies. We know of no other con- ment in all inherently hazardous employment, whether it was due to struction that can be logically given works and occupations; providing a intoxication of the servant, or self- to them, and it seems to us that they schedule of compensation for injury inflicted or, acceptance being con- were designedly and advisedly in- to or death of workmen and methceded, into whether an award differ- serted by the framers of the bill to ods of paying the same, and preent from the statute schedules had meet the very objection which is now scribing the liability of employers been made, into whether the award made. With this construction, it is who do not elect to pay such comwere tainted with fraud on part of certain that the constitutional pow- pensation; establishing the industhe prevailing party, or of the arbi- ers of the courts have not been in- trial accident board, defining its tration committee, and into whether | vaded, and that no man without his powers and duties; and providing that body attempted judicial func- consent can be brought under the for

а review of its awards." L. tions, in violation of or not granted law or is deprived of his right to (1915) 96 p 168: Lewis,

etc., by the act. All of which establishes due process of law' thereby." Borg-County Industrial Асс. . Bd., the statute works no complete ouster nis V. Falk Co., 147 Wis. 327, 360, (Mont.) 155 P 268, 269, (4) "An act of jurisdiction, the only ouster which 133 NW 209, 37 LRANS 489.

prescribing the liability of an emis condemned. The utmost it does 29. Sayles v. Foley, (R. I.) 96 A ployer to make compensation for is to provide administrative 340.

injuries received by an employee in chinery for applying rates of com- (a) “The employer has the first the course of employment. estabpensation fixed by the Legislature move, so to speak. If he does not lishing an elective schedule of comas between parties who have agreed elect, the parties remain under the pensation, and regulating procedure to have the amount of compensation, common law as modified by the

for the determination of liability Hunter V. merely, thus determined."

and statute itself, the employé with his compensation thereunder." L. Colfax Cons. Coal Co., (Iowa) 154

previous rights undiminished and (1911) C 95 p 134; Huyett v. PennNW 1037, 1062, 1064.

ihe employer shorn of some of his sylvania R. Co., 86 N. J. L. 683, 92 27.


If the employer
State v. Meeker County Dist. | previous defenses.

58. (5)


creating the Ct., 128 Minn. 221, 150 NW 623. elects to come under the compensa

State Industrial Accident Commis28. Courter

v. Simpson
tion scheme of the statute, the em-

and providing an Industrial Co., 264 Ill. 488, 495, 106 NE 350; ployé then has the opportunity of Accident Fund, making an appropriBorgnis v. Falk Co., 147 Wis. 227, electing by positive act to remain ation for such fund and providing 133 NW 209, 37 LRANS 489. Com

under the common law and to pre- for the administration of the terms pare Hunter v. Colfax Cons. Coal Co., serve his remedies thereunder for of this act, providing for the collec(Iowa) 154 NW 1037 (where it is future accidents, or by inaction to tion and disbursement of funds for held that, in the absence of an ex- tacitly accept the compensation fea- the benefit, compensation and care

tures of



is a press provision in the act, the in

of workmen, prescribing the duties somewhat herent powers of the courts would

unusual and extended of employers and workmen subject were the

the enable them to interfere

application of

doctrine of the to this act, and providing penalties jurisdiction imposed on the arbitra

election of remedies, but it does not for a violation of the terms of this tion committee exceeded); State

involve a delegation of legislative act, and abolishing in certain cases

power. Journal Co. v. Workmen's Compensa

Sayles v. Foley, (R. I.) 96 the defenses of assumption of risk, A 240, 348.

contributory negligence and tion Bd., 162 Ky. 387, 388, 172 SW

the 30. Kan.-Shade V. Ash 674, LRA1916A 402 (where the court,

Grove negligence of fellow-servant in

Lime, etc., Co., 93 Kan. 257, 144 P actions for personal in pointing out the objections to the

injury and 249.

death." L. (1913) 112 p 188; Kentucky act held unconstitutional

Ky.-Greene v. Caldwell, 170 Ky. Evanhoff V. “Provision

State Industrial Acc. on other grounds, said:

571. 186 SW 648. should be made in the act for appeal

Commn., 78 Or. 503, 514, 154 P 106.

