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cussion of the manner in which objections to the he might recover,68

nor on an interpretation of the constitutionality of a compensation act may be statute as to its applicability to persons engaged in presented is more appropriate to an article dealing irterstate commerce. The unconstitutionality of a with the general topic of constitutional law.62 In statute because of the manner of its enactment canat least one jurisdiction, however, the act was sub- not properly be raised by demurrer to a declaration mitted to the highest court of the state for an in an action for injuries by an employee alleging opinion as to its constitutionality in advance of its that defendant had elected not to be governed by passage;83 in another the question was raised by the act.88 Where the constitutionality of the workthe state auditor in mandamus to compel the issu- men's compensation act, in its abolition of the ance of a warrant to the state treasurer in pay- unaccepting master's defense of assumption of risk, ment of an obligation incurred by the industrial has repeatedly been decided by the highest court insurance department;64 and in another by applica- of the state, defendant master, in a servant's tion by the compensation board for mandatory action for injury, cannot make an attack on its coninjunction to compel an employer to fill out and stitutionality a pretext for a direct appeal to that return blanks containing information required by court which otherwise would not entertain juristhe act.65 On the other hand, it has been held that diction.69 the constitutionality of a compensation act will not Propriety and policy of legislation. In dealing be determined on an application by an injured em- with the constitutionality of compensation legislaployee for an injunction against its enforcement tion, the courts will not, as a rule, concern themon the ground that the state industrial accident selves as to objections going to the wisdom, procommission and the state treasurer threatened to priety, and policy of the statute involved, such deprive him of the right to a trial by jury and matters being left to the legislative judgment? wrongfully claimed power to determine the amount with which the judiciary is loath to interfere.72 LRANS 162, AnnCas1912B 156 (ef- | (holding that the employee could test are more direct and better methods fect of reserved power to alter or the constitutionality of the act by of dealing with combinations such as amend charters, also deprivation of bringing his action either at com- are here charged to exist, than deright to trial by jury in connection mon law under the employers' claring an otherwise valid act void, with scale of compensation and set- liability act).

because it requires the employer to tlement of disputes).

67. Connole v. Norfolk, etc., R. insure his liability." Hunter v. ColTex.-Consumers' Lignite Co. V. Co., 216 Fed. 823.

fax Cons. Coal Co., (Iowa) 154 NW Grant, (Civ. A.) 181 SW 202 (where

68.

Przy kopenski v. Citizens' Coal | 1037, 1059. the court of civil appeals refused to Min. Co., 270 11l. 275, 110 NE 336. 71. State Journal Co. V.

Workpass on constitutionality as unneces- 69. Strom v. Postal Tel. Cable Co., men's Compensation Bd., 161 Ку. sary to the determination of a case, 271 111. 544, 111 NE 555.

562, 170 SW 437, 1166, LRÁ1916A 389, that question being pending in the [a] In Illinois constitutional AnnCas1916B 1273. supreme court).

question is waived by an appeal to [a] Illustration.-"The counsel for Wis.-Borgnis v. Falk Co.,

147
the appellate

French appellant fiercely assail the purpose Wis. 327, 365, 133 NW 209, 37 LRA Cloverleaf Coal Min. Co., 190 NI. A. and operation of this act for many NS 489 ("so much of sec. 2394-16 400.

other reasons. They complain of (L. (1911) c. 50) as provides that 70. U. S.--Hawkins v. Bleakley, the meager compensation it gives the board or any member thereof, 220 Fed. 378.

to the injured employe; that it deor any examiner appointed thereby, Iowa.--Hunter v. Colfax Cons. Coal prives him of a jury trial; that emshall have power to issue subpænas, Co., 154 NW 1037.

ployers are compelled to pay into obedience to which shall be enforced Mich. ---Mackin V. Detroit-Timkin this fund $1.25 as a premium on each by contempt proceedings in the cir- Axle Co., 187 Mich. 8, 153 NW 49. $100.00 pay roll, and, as a result, cuit court," and clauses "which em- Oh.-State v. Creamer, 85 Oh. St. only employers doing an extra hazpower the Commission (1) to de- 349, 97 NE 602, 39 LRANS 694.

ardous business will take under it; clare and enforce penalties against R. I.-Sayles v. Foley, 96 A 340. that corporations whose operations the employer for failure to perform "Whether the plan adopted is the are not extra hazardous will carry certain orders of the board made most appropriate or best calculated their own risks by the aid of inpending hearing (section 2394-17); to accomplish those objects are mat- demnity companies, and by reason of (2) to set aside or modify contracts ters with which the court is not con- which this compensation fund is liaof settlement previously made by the cerned and the law should not be ble to suffer depletion, and if an emparties (sec. 2394-15); and (3) to held to be invalid unless clearly in ploye receives an injury, his comregulate the amount of contingent violation of some provision of the pensation is doubtful. It is also attorney's fees and permit

constitution." State v. Creamer, 85 claimed that, as this is a common claimant to make a contract which Oh, St. 349, 391, 97 NE 602, 39 LRA fund, kept up by the contributions it may refuse to allow another to NS 694.

of employers, that they will grow make (sec. 2394-22)").

