by plaintiff actually occurred. To so hold would be to invade the province of the Commission, and assume to pass upon questions upon which the law says the judgment of the Commission shall be final and conclusive. Plaintiff's counsel calls our attention to the following authorities and claims for them some relevancy to the question presented here: Bethlehem Shipbuilding Corp. v. Industrial Accident Com., 181 Cal. 500, 185 Pac. 179, 7 A. L. R. 1180; Great Western Power Co. v. Pillsbury et al., 171 Cal. 69, 151 Pac. 1136, L. R. A. 1916A, 281; Santa v. Ind. Accid. Com., 175 Cal. 235, 165 Pac. 689; Dickson v. Hollister, 123 Pa. 421, 16 Atl. 484, 10 Am. St. Rep. 533. It is sufficient to say that these cases do not in any respect tend to support plaintiff's contention. the contrary, they appear to be cases in which the appellate court felt bound to sustain the findings of the lower tribunal, notwithstanding in some instances they were exceedingly close to the boundary line. On The order of the Commission, denying the plaintiff's application for compensation is affirmed. Corfman, C. J., and Weber, Gideon, and Frick, JJ., concur. LEVA v. UTAH FUEL CO. ET AL. (No. 3667.) (Supreme Court of Utah. July 1, 1921.) 199 Pacific Reporter, 659. 2. CONSTITUTIONAL LAW-MASTER AND SERVANT-ELECTIVE PROVISIONS OF COMPENSATION ACT VALID. The provision of the Industrial Commission Act (Comp. Laws 1917, § 3133), declaring that, if an employee entitled to compensation be injured or killed by the negligence or wrong of another not in the same employ, such injured employee or his dependents shall, before making any suit or claim, elect whether to take compensation under the act or pursue his remedy against such third person, and if the employee or dependents take compensation the cause of action shall be assigned to the state for benefit of the insurance fund, if compensation be payable therefrom, or otherwise to the person liable for the payment of such compensation. etc., is valid, and was not open to attack on the theory that it impaired the obligation of the contract of employment, in violation of Const. U. S. art. 1, § 10, and Const. Utah, art. 1, § 18, for. aside from the act itself the employee has no right, in case of injury by a third person. to compensation from the employer. (For other cases, see Constitutional, Law Dec. Dig. § 154[1]; ter and Servant, Dec. Dig. § 347.) Mas Original proceeding by Charles Leva against the Utal Fuel ComCommission denying the claim of petitioner against the fuel company, Order of Commission affirmed. Thos. F. Adeworth, of Salt Lake City, for plaintiff. Gen., GIDEON. J. Plaintiff asks a review of the findings and order of the Industrial Commission made upon application by him against the defendant Utah Fuel Company. Plaintiff was injured on September 11, 1920. while in the employ of the fuel company. which is a self-insurer. Among other things. the Commission found: That the injury was received on September 11. 1920; that on that date the app'icant left the mine of defendant company, went to the washhouse, from there under the coal tipple down a path over Price river, and was injured on the right of way of the Denver & Rio Grande Railway Company's track by a switch engine. The Commission also found that the applicant made claim against the railway company for the injuries sustained. and was paid by that company the sum of $1.500; that the injury for which he received compensation from the railway company was the same injury upon which this claim is founded; that before making claim against the railway company applicant did not elect whether to take compensation under title 49. Comp. Laws Utah 1917, as amended. or to pursue his remedy against the railway company; that the applicant compromised and adjusted his claim against the railway company for an amount less than the compensation provided for under said title 49. commonly known as the Industrial Commission Act; that claimant did not have the written approval of the insurer to make settlement with the railway company. As conclusions. the Commission found that the applicant sustained injury by the negligence or wrong of another, not his employer; that he did not comply with section 3133 of title 49 in compromising and adjusting his c'aim against the railway company and did so without securing the written consent of the fuel company. For such reason the Commission was of the opinion that it had no jurisdiction. and that the claim should be de nied. Said Section 3133 Comp. Laws Utah 1917, being a part of title 49. reads as follows: "If an employee entitled to compensation under this title be injured or killed by the negligence or wrong of another not in the same employ. such injured employee, or, in case of death, his dependents, shall. before any suit or claim under this title, elect whether to take compensation under this title or to pursue his remedy against such other. Such election shall be evidenced in such manner as the Commission may by rule or regulation prescribe. If he elect to take compensation under this title, the cause of action against such other shall be assigned to the state for the benefit of the state insurance fund, if compensation be payable therefrom. and otherwise to the person or association or corporation liable for the payment of such compensation, and if he elect to proceed against such other. the state insurance fund. person, or association. or corporation. as the case may be, shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compensation provided or estimated by this title for such case. Such a cause of action assigned to the state may be prosecuted or compromised by the Commission. A compromise of any