Mich.-Mackin V. Detroit-Timkin (6) "An act relating to employers' to a court of competent jurisdiction for review in all cases where com

Axle Co., 187 Mich. 8, 153 NW 49. liability and providing for the com-

County V. pensation of certain employes and pensation is denied or where a less State Industrial Acc. Bd., 155 P 268. their

representatives and benefisumn is allowed by the board than claimed by

N. J.--Huyett v. Pennsylvania R. that the injured

ciaries, for personal injuries susemCo., 86 N. J. L. 683, 92 A 58.

tained in the course of employment, ployee").

Or.-Evanhoff v. State Industrial and for deaths resulting from such "To deny a court review of those

Acc. Commn., 78 Or. 503, 154 P 106. | injuries, and to provide and deterquestions would violate the due proc- Tex-Middleton v. Texas Power,

mine in what cases compensation of law provision of

the con

etc., Co., 185 SW 556; Consumers' shall be paid, and to make the paystitution." Courter V. Simpson Lignite Co. v. Grant, (Civ. A.) 181 ment thereof the more certain and Constr. Co., supra. SW 202.

prompt by the creation of an in[a] Construction of statute.-"If

(a) Hlustrations. The follow- surance association to insure and the act before us took away from

ing titles have been held not subject guarantee such payments and of an the courts the power to consider

to constitutional objections: (1) industrial accident board for the these jurisdictional questions, either "An Act to provide compensation investigation of claims and for the expressly or by necessary implica

for workmen injured in certain haz-adjudication thereof for consenting tion, the contention that judicial ardous industries." L. (1911) c218; parties, fixing the membership and power had been vested in the Com

L. (1913) c 216; Shade v. Ash Grove powers of said board and its commission, contrary to the command

Lime, etc., Co., 93 Kan. 257, 261, 144 pensation and duties, and the of the constitution, would be of P 249. (2). "An act to promote the method of its appointment, and the greater force, but we think that the welfare of the people of this State, term of office of its members, and act does not do this, or attempt to relating to the liability of employ- fixing also the powers, duties and do it. True, it says that the 'find

ers for injuries or death sustained liabilities of said insurance associaings of fact made by the Commission by their employees, providing. com- tion and the extent of control over shall, in the absence of fraud, be pensation for the accidental injury the same to be exercised by the conclusive; but it provides for an to or death of employees and meth- Commissioner of Banking and Inaction in the circuit court for Dane ods for the payment of the same, surance, and providing also for the county, in which the board's award establishing an industrial accident insurance of payments of compenmay be set aside upon either of three board, defining its powers, providing sation to employees by certain other grounds, viz.: (1) that the board for a review of its awards, making linsurance companies and organiza










being those applicable to statutes generally. 31 It for the appointment and the salaries of commisis not essential that the title contain details, sioners.” When the title is sufficiently broad to incidents, or means of carrying out the object indicate that the act is intended to furnish the of the legislation.32 The term "workmen” em- only compensation to be allowed workmen subseployed in a generic sense is sufficient to include quent to its becoming law, it includes any and all the employees of a county as well as the serv- rights of action in which such compensation might ants of individuals or of private corporations.