"Nearly all of the objections to careless in selecting their machinery, See American Coal Co. v. Allegany this statute are argued from the as well as in their operations, and County Comrs. 128 Md. 564, 98 istandpoint of morals and propriety that the lives and limbs of the em143 (holding that Acts (1910) c 153, and policy. As of course those were ployes will suffer greater risks and as amended by Acts (1912] c 445, questions for the Legislature. This injuries. A sufficient answer to all providing a miners' and clay opera- statute may have, and no doubt does this is, that these are matters adtors'

relief fund, is not invalid have, many objectionable features; dressed entirely to the wisdom of the merely because, if an employee elects but that it is a statute with right Legislature and can be regulated as to come under it, the employer, after tendencies I have no doubt. And all necessities may require." State he goes out of business, might be such legislation is

matter of Journal Co. v. Workmen's Compencompelled to pay twice, since there growth and development, and in the sation Bd., 161 Ky. 562, 574, 170 SW is no provision for refund, that being end when mature, as it ought to be 437, 1166, LRA1916 A 389, AnnCas a remote contingency which should and quite likely will be, beneficial 1916 B 1273. not operate to invalidate an act sup- results will be obtained. At all

State v. Clausen, 65 Wash. 156, ported by strong consideration of events, this legislation cannot bring 211, 117 P 1101, 37 LŘANS 466. public justice); American Ice Co. v. forth worse results than

[a] Production of public and priFitzhugh, 128 Md.

382,

97 A 999 have as to these matters by court vate abuses. "The auditor also com(where the court did not pass on the procedure. And still further, and in plains of the scheme adopted by the constitutionality of the Maryland event, can courts condemn the legislature for correcting the evil act for

the reason that exceptions mere policy or proprieties of the they have found to exist. It is said were not pressed and that it was the law." Hawkins v. Bleakley, 220 Fed. that the scheme is unduly cumberunderstanding of the court that an- 378, 382 (sustaining lowa statute). some: that its administration will other suit had been instituted to [a] Incentive to combinations of prove unnecessarily costly and burtest the constitutionality of the act). insurers.-"We do not find the argu- densome to those whose interests are

62. See Constitutional Law [8 ment persuasive that the act has in- affected by it, and will lead to public Cyc 695).

duced insurance associations to com- and private abuses and consequent 63. In re Opinion of Justices, 209 bine and to place the rate of insur- evils more dangerous to the state Mass. 607, 96 NE 308.

at prohibitive figures.

than the evil that it is sought to 64. State v. Clausen, 65 Wash. 156, If proven,'it would not be controlling correct. But the courts are slow to 117 P 1101, 37 LRANS 466.

because: First, if the rates are made inquire into the mere wisdom of a 65. State Journal Work- prohibitive, the employer will

statute. This question is premen's Compensation Bd., 161 Ky. 562, ject the act, and there will be no eminently one for the law-making 170 SW 1166, LRA1916 A 389, AnnCas insurance taken. which will automat- branch of the government that the 1916B 1273.

ically lead extortioners to mend their courts will interfere only where there 66. Evanhoff State Industrial way to avoid killing the goose that

be no two opinions as to the Acc. Commn., 78 Or. 503, 154 P 106 'lays the golden eggs; second, there' mischievous and evil tendencies of

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Objections of this character are such as go to the provisions rendering claims for attorneys' and propriety of payments to aliens and nonresidents73 physicians' fees subject to the approval of an indusor to the fairness of the compensation provided trial accident board, provisions allowing employers for.74

and employees to enter into substitute schemes for Particular features. Particular features of the compensation in lieu of the compensation and insurvarious acts have been upheld generally in some of ance provided by the act, subject to the approval the cases without discussion of specific. constitu- of the industrial commissioner, and requiring that tional objections, such as a provision allowing the if the substituted scheme provides for contribution employee to elect, in case of an injury occasioned by the employees it must confer benefits in addition by a third person, to recover against his employer to those required by the act commensurate with such under the act or to proceed against the wrongdoer contributions, so the arbitration features,81 and the

76 and providing for the subrogation of the employer, provisions fixing the specific compensation to be a requirement that election must be made by the allowed.82 On the other hand, the provision of the employee at the time he enters into a contract of original Illinois act authorizing the supreme court hire whether he will claim his common-law right of to issue a writ of certiorari for the review of the action, a provision allowing a minor legally en- decisions of the industrial board was void as viotitled to work the same power of contracting with lating the constitutional limitation of the original reference to acceptance of the act as an adult," jurisdiction of that court.8 the act." State v. Clausen, 65 Wash. | ployer under part 2, for injuries | vision of the law which declares 156, 211, 117 P 1101, 37 LRANS 466. which occurred under circumstances that a minor who is legally entitled

73. Western Metal Supply Co. v. also creating a liability against a to work shall have the same power of Pillsbury, (Cal.) 156 P 491, 495.

third party:

In

such third contracting for service as an adult "It is urged that under the stat- party is also subject to the provi- is objectionable, because it allows ute the employer may be required to sions of part 2, the employee may the employer to decide whether the make payments to alien and non- either recover from his employer the law shall treat his minor employees resident dependents, and that no pub-relief prescribed by the act, or may as adults. The objection seems to us lic purpose cognizable by the Legis- bring an action against such third

fanciful and elusive. There is no lature of this state is to be served | party, but cannot proceed against claim that the legislature may not by requiring payments to such aliens both. If he proceed against the

endow minors with the right to and nonresidents. But this argu- third party, his recovery is limited make contracts otherwise lawful, ment is based upon altogether too to the relief prescribed by the act. and, if this be so, it seems to us narrow a view of the constitutional If he takes compensation from his to be the end of the discussion. Aflimitations upon legislative action. employer under the act, the employer

ter the minor is so endowed he beIf it may reasonably be thought that becomes subrogated to his right of

comes for the purposes of the act the best interests of the state, of the action against the third party and an adult, or at least on the same employers of labor, and of those may recover the aggregate amount