such cause of action by the employee or his dependents at an amount less than the compensation provided for by this title shall be made only with the written approval of the Commission. if the deficiency of compensation would be payable from the state insurance fund, and otherwise with the written approval of the person, association, or corporation liab'e to pay the same." [1.2] It is the contention of the plaintiff that the provisions of the foregoing section denying the right to an injured employee to receive compensation in the event of injury by the negligence or wrong of any one except the employer unless such injured employee complies with the other provisions of the section are unconstitutional, as being in con41 Vol. VIII-Comp. travention of article 1. § 10. of the Constitution of the United States. prohibiting any state from enacting a law impairing the obligations of contracts; also of article 1, § 18, of the state Constitution, relating to the impairment of contracts. In what way or for what reason the section quoted is in conflict with those constitutional provisions is not pointed out, or attempted to be. by counsel for plaintiff. We assume that his theory is, and must be, that plaintiff's right to have an award under the Industrial Commission Act is found upon contract growing out of his employment, and that the Legislature is without authority to annul or abridge such right. The right of an employee to be awarded compensation under the Industrial Commission Act is not dependent upon the negligence or wrong of his employer. The right is determined by the fact of his employment at the time of the injury. or whether the injury arose in the course of his employment. Moreover, the plaintiff is attacking the constitutionality of the very law under which he claims compensation. This he is not in a position to do. Swing v. Kokomo Steel & W. Co. (Ind. App.) 125 N. E. 475: Mellen Lumber Co. v. Ind. Com. of Wisconsin. 154 Wis. 114. 142 N. W. 187. L. R A. 1916A, 347, Ann. Cas. 1915B, 997. Let it be conceded. however. that by reason of the employment the Industrial Commission Act creates a contractual right of the employee to be awarded compensation for an injury received from a third person not in any way connected with the employment. It must necessarily follow that the injured employee claiming the right thus assured him must conform to the requirements contained in the act to entitle him to receive the compensation therein provided. In this case the injury is in no way the result of the negli gence or wrong of the employer. The accident did not happen while the plaintiff was upon the premises of the employer. Any right pla'ntiff could have against his employer must result from a duty imposed upon the employer by the terms of the Industrial Act. That act proscribes the procedure or method by which an award can be made to the injured employee. It is therefore incumbent upon such employée, under facts such as are disclosed by this record, to comply with the provisions prescribed by which he can obtain relief. The section quoted provides that before any suit or claim is made by a claimant he must elect whether to take compensation under this title or to pursue his remedy against such other. It appears without dispute that the applicant has not brought himself within the provisions of the statute under which he claims. The Commission was justified in refusing to take jurisdiction, and in refusing to make an award and in denying plaintiff's application. The order of the Commission is therefore affirmed. Corfman, C. J., and Weber, Thurman, and Frick, JJ., concur. SALT LAKE CITY v. INDUSTRIAL COMMISSION OF UTAH. (No. 3695.) (Supreme Court of Utah. June 11, 1921.) 199 Pacific Reporter 152. 1. CONSTITUTIONAL LAW-MASTED AND SERVANT-WORKMEN'S COMPENSATION STATUTE HELD NOT UNCONSTITUTIONAL AS DENIAL OF EQUAL PROTECTION OF LAWS, NOR AS TAKING OF PROPERTY WITHOUT DUE PROCESS. Comp. Laws 1917, § 3140, subd. 1, as amended by Laws 1919, c. 63, provides that an employer not insured in the state insurance fund, on the death of an employee without dependents, shall pay into the state insurance fund $750, to be used, as provided by subdivision 6, for payment of extra compensation in cases of permanent partial disability incurred after a previous permanent partial disability resulting in combined injuries requiring greater compensation than would be payable for the latter injury, except for the pre-existing disability. Held, that the statute is not a denial of the equal protection of the laws as discriminating in favor of the state insurance fund and the employers insured thereby as against other insurance carriers and employers within the act, nor is it a taking of property without due process of law.* (For other cases, see Constitutional Law, Dec. Dig. §§ 245, 301; Master and Servant, Dec. Dig. § 347.) Proceedings under the Workmen's Compensation Law by the father and mother of Asa H. Hancock, employee, deceased, against Salt Lake City to recover compensation for decedent's death. The Industrial Commission of Utah made an award, and the City brings certiorari. Order affirmed. W. H. Folland, City Atty., and James H. Wolfe, both of Salt Lake City, for plaintiff. Harvey H. Cluff, Atty. Gen., and John Robert Robinson, Asst. Atty. Gen., for defendant. THURMAN, J. The facts alleged in plaintiff's brief tend to show that on July 12, 1920, one Asa H. Hancock was a regularly employed member of the fire depatment of plaintiff, and that on that day he was accidentally killed in the course of his employment. Proceedings were had for compensation before the defendant Industrial Commission (hereinafter called Commission) on the