have been obtained.37 So the term "employers” has been held to [025] M. Effect of Partial Unconstitutionality. include a municipal corporation. Under a con- It is well settled that a statute may be unconstitustitutional requirement that no law shall embrace tional and void as to some of its provisions and more than one subject which shall be expressed valid as to others,38 and this rule has been applied in its title, a statute providing for compen- to compensation legislation, some of the statutes sation for accidental injury to, or death of, expressly providing that, if any provision is held employees would be unconstitutional if construed inoperative, no other part shall be affected. 40 to extend to occupational diseases. A constitu- [$ 26] N. Persons Who May Urge Unconstitutional requirement that appropriation laws making tionality. As a general rule no one can urge the provision for the salaries of public officers and unconstitutionality of a compensation act who is for current expenses of the state shall contain not injuriously affected by the feature complained provisions on no other subject is not violated by of ;41 and so the employer will not be heard to urge the fact that a compensation act makes provision tions, and declaring an emergency.” | employer's liability and the proceed- | raised, as they may be applicable to L. (1913) c 179 p 429; Middleton v. ings for the compensation of certain either section"), Texas Power, etc., Co., (Tex.) 185 employés, etc. The employer is lia- 40. See statutory provisions; and SW 556; Postex Cotton Mill Co. v. ble when he is not a subscriber to Consumers' Lignite Co. v. Grant, McCamy, (Tex. Civ. A.) 184 SW 569; the insurance association, and the (Tex. Civ. A.) 181 SW 202; State v. Consumers' Lignite Co. Grant, act then further provides what com- Clausen, 65 Wash. 156, 197, 117 P (Tex. Civ. A.) 181 SW 202; Mem- | pensation the employé may receive | 1101, 37 LRANS 466 (where the court phis Cotton Oil Co. v. Tolbert, (Tex. from the association when the em- said: "In section 27, the legislature Civ, A.) 171 SW 309.

ployer is a member thereof." Mem- has made it clear that it did not in[b] Compensation to dependents phis Cotton Oil Co. v. Tolbert, (Tex. tend the provisions relating to those included "The defendant argues Civ. A.) 171 SW 309, 312.

who are entitled to partake of its that the Workmen's Compensation 33. Lewis, etc., County v. State benefits to be so far an integral part Act of 1911 is unconstitutional, be- Industrial Acc. Bd., (Mont.) 155 P of the act that it could not be elimcause it embraces two objects and 268.

inated in part without destroying the one only is expressed in the title. 34. Purdy v. Sault Ste. Marie, act in its entirety. It is there exThe point is thus stated in his brief: (Mich.). 155 NW 597; Allen v. Mill-pressly provided that the adjudica"The act in its title prescribes only ville, 87 N. J. L. 356, 95 A 130. tion of invalidity of any part of the the liability of an employer to make 35. Adams v. Acme White Lead, act shall not affect the validity of compensation for injuries received etc., Works, 182 Mich. 157, 148 NW the act as a whole or any other part by an employe, &c., and does not 485, LRA1916A 283 and note (dist thereof. This means that the legisprovide for compensation by In Hurle, 217 Mass. 223, 104 lature intended the act to be enforced employer to the next of kin of an NE 336, LRA1916A 279, AnnCas as far as it may be, even though it employe who is killed in the course 1915C 919, and In re Johnson, 217 might not be valid in its entirety. of his employment.' We are unable Mass. 388, 104 NE 735, on the ground It was competent for the legislature to adopt defendant's view. It seems that there was in Massachusetts no to provide. Anything it could to us that the object of the act is constitutional provision similar to have eliminated itself and left an single-to provide for the liability Mich. Const. art 5 $ 21).

operative act, can be eliminated by of an employer to make compensa- 36. Evanhoff v. State Industrial the courts without destroying the tion for injuries received by an em- Acc. Commn., 78 Or. 503, 154 P 106 entire act, if it is the will of the ploye. Whether the compensation (where the court, however, was in- legislature that the remaining parts is to be made to the employe him- Nuenced by the construction fol- of the act shall stand after such self or to those who suffer pecu- lowed and acquiesced in by the legis- elimination. So here, if it be true niary loss by reason of his injuries, lature, and by the disorganization of that the legislature has gone too far it is equally a liability of the em- public business and the destruction in this direction, and has attempted ployer. Whether the injuries result of private pecuniary rights which to include within its benefits certain in death or not, they are naturally would follow a declaration of the employees who cannot be included and properly spoken of as injuries unconstitutionality of the act). without including employees genreceived by an employe. The

37. Peet v. Mills, 76 Wash. 437, erally, these can be omitted in the pression “fatal injuries' is not un- 136 P 685, LRA1916A 358 and note, administration of the act without common or improper.