plane. No adult employee of a priemployed, as well as of the public payable to the employee with costs,

vate employer

elect to

and generally, are promoted by imposing disbursements

come reasonable at

under the act unless his employer upon the industry or the public the torneys' fees. In case such third

has first elected to do so. So the burden of industrial accident-and party is not subject to the provisions

employer has the power to decide some such theory lies at the bottom of part 2, the employee may maintain

whether any of his employees, inof all workmen's compensation stat- an action against him without waiv

fant or adult, shall have the priviutes (Western Indemn. Co. v: Pills- ing, any rights against the employer leges of the act if they continue to bury, 170 Cal. 686, 151 P 398)-the and the damages recoverable are not limited to the relief prescribed by

work for him. residence and citizenship of the in

This is practically jured workman, or (if he shall have the act; but if the employee recover

all there is of the matter, and we see from such third party, the employer

substantial distinction met death) of his dependents, are

between factors entirely foreign to the dis- is entitled to deduct, from the com

the effect of the law upon the adult and

its effect upon the cussion.

minor." The Legislature has deter- pensation payable by him under the mined that the employment of labor act, whatever amount is actually re

Borgnis v. Falk Co., 147 Wis. 327, in given pursuits entails upon the ceived by the employee from

363, 133 NW 209, 37 LRANS 489.

the third party. In other words, if a

79, employer certain responsibilities to

Mackin

Detroit-Timkin

Axle Co., 187 Mich. 8, 153 NW 49. wards the persons performing the sum equal to or exceeding the com

80. labor and

Hawkins v. Bleakley, 220 Fed. those dependent

pensation payable under the act is

upon them. There is no constitutional or actually collected from the

378, 381 (where the court said of the third

Iowa act: rational ground for limiting the party, the employer is relieved from

“Many of the states for benefits of this legislative scheme to liability, but if the sum actually col

many years have had statutes fixing citizens or residents of this state. If lected be less than the amount pay

the liability with precision in cases the employment was such as to fall able under the act, he must make

of death, and in no instance has any within the state's lawmaking juris- good the deficiency: If, instead of court held such statute invalid. And diction,

the Legislature certainly prosecuting an action against such why a statute cannot fix with cerhad the power to pass laws operating third party, the employee collects tainty the damages to be allowed in uniformly upon all persons affected compensation from his employer, the

case of the loss of an arm, leg, eye, by such employment.' Western employer becomes subrogated to the and counsel fail to state any legal

other injury, is not perceived, Metal Supply Co. v. Pillsbury, supra. rights of the employee against the 74. O'Connell v. Simms Magneto third party and may maintain an ac

or constitutional objection thereto"). Co., 85 N. J. L. 64, 89 A 922.

81. See tion against him for the recovery of

Hawkins v. Bleakley, 220 Fed. Ross Erickson Constr. Co., 89 the damages sustained by the em

378, 382 (where with reference to the Wash. 634, 646, 155 P 153 (where the ployee, but, after reimbursing him

Iowa act the court said: "The Chicourt said:

"It

may be asserted, self for the compensation payable to cago, Burlington & Quincy Railroad without doing violence to the rules the employee, and for the costs, at- Company for years had a scheme of of logic or of law, that whatever torneys' fees and expenses of col-insurance which, if resorted to by the sum is fixed for partial or total dis- lecting the damages, the employer injured employé, was a bar to reability is theoretically the exact sum must pay over to the employee any covery by an action in court. Finally necessary to measure and compen- surplus remaining of

the

amount that scheme was condemned by Iowa sate the wrong. The logic of our collected. We find nothing in these legislation, and the statute prohibitformer decision in Davis-Smith v. provisions contravening any of the ing it was sustained by the United Clausen, 65 Wash. 156, 117 P 1101, 37 provisions of the Constitution. They States Supreme Court, affirming the LRANS 466, is that the admeasure-apply to and bind only those who Iowa Supreme Court in Chicago, etc., ment of damages in money for inju- I have voluntarily accepted and agreed R. Co. v. McGuire, 219 U. S. 549, 31 ries to employees is within the police to them”).

SCt 259, 55 L. ed. 328, hereinbefore power of the state, and it is axio- 77. Young y. Duncan, 218 Mass. referred to. The insurance scheme matic that the court will not restrain 346, 106 NE 1.

was held lawful by the Iowa Supreme or enlarge upon the exercise of that 78. Borgnis v. Falk Co., 147 Wis.

Court in a number of cases prior to power. Nor will it substitute its | 327, 133 NW 209, 37 LRANS 489

the adoption of the legislation rejudgment for that of the legislature See Herkey V. Agar Mfg. Co., 90

ferred to. And now we have addiupon any question of fact arising Misc. 457, 153 NYS 369 (holding that

tional legislation allowing the very under it").

the legislature may remove the dis- thing condemned by the prior legis75. See cases in following notes. ability of infancy and allow an infant

lation. And so it is that no consti76. Mathison V. Minneapolis St. servant to elect whether to

pro

tutional objection can be made to the R. Co., 126 Minn. 286, 296, 148 NW 71, ceed at common law or under the latest legislation"); Shade Ash LRA1916D 412 (where the court said: Workmen's Compensation Act [Con

Grove Lime, etc., Co., 93 Kan. 257, "The section of the act most vigor-sol. L. c 67]).