part of the father and mother of deceased, claiming to be his dependents. The Commission found, among other things, that plaintiff was an employer and self-insurer subject to the provisions of the Utah Industrial Act, and that deceased left no dependents. The Commission ordered that plaintiff pay into the state treasury the sum of $750 and reasonable funeral expenses, not exceeding the sum of $150, in accordance with the provisions of the statute hereinafter quoted. The case is before us on a writ of certiorari to review the proceedings. Some contention was made in plaintiff's brief to the effect that the proceedings before the Commission were not had under the Industrial Act, but under the firemen's pension fund, that plaintiff was not a party to said proceedings, and that therefore the Commission was without jurisdiction to make the order. This contention has since been waived by stipulation. [1] Plaintiff contends, however, that the Commission acted without and in excess of its jurisdiction, because the statute in pursuance of which the order was made is unconstitutional for the following reasons: (1) That it is a denial of the equal protection of the laws; (2) that it is a taking of property without due process of law. Comp. Laws Utah 1917, § 3140, subd. 1, as amended in Sess. Laws 1919, p. 163, is the statute against which the constitutional objection is raised, and reads as follows: 'American Fuel Co. v. Ind. Com., 187 Pac. 633, 8 A. L. R. 1342; Scranton Leasing Co. v. Ind. Com., 51 Utah, 368, 170 Pac. 976; Ind. Com. v. Evans, 52 Utah, 394, 174 Pac. 825: Garfield Smelting Co. v. Ind. Com., 53 Utah, 133, 178 Pac. 57. "If there be no dependents, the employer or insurance carrier shall pay the burial expenses of the deceased, as provided herein, and shall pay into the state treasury the sum of $750.00 unless the employer is insured in the state insurance fund. Such payments shall be held in a sp c'al fund for the purposes provided in subdivision 6 of this section. The state treasury shall be the custodian of this special fund and the Commission shall direct the distribution thereof." Subdivision 6 of the same section, referred to in subdivision 1, states the purpose for which the payment is exacted and is pertinent in this connection: "If any employee who has previously incurred permanent partial disability incurs a subsequent permanent partial disability such that the compensation payable for the disability resulting from the combined injuries is greater than the compensation which except for the pre-existing disability would have been payable for the latter injury, the employee shall receive compensation on the basis of the combined injuries, but the liability of his employer shall be for the latter injury only and the remainder shall be paid out of the special fund provided for in subdivision 1 of this section." In its contention that the statute is a denial of the equal protection of the laws, plaintiff's principal grievance seems to be the apparent discrimination in favor of the state insurance fund and the employers insured thereby as against other insurance carriers and employers within the act. The plaintiff, as an employer under the act, had the choice of any one of three methods of insurance: (1) By insuring in the state insurance fund; (2) by insuring in a stock corporation or mutual association; (3) by carrying its own insurance. Comp. Laws Utah 1917, § 3114. A fourth method was also available to plaintiff, subject to the approval of the Commission, namely, by entering into an agreement with its employees as provided in section 3124 of the same compilation. By insuring in the state insurance fund plaintiff would have avoided the liability in question, but of its own volition it elected to become a self-insurer. It must be conclusively presumed that plaintiff did so with full knowledge of the contingent liability of which it now complains. It must also be presumed that, notwithstanding such contingent liability, plaintiff believed it would be to its advantage to carry is own insurance. In such case it would be relieved of the payment of premiums to another insurance carrier, and would only be subjected to the payment of such compensation as may become due its employees under the terms of the act. If no accident occurred, no payment would be required. In these circumstances defendant contends that, having obtained these advantages by electing to carry its own insurance, and the contingent liability it assumed having now become a fixed obligation, plaintiff should not be permitted to say that the law which fixes the obligation is unconstitutional in that it is a denial of the equal protection of the laws. In support of this contention it relies on a line of decisions practically uniform in holding that, where an employer has the right to elect whether or not he will come within the provisions of the Workmen's Compensation Act, and elects so to do, he will not be permitted to question the constitutionality of the act. Many such cases will be found in the note to Jensen v. Sou. Pac. Co., L. R. A. 19164, at page 414, to which we refer the reader. It is not at all clear to the writer that these cases are applicable to the question presented here. They seem to fall within the principle, from which, as far as we are advised, there is no dissent, that where a party voluntarily accepts the provisions of an unconstitutional law and becomes a beneficiary thereof, he cannot deny its constitutionality nor be relieved from its onerous conditions. The following cases are typical illustrations of the principle: Grand Rapids Ry. Co. v. Osborn, 193 U. S. 17, 24 Sup. Ct. 310, 48 L. R. A. 598, and Daniels |