That this AnnCas19151 154 and note (holding the necessity of nullifying the entire single object of providing for the that L. [1911] C 74 precluded an act. But whether any such workliability

the employer is



injured employee men are so improperly included, we pressed in the title sufficiently ap- against the president of an employer shall not here determine.

The quespears from a mere reading of that corporation individually).

tion can best be met when it arises portion of the title we have already 38. See Statutes (36 Cyc 976). during the course of the act's adquoted." Huyett v. Pennsylvania R.


Consumers' Lignite Co. v. ministration"). Co., 86 N. J. L. 683, 92 A 58.

Grant, (Tex. Civ. A.) 181 SW 202; 41. U. S.-Meese y. Northern Pac. 31. See Statutes [36 Cyc 1017). Memphis Cotton Oil Co. v. Tolbert, R. Co., 206 Fed. 222 (rev on other

32. Mackin v. Detroit-Timkin (Tex. Civ. A.) 171 SW 309, 313 (where grounds 211 Fed. 254, 127 CCA 622 Axle Co., 187 Mich. 8, 153 NW 49; the court said: "If the sections of (rev U. S.)]. Memphis Cotton Oil Co. V. Tolbert, the act authorizing the creation and Iowa.--Hunter v. Colfax Cons. Coal (Tex. Civ. A.) 171 SW 309.

regulation of Texas Employers' In-Co., 154 NW 1037. [a] Illustrations.-(1) "The par- surance Association are unconstitu- Mich.--Mackin V. Detroit-Timkin ticulars pointed out in which it is tional, because not authorized under Axle Co., 187 Mich. 8, 153 NW 49. claimed the act contains provisions the general incorporation law of this N. H.---Wheeler

Contoocook not referred to or comprehended in state, the sections of the law in- Mills Corp., 77 N. H. 551, 94 A 265. the title are that it repeals an ex- volved in this suit are not so con- N. J.-Sexton v. Newark Dist. Tel. isting statute relative to contracts nected with the insurance sections Co., 84 N. J. L. 85, 86 A 451 (aff 86 with attorneys for services, creates as to render void the sections relat- N. J. L. 701, 91 A 1070). a right of action against a third ing to contributory negligence, as- R. I.-Sayles v. Foley, 96 A 340. party by the employer of the in- sumed risk, and fellow servant”). (a) Illustrations.-(1) An jured, subrogating the employer to Compare Sexton v. Newark Dist. Tel. ployee who has had an opportunity the rights of the employee, and re- Co., 84 N. J. L. 85, 91, 86 A 451 [aff to elect between his common-law quires the injured employee to seek 86 N. J. L. 701, 91 A 1070] (where action and the compensation procompensation


insurance the court said of P. L. (1911] p 134; vided for by the act, his employer com pany, instead of his employer. “Sections 1 and 2 providing two en- having elected to come under the

think the objections tirely different schemes-one regu- act, cannot question the validity of urged to the title of this act are not lative of the common law, and the the act on the ground that the emtenable under the decisions of this other purely the creature of statute ployee of a nonaccepting employer and other courts." Mackin De- -are so interwoven and constitute has no such election, since the comtroit-Timkin Axle Co., 187 Mich, 8, so completely one single plan that it plaining employee cannot raise such 22, 153 NW 49. (2) “We have con- is unlikely that if section 1 is bad question in the absence of an included that the subject of the act is the legislature intended that section vasion of his rights by the provision stated in the title, and that there is 2 should stand. Indeed, the contrary attacked. Sayles v. Foley, (R. I.) 96 not more than one subject contained is expressly provided in paragraph A 340. (2) An employer who has therein. The ends to be reached are 24 of the act. It is therefore neces- not accepted the act cannot complain more than one, but all relate to the sary to consider the objections ' of alleged discriminations and in









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