144 P 219. ously assailed is section 33 (section [a] Reason for decision.-"Some

82. Shade v. Ash Grove Lime, etc., 8229, G. S. 1913) which provides for contention is made in the brief that Co., 93 Kan. 257, 144 P 249. cases in which the employee is en- minors cannot be treated in the same 83. Courter v. Simpson Constr. titled to compensation from his em- manner as adults, and that the pro- Co., 264 111. 488, 106 NE 350.

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ment, requiring the open administration of jusand well defined objections to the constitutionality tice,92 securing the right to all persons to obtain of legislation which will be discussed in the follow- justice without purchase, without denial, and withing paragraphs of this article,84 particular acts have out delay," guaranteeing the right to prosecute or been upheld as against the contention that they to defend a suit either in person or by an attorney were not enacted in the manner prescribed by the or agent of his choice,94 requiring laws relating to constitution,86 that they interfere with interstate courts and the proceedings and practice of all commerce,86 that they compel employers and em- courts of the same class to be uniform,95 limiting ployees to adjust their grievances without their courts to those provided for by the constitution,a6 consent,$7 that they change the existing laws with conferring jurisdiction on the federal courts of conrespect to the mutual obligations of parent and troversies between citizens of different states, child,88 or that they violate certain specific consti- inhibiting unreasonable searches and seizures, protutional provisions, such as provisions guaranteeing hibiting donations, loans, and gifts by the state to a republican form of government,89 providing for a individuals," inhibiting local or special acts,' redivision of governmental powers,securing to mu- quiring that private corporations be formed by gennicipal corporations the right of local self-govern- eral laws, prohibiting a common carrier from con84. See infra $$ 8-27.

municipalities, involves and touches the provision referred to. These 85.

See cases infra this note. on no right of local self-government restrictions in the act, as applied to [a] The Illinois act of 1911, L. or local control and management of those who submit to its provisions (1911) p 315,

not passed in corporate property, because in effect by election, certainly cannot be held violation of Const. art 4 $ 13, pro- it declares a new public purpose for unconstitutional"). viding that every bill and all amend- which taxes may be levied by the 95. Peo. v. McGoorty, 270 Ill. 610, ments thereto shall be printed before municipality, that is, to compensate 110 NE

791 (holding that, the the vote is taken on its final passage. | injured employees, and so does not writ of certiorari provided for by Nakwosas Western Paper Stock deprive the municipality of its prop- the workmen's compensation act is Co., 272 Ill. 138, 111 NE 515; Richard- erty, authorized by the constitution different from the common-law writ son v. Sears, 271 Ill. 325, 111 NE 85; to be held by it).

in which only a judgment quashing Lauruszka v. Empire Mfg. Co., 271 [a] Reasons for rule-(1) "The the proceeding can be rendered, the 11. 304, 111 NE 82; Frey v. Kerens- subject of the legislation which is whole matter is governed by the Donnewald Coal Co., 271 Ill. 121, 110 in question here is a social sub- statute, and hence the provision for NE 824; Przykopenski v. Citizens' ject, in its

very nature referable a writ of error to the supreme court, Coal Min. Co., 270 Ill. 275, 110 NE for community action to the state without allowing an appeal to the 336; Dragovich v. Iroquois Iron Co., itself. A social theory needed to appellate court, is not invalid). 269 Ill. 478, 109 NE 999. be crystallized into law. Its

96. Greene V. Caldwell, 170 Ky. 86. Stoll v. Pacific Coast SS. Co., ture was such that no community 571, 186 SW 648. 205 Fed. 169, 177.

less than the state could be appealed 97. Stoll v. Pacific Coast Ss. Co., "Congress having in no way legis- to for this purpose.

The theory of 205 Fed. 169. lated in the premises, at least so far this and of similar legislation in- [a] Reason for rule.-"This might as interstate commerce by water is cludes the essential idea that the be true if the right of action concerned, the state has the right to industrial worker is himself a social mained, but the above law has ended enact laws incidentally affecting in- asset and ought not, in any case, to the controversy between the parties. terstate commerce. This act does no bear the whole result of a personal The only controversy left, by the more. Stoll v. Pacific Coast SS, Co., injury arising out of and in the terms of this law, is one between the supra.

course of his employment; that so- plaintiff and the state as to the na87. Evanhoff v. State Industrial ciety at large ought to share the ture and extent of his injuries. Acc. Commn., 78 Or. 503, 154 P 106. loss. The subject is one of govern- These once established, the amount 88. Greene v. Caldwell, 170 Kymental control, of public policy, of his recovery is fixed.

The ques571, 186 SW 648.

necessarily committed to the Legis- tion then becomes of whether 89. State v. Mountain Timber Co., lature. Whether it is

is not there is any constitutional limitation 75 Wash. 581, 135 P 645.

denominated a police regulation, mu- a state's power to abolish the 90. Evanhoff V. State Industrial nicipal corporations are, for the pur-right of action; that is, whether it Acc. Commn., 78 Or. 503, 154 P 106 pose of carrying out such a measure, is taking liberty or property with(holding that L. (1913] c 112, creat- subject to legislative control." Wood out due process of law." Stoll v. ing a state industrial accident com- v. Detroit, Mich.) 155 NW 592, 596, Pacific Coast SS. Co., 205 Fed. 169, mission composed of three commis- | 597. (2) "Private corporations and 176. sioners charged with the administra- individuals exploit private capital.

