question is material for the reason that if the act be constitutional it may be followed in the Federal courts in cases that are within its provisions. So far as private rights of action are preserved, this is no doubt true; but with respect to those we find nothing in the act that excludes a trial by jury. As between employee and employer, the act abolishes all right of recovery in ordinary cases, and therefore leaves nothing to be tried by jury." The Iowa statute is elective, instead of compulsory, and the Supreme Court, in addition to saying that jury trial is not one of the rights secured by the fourteenth amendment, held election to be a waiver of the right, though the State was at liberty either to abolish or limit such right if it saw fit so to do. (Hawkins v. Bleakly, 243 U. S. 210, 37 Sup. Ct. 255.)

An objection found by the circuit court that declared the law of Hawaii unconstitutional was that the law deprived one of the right of trial by jury, which was said to be guaranteed to the citizens of Hawaii by a specific provision enacted by the Federal Government, which "can not be ignored or set aside by the Territorial legislature." It was held not to be sufficient that there might be an appeal to the circuit court, with a trial by jury, following the award, since the matters that might be carried up on such an appeal were limited, and the jury would have no authority to determine the amount of damages or the compensation to be awarded. The decisions of the Supreme Court of the United States were noted, but it was held that local constitutional differences made it impossible for these decisions to be followed. The Supreme Court of the Territory ruled, however, that the provision guaranteeing jury trials related only to actions at common law and that there was no necessity for a jury in compensation proceedings, where the benefits are fixed by the statute, and upheld the