mentally unjust, the question whether the award shall be measured as compensatory damages are measured at common law, or according to some prescribed scale reasonably adapted to produce a fair result, is for the State itself to determine." And we see no constitutional reason why a State may not, in ascertaining the amount of such compensation in particular cases, take into consideration any substantial physical impairment attributable to the injury, whether it immediately affects earning capacity or not. For the reasons thus outlined, it was not unreasonable, arbitrary, or contrary to fundamental right to embody in the New York Workmen's Compensation Law a provision for a special allowance of compensation for a serious disfigurement of the face or head. Nor is there any ground for declaring that the allowance prescribed by the 1916 Amendment exceeds the constitutional limitations upon State power. Whether an award for such disfigurement should be made in combination with or independent of the compensation allowed for the mere inability to work is a matter of detail for the State to determine. The same is true of the question whether the compensation should be paid in a single sum, or in instalments. Arizona Employers' Liability Cases, 250 U. S. 400, 429. Judgment affirmed. Mr. Justice MCREYNOLDS dissents. F. ADMIRALTY OR MARITIME JURISDICTION, § 2, GRS. 8, 10 By the very close vote of five to four the Supreme Court of the United States held invalid groups 8 and 10 of section 2 of the New York Workmen's Compensation Law, which cover seamen, longshoremen, etc.: Southern Pacific Co. v. Jensen, 244 U. S. 205, May 21, 1917 (Bulletin 87, pages 320-348). It found these groups to be in conflict with the admiralty law of the United States. Congress undertook to remedy the situation created by this Supreme Court decision and to revive groups S and 10 by amending the United States Judiciary Code so as to except from the exclusive jurisdiction conferred by the Code upon the Federal District Courts "the rights and remedies under the workmen's compensation law of any state." The congressional amendment became law October 6, 1917. In its turn it, too, has come under challenge as unconstitutional and has been sustained as effective for its purpose by the New York Court of Appeals: Stewart v. Knickerbocker Ice Co., 226 N. Y. 302, Apr. 29, 1919. Full text of the opinion of the Court of Appeals is presented below, page 247. Stewart's employer has taken an appeal to the United States Supreme Court which is now pending (February, 1920). These later developments call for careful restudy of the majority and minority opinions of the Supreme Court of the United States in the Jensen case. They bring into question the legislative powers not only of the state legislatures, but of Congress, relative to admiralty law in general and relative to industrial accidents happening upon navigable waters in particular. Does the majority opinion in the Jensen case hold state legislation for compensation of industrial accidents in admiralty to be in conflict with the Constitution of the United States, not only as the constitution is expressed in the United States Judiciary Code, but independently of anything that said code may or may not provide? Is enactment of a federal compensation law for scamen, longshoremen and others liable to injury upon navigable waters the only way to solve the constitutional problem? In his brief for the claimants in the Stewart case, the Attorney-General of New York has called attention to the opinion and decision of Federal District Judge Hand, in Steam Lighter Howell (U. S. Dist. Ct., Southern Dist. of N. Y., Mar. 6, 1919). Judge Hand says that the congressional act of October 6, 1917, not only revives groups 8 and 10, but nullifies the remedy in admiralty as concerns industrial accidents occurring upon or in connection with the navigable waters of New York. He holds that no constitutional limitations forbid the Federal Congress to submit the rules of the sea "not only to existing state laws, but to possible future changes determined only by the will of the States." He finds the United States Judiciary Code amendments valid under the Fifth Amendment to the Constitution of the United States. Full text of his opinion appears below, page 251. G. LEGISLATIVE ACT COVERING COMPENSATION OF INDIVIDUAL STATE EMPLOYEE By legislation of 1916, 1917 and 1918, groups 43, 44 and 45, covering compensation of state employees for industrial accidents, have been added successively to § 2 of the Workmen's Compensation Law. They cover all employments enumerated in the preceding forty-two groups and also keepers, guards, nurses or orderlies of state penal, reformatory and charitable institutions and certain outdoor employees engaged in state conservation and engineering work. Notwithstanding the addition of these three groups, an industrial accident that is beyond the compensation law's coverage may now and then occur to an employee of the State. To meet the state's moral obligations relative to such accidents and accidents happening prior to the addition of the three groups, the legislature may pass acts limited to individual cases, declaring them compensatable and authorizing the State Industrial Commission to pass upon them, as for example, L. 1917, ch. 33, and L. 1918, chs. 598, 599, or referring them to the State Court of Claims for adjudication, as for example, L. 1918, chs. 608, 609, 614, and L. 1919, chs. 564, 568. The Attorney-General has sustained the constitutionality of acts thus conferring jurisdiction upon the Commission by an opinion of January 25, 1917, the text of which is in Bulletin 87, pages 42, 43; the courts, with opinion, have sustained the constitutionality of acts thus conferring jurisdiction upon the Court of Claims, December 28, 1917, and April 2, 1918, in Munro v. State of New York, 181 App. Div. 30; 223 N. Y. 208. In the Munro case, the Court of Appeals overrules objections that the acts in question violate state constitutional provisions prohibiting the legislature from auditing or allowing private claims or claims barred by lapse of time, from giving state money for private undertakings or in the exercise of gratitude or charity, and from appropriating state money by less than a two-thirds vote. In basing its approval of the acts as constitutional upon "the moral obligation or the equity arising out of the facts," the court said: MUNRO V. STATE OF NEW YORK, 223 N. Y. 208, Apr. 2, 1918, in part. The equity or justice of a claim which the State may recognize is not limited by any law that I can find to personal injuries arising out of negligence as defined in the law at any given time. Negligence as a basis for liability, especially as applied to the relationship of master and servant, has been constantly changing and expanding under statutory enactment. Thus, we have had our employers' liability statutes, both state and federal, and at last the Workmen's Compensation Act making personal injury a risk of the business irrespective of negligence. Can it be that the legislature may place liability upon the employer irrespective of negligence, and that the state itself cannot recognize as a just and equitable obligation a personal injury received by one of its employees unless some legal principle the application of which has now been abolished would have created liability in an individual or corporation? When a man gives his services or his property to the State under such circumstances that no liability would be created to pay therefor, even if the state were an individual or a private corporation, the legislature may allow such a claim in good morals and fair dealings. (See cases cited above.) Why should there not be a like moral obligation to make some recompense to the man who in his work for the state by an unforseen accident has given his life or limb? The moral obligation may be as urgent in the one instance as the other. |