Deibeikis Link-Belt Co., tion of the act, does not contravene Out of this, in the first instance, the 261 Ill. 454. 104 NE 211, AnnCas Const. art 3 g 1, declaring that the compensation of employés must be 1915A 241; State v. Mountain Timpowers of government shall be di- | paid. The burden thus assumed by ber Co., 75 Wash. 581, 135 P 645. vided into three separate depart- the employer must be distributed by 99, Lewis, etc., County v. State ments, the legislative, the executive his action in the course of his busi- Industrial Acc. Bd., (Mont.) 155 P —including the administrative-and ness. In the case of a municipal 268 (holding that L. (1915] c 96 is the judicial, and that no officer of corporation the burden assumed by it not in violation of Const. art 13 $ 1, any department shall exercise the as employer is distributed, immedi- since the inclusion of counties within functions of another).

ately and finally, upon

the

it does not contemplate charity but 91. Wood v. Detroit, Mich.) 155munity subject to be taxed to raise provides compensation for injuries). NW 592, 596 (holding that Pub. Acts the necessary fund. However that 1.

Greene V. Caldwell, 170 Ky. [Ex. Sess. 1912] No. 10, as amended may be, there is found in the imposi- | 571, 186 SW 648. by Pub. Acts [1913] No. 50, providing tion of the law upon municipal cor

2.

Middleton v. Texas Power, etc., that the state and each county, city, porations no invasion of private Co., (Tex.) 185 SW 556, 562 (where township, incorporated village, and rights, but only the enforcement of the court said of the provision of school district, and each incorporated a state policy which, in view of mu- the Texas statute concerning the public board or public commission in nicipal activities, ought to be uni- formation of the "Texas Employers' the state, authorized by law to hold formly accepted and observed by all Insurance Association": “The insurproperty and to sue or to be sued municipal corporations." Wood V. ance association created by the Act generally, shall constitute an emDetroit, supra.

is not a private corporation, and this ployer subject to the provisions of 92, Evanhoff. v. State Industrial part of the Act is not violative of the the act, is not violative of Const. Acc. Commn., 78 Or. 503, 154 P106. Constitution' in its provision that no art 8. $$ 20-24, providing generally 93. Mathison v. Minneapolis St. R. private corporation shall be formed that the legislature shall provide by Co., 126 Minn, 286, 148 NW 71, LRA except by general laws. Some such a general law for the incorporation 1916D 412.

agency as the insurance association of cities, that under such general law 94. Mackin V. Detroit-Timkin may be deemed as essential to the the electors of each city and village Axle Co., 187 Mich, 8, 26, 153 NW 49 efficient execution of the Act. It was shall have power to frame and to (where the court said of the pro- a way of giving effect to the plan as amend its charter and to pass all vision making attorney's and physi- a dependable method of providing laws and ordinances relating to mu- cian's fees in accident claims ad- the funds necessary for the payment nicipal concerns, that any city or vil- | justed under its provisions subject to employees of the compensation lage may acquire and maintain parks, to the approval of the industrial the Act is designed to afford. The hospitals, etc., and all works involv- accident board: "The Industrial Ac- association is very clearly only an ing the public health or safety, that cident Board is not, in contemplation agency for the proper administration subject to the constitution any city of law, a court, and a claimant be- of this law. It has no functions or or village may acquire and operate fore it for damages resulting from powers which it may exercise for public utilities, etc., and that when personal injuries is not strictly a any other purpose. It is denomia city or village is authorized to ac- suitor in any court,' but the right nated in the Act as a corporation, quire or to operate any such utility of a claimant to select and employ | but that may be regarded as a term it may issue bonds, since the com

attorney or agent to represent of convenience. Calling it a corporapensation act, in its application to him in the matter is recognized by tion does not make it a private cor

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tracting for relief from its common-law liability, pensation paid by agreement approved by the arbior requiring the presentation and allowance of tration board under the act is final and conclusive claims against the state treasury in a specified as to the measure of damages in an action by the manner. But the first Kentucky act was held in employer for the use of the insurer against a third violation of peculiar provisions of the Kentucky person whose act caused the injury,' that denial of constitution prohibiting the legislature from limit- the defense of assumed risk deprives the employer ing the amount of recovery for injuries resulting in of the right to show that the injury suffered by death or for personal injuries, and conferring an plaintiff was wholly due to his own negligence, and absolute right on the personal representatives of a that an unreasonably short time was given the emdecedent to recover for his death by wrongful act.5 ployer to elect whether to come under the act.20 Certain other objections have been dismissed as 10 7] B. Foundation on Police Power. By the based on an erroneous construction of the act in- great weight of authority workmen's compensation volved, as, for example, that a particular act de- acts are regarded as falling within the police power prives a parent of a right of action for injury to of the state'l and as referable thereto,12 it being his minor child, that proof of the amount of com- held that their tendency is to raise the general poration. Its character is to be de- gence, experience, skill and personal | beyond is the Constitution which, in termined by what it is, and not by characteristics, especially in respect substance and effect, forbids that a its name. St. Louis, etc., R. Co. v. of habits of attention and careful- citizen shall be penalized or subLevee Dist. Bd. of Directors, 103 ness, result in large numbers of in-jected to liability unless he has vioArk. 127, 145 SW 892; Beach V. dustrial accidents, notwithstanding lated some law or has been guilty of Leahy, 11 Kan. 23”). Compare Mem- the attempt by legislation and the some fault"). (2) After the constiphis Cotton Oil Co. v. Tolbert, (Tex. effort of humane employers to elimi- tutional amendment of 1913 (N. Y. Civ. A.) 171 SW 309 (where the nate them as far as is possible by Const. art 1 $ 19) the compulsory court held that if the Texas act

the use of safety appliances and insurance law of 1914, L. (1914) c 41, (Acts 33d Leg. C179) was invalid devices. On account of the charac

was enacted and sustained. Jensen on this ground the sections as to teristic imperfections of human v. Southern Pac. Co., 215 N. Y. 514, abrogation of defenses were left un- beings, accidents in no small number

528, 109 NE 600, LRA1916A 403, Ann impaired).

seem to be inevitable under the con- Cas1916B 276 (where the court said: 3. Greene Caldwell, 170 Ky. ditions existing in many forms of “Fortunately the courts have not 571, 186 SW 648.

present industrial employment. The attempted to define the limits of the 4. State v. McMillan, 36 Nev. 383, remedial relief afforded by the ordi- police power. Its elasticity makes 136 P108.

nary forms of litigation is uncertain progress possible under a written 5. State Journal Co. Work- and long delayed. If damages are constitution guaranteeing individual men's Compensation Bd., 161 Ky. 562, recovered, they

received, not

rights. The question is often one of 170 SW 437, 1166, LRA1916 A 389, Ann when the disability is suffered and degree. The act now before us seems Cas1916 B 1273.

the relief is most needed, but long to be fundamentally fair to both em[a] The act of 1916, L. (1916) afterwards, and then materially di-ployer and employee. Of course, I c 33, has been held not objectionable minished in amount as a necessary do not speak of details, which may in this regard, however, because of result of the effort to recover them.

or may not be open to criticism, but its provisions for election. Greene Undoubtedly for one reason or anv. Caldwell, 170 Ky. 571, 186 SW 648.

which, granting the validity of the other employés with

meritorious underlying principle, plainly 6. See cases infra notes 7-10. cases sometimes fail to recover dam

within the province of the legisla7. Mackin v. Detroit-Timkin Axle ages while, on the other hand, those

ture. It is not open to the objections Co., 187 Mich. 8, 26, 153 NW 49 with undeserving cases sometimes found to be fatal to the act consid(where the court said: “The act pro- succeed in doing so. In the common- ered in the Ives case. (Ives v. South vides for the damages of the minor. law action there is no set standard

Buffalo R. Co., 201 N. Y. 271, 94 NE It does not indicate that the par- as to the amount of damages recov

431 34 LRANS 162, AnnCas1912B ent's action for loss of services is erable, and sometimes great inequal- | 156').

It is plainly justified by the affected").

ity results in cases very similar in Grand Rapids Lumber Co. v.

amendment to our own State Constitheir facts. Under this system of

tution and the decisions of the Blair, (Mich.) 157 NW 29. litigation it seems clear that the

United States Supreme Court, not9. Hunter v. Colfax Cons. Coal great incidence of hardship and loss

ably in the Noble State Bank Case Co., (Iowa) 154 NW 1037. falls upon the employé, although at

(Noble State Bank v. Haskell, 219 10. Victor Chemical Works v. In- the same time it is often the source

U. S. 104, 31 SCt 186, 55 L. ed. 112, dustrial Bd., 274 111. 11, 113 NE 173. of injustice to the employer. Under

32 LRANS 1062, AnnCas1912 A 487], 11. U. S.-Raymond v. Chicago, it the court calendars have, of late

make it reasonably certain that it etc., R. Co., 233 Fed. 239 (Washing- years, been increasingly crowded

will be found by that court not to ton act); Stoll v. Pacific Coast. SS. with cases for the recovery of dam- be violative of the Constitution of Co., 205 Fed.. 169 (upholding Wash- ages for injuries suffered in indus

the United States"). ington statutė, L. (1911) p 345). trial accidents with,

12. Iowa.--Hunter v. Colfax Cons. Coal quence, an increased burden upon the

Western Indemn. Co. v. PillsCo., 154 NW

bury, 170 Cal. 686, 151 P 398; State 1037.

state in the matter of court Mont.--Cunningham V. Northwest- penses, and resulting

additional | 602, 39

v. Creamer, 85 Oh. St. 349, 97 NE ern Impr. Co., 44 Mont. 180, 119 Pdelay in disposing of other pending Texas Power, etc., Co., (Tex. Civ. A.)

LRANS 694; Middleton V. 554 (L. (1909] c 67, providing for cases. Legislation, therefore, which

178 SW 956. But see Deibeikis v. state industrial insurance and work- is in amelioration of such a condiman's compensation for injuries, in tion is a matter affecting the public

Link-Belt Co., 261 111. 454, 464, 104 case of employees engaged in coal welfare. Considering the subject in

NE 211, AnnCas1915A 241 (where the

court said mining within the state).

to with reference

L. its general aspects, if such legislaR. I.--Sayles v. Foley, 96 A 340 tion needs justification, it

"We are unable to see be

[1911) p 315:

can (Pub. L. (1912) c 831). amply supported and upheld as

where it can be contended that this Wash.--State v. Clausen, 65 Wash. proper exercise of the police power."

act is an attempt to exercise the 156, 117 P1101, 37 LRANS 466. Sayles v. Foley, (R. I.) 96 A 340, 342. / police, power. It will be observed See American Coal Co. v. Allegany [b] In New York (1) the compul

that the act is elective, and that no County Comrs., 128 Md. 564, 98 A 143 sory compensation act, L. (1910) employer or employee is compelled

to act (sustaining an for the estab- c 674, was held not sustainable under

accept or come within its prolishment of a fund for the relief of the police power.

Ives v. South Buf

visions unless he chooses to do so. employees injured in coal and clay falo' R. Co.. 201 N. Y. 271. 305, 94

Therefore, unless the employer or mining in two counties of the state). NE 431, 34 LRANS 162, Ann Cas1912B the employee elects to come within [a] Reason for rule.--"The con

156 (where the court said: “When the provisions of the act he is not ditions under which great numbers

industry or calling is per

affected by any of the provisions of persons, men, women and youth lawful and open to all, and, there- thereof. This is subject, however, of both sexes, largely entirely un- fore, beyond the prohibitive power of

to one exception. Under the condiacquainted with each other, and the legislature, the right of govern

tions specified in said section 1 an speaking perhaps different languages, mental control must be confined to employer is deprived of the common are assembled for the performance such reasonable enactments

law defenses of assumed risk, conof their work, often produce a situa- directly designed to conserve health, tributory negligence, and that the tion which renders some of the rec- safety, comfort, morals, peace and injury or death was caused, in whole ognized defenses of the employer to order. (Lochner v. New York, 198 or in part, by the negligence of a a common-law action unreasonable U. S. 45. 25 SCt 539, 49 L. ed.' 937, fellow-servant. To deprive an emand

unfair to the worker. These 3 AnnCas 1133.) For the failure of ployer, under such circumstances, of same conditions which bring to- an employer to observe such regula- the right to assert those defenses is gether, working in the presence of tions the legislature may unquestion

not an exercise of the police power, and about machinery often of a com- ably enact direct penalties or create but is merely a declaration by the plicated and dangerous character, presumptions of fault which, if not legislature of the public policy of not infrequently in an overheated rebutted by proof, may be regarded the State in that regard. The right atmosphere and amidst the noise and as sufficient evidence of liability for of the legislature to abolish these din of operating machines, large damages. That must be the extreme defenses cannot be seriously quesgroups of people of differing intelli- limit of the police power, for just ' tioned")

8.

as

a

conse

ex

a

an

se

as

are

16

over

causes

a

standard of the people;13 more specifically, by di- against the contention that they violate like prominishing the liability that injured workmen or visions of the various state constitutions.19 No distheir dependents will become public charges,14 and tinction is made in this regard when the employer

15 by the elimination of economic waste.

A com

affected is a municipal corporation.20 This objecpensation act is not invalid as a police regulation tion has perhaps been most frequently urged as because of the fact that it permits payment in a against those provisions of the statutes abrogating lump sum.

common-law defenses.21 [0 8] 0. Denial of Due Process of Law-1. In [09] b. Compulsory Acts. With regard to the General-a. Elective Acts. The elective?? or volun- validity of compulsory compensation acts22 as tary acts have been uniformly upheld as against the against the contention that they are in violation of contention that they violate the fourteenth amend- the fourteenth amendment to the federal constitument of the constitution of the United States for- tion, the courts have found more difficulty.28 Howbidding the depriving of any person of life, liberty, ever, both compulsory insurance acts24 and compulor property without due process of law,18 and as sory compensation acts with an optional insurance

13. Cunningham V. Northwestern | incontrovertible. The evil it seeks 86 N. J. L. 701, 91 A 1070] (Act April Impr. Co., 44 Mont. 180, 212, 119 P 554 to remedy is one that calls loudly 4, 1911 [P. L. p 134]). (where the court said: “That the for action. Accidents to workmen Oh.-State v. Creamer, 85 Oh. St. right to exercise police authority as engaged in the industries enumerated 349, 97 NE 602, 39 LRANS 694 (102 such

the operator arises, in in it are all but inevitable. It seems Oh. L. p 523). part at least, from the fact that he that no matter how carefully laws Or.-Evanhoff v. State Industrial is engaged in an extrahazardous for the prevention of accidents in Acc. Commn., 78 Or. 503, 154 P 106 business, which may, by reason of such industries may be framed, or (L. (1913) c 112). the liability of his employees to how rigidly they may be enforced, Tex-Middleton v. Texas Power, injury, therein, resulting in death or there is an element of human equa- etc., Co., 185 SW 556 [rev (Civ. A.) partial or permanent disability, tion that enters into the problem 178 SW 956, on question certified) cause them to become public charges, which cannot be eliminated and

(Acts (1913] c 179); Memphis Cotton thus lowering the standard of citi which invariably causes personal in- Oil Co. v. Tolbert, (Civ. Å.) 171 SW zenship and increasing the general juries and consequent financial losses 309. burden of taxation; and from the to workmen engaged therein. Here- Wis.-Mellen Lumber Co. v. Indusfurther fact that our present system tofore these losses have been borne trial Commn., 154 Wis. 114, 142 NW of common-law and statutory actions by the injured workmen themselves, 187, LRA1916A 374, AnnCas1915B greatly increases the expense of by their dependents, or by the state 997; Borgnis V. Falk Co., 147 Wis. maintaining our courts,

at large. It was the belief of the 327, 133 NW 209, 37 LRANS 489. vast economic waste, and tends to legislature that they should be borne 19. Kan.-Shade V. Ash Grove create breaches and dissensions be- by the industries causing them, or, Lime, etc., Co., 93 Kan. 257, 144 P tween employer and employee which perhaps more accurately, by the con- 249 (L. (1911] c 218, as amended by would otherwise not exist. (St. sumers of the products of such in- L. [1913) c 216). Louis Cons. Coal Co. v. Illinois, 185 dustries. That the principle thus Ky:-Greene v. Caldwell, 170 Ky. U. S. 203, 22 SCt 616, 46 L, ed. 872.) sought to be put into effect is eco- 571, 186 SW 648. The latter consideration is one per-nomically, sociologically, and morally Mass.-In re Opinion of Justices, taining to the peace, order, and sound, we think must be conceded. 209 Mass. 607, 96 NE 308 (St. [1911] morals of the community, which are It is so treated by the learned coun- C 751). universally recognized as subject to sel who have filed briefs in support Minn.--Mathison v. Minneapolis St. control and regulation by the state"). of the auditor's contentions; it is so R. Co., 126 Minn. 286, 148 NW 71,

14. Cunningham v. Northwestern conceded by all modern statesmen, LRA1916D 412. Impr. Co., 44 Mont. 180, 207, 119 P 554 jurists, and economic writers who Oh.-State v. Creamer, 85 Oh. St. (where the court said with reference have voiced their opinions on the 349, 97 NE 602, 39 LRANS 694 (102 to a statute applying only to coal subject; and the principle has been Oh. L. p 523). miners: “For the purposes of this enacted into law by nearly all of the Tex.-Middleton v. Texas Power, case, let us turn from its humani- civilized countries of Europe, by etc., Co., 185 SW 556 (rev (Civ. A.) tarian features, and suppose for the Australia, by New Zealand, by the 178 SW 956, on questions certified] moment that the sole object of the Transvall, by the principal provinces (Acts (1913) c 179); Memphis CotAct is to prevent persons injured in of the Dominion of Canada, and in a ton Oil Co. v. Tolbert, (Civ. A.) 171 coal mines, and their dependents, partial form at least by one or more SW 309. from becoming public charges of the South American Republics. Wis.- Borgnis V. Falk Co., 147 Viewed in this light, the private Indeed, so universal is the conception Wis. 327, 133 NW 209, 37 LŘANS benefits to be derived from the law that to assert to the contrary is to 489. may be disregarded, and its primary turn the face against the enlightened 20. Allen v. Millville, 87 N. J. L. object held to be one of public con- opinion of mankind. The common 356, 359, 95 A 130 (where the court cern solely. Moreover, it cannot be law does not purport to afford a rem- said that the contention seemed "aldoubted, we think, that the general edy for the condition here found to most frivolous in view of the well welfare of the state and its standing exist. It affords relief to an injured settled right of the legislature to among its sister states, as well as workman in only a limited number control municipalities as subordinate among persons generally, necessarily of cases; cases where the injury is legislative agencies"). including those who have money to the result of fault on the part of the 21. See infra § 12. invest, and those who seek

employer and there is want of fault 22. Compulsory acts defined see homes and new locations, depends in on the part of the workman. For supra $ 2. a great measure upon its industries the greater number of injuries trace

23.

See cases infra notes 24-27. and the class and welfare of its able to the dangers incident to in- 24. Raymond v. Chicago, etc., R. wageworkers. Any measure which dustry, no remedy at all is afforded. Co., 233 Fed. 239 (Washington act); tends to minimize indigency, of The act, therefore, having in its sup- Stoll V, Pacific Coast SS. Co., 205 necessity raises the general standard port these economic and moral con- Fed. 169 (Washington act); Stertz v. of the people; any statute which has siderations, is not unconstitutional State Industrial Ins. Commn., a tendency to reduce the present for the reasons suggested upon this (Wash.) 158 P 256; State v. Mounenormous expense of operating our branch of the argument").

tain Timber Co., 75 Wash. 581, 135 courts would seem to be, presump- 16. Cunningham v. Northwestern P 645; State v. Clausen, 65 Wash. tively, a proper exercise of the police Impr. Co., 44 Mont. 180, 119 P 554. 156, 117 P1101, 37 LRANS 466 and power").

17. Elective acts defined see supra note. See American Coal Co. v. Alle15. State V. Clausen, 65 Wash. $ 2.

gany County Comrs., 128 Md. 564, 156, 195, 117 P 1101, 37 LRANS 466 18. 111.- Deibeikis Link Belt 98 A 143 (sustaining an act for the (where the court said: "If, there- Co., 261 Ill. 454, 104 NE 211, Ann establishment of a fund for the refore, the act in controversy has a Cas1915A 241 (L. (1911) P 315). lief of employees injured in coal and reasonable relation to the protection Iowa.-Hunter V. Colfax Cons.clay mining in two counties of the of the public health, morals, safety Coal Co., 154 NW 1037.

state). or welfare, it is not to be set aside Kan. --Shade v. Ash Grove Lime, [a] Application to injuries caused because it may incidentally deprive etc., Ço., 93 Kan. 257, 144, P. 249 (L by stranger-"Nor can we see that. some person of his property without [1911) 218,

as amended

by L. under the constitutional objection of fault or take the property of one (1913) c 216).

due process of law, the complaint of person to pay the obligations of an- Ky:-Greene v. Caldwell, 170 Ky the employer is sounder when he other. To be fatally defective in 571, 186 SW 648.

pays for injuries caused by the medthese respects, the regulation must Mass.-In re Opinion of Justices.dling of a stranger on the premises be so utterly unreasonable and so 209 Mass, 607, 96 NE 308 (St. (1911] than when he pays for injuries from extravagant in nature and purpose C 751),

a perfect machine. The question is as to capriciously interfere with and Minn.-Mathison v. Minneapolis St. one of degree and often of small destroy private rights. That the R. Co., 126 Minn. 286, 148 NW 71, degree. For that the master should statute here in question has the LRA1916D 412.

have every possible inducement to attribute of reasonableness, rather N. J.-Sexton v. Newark Dist. Tel. shield his workmen at their tasks than that of capriciousness, seems Co., 84 N. J. L. 85, 86 A 451 (aff | from the meddling of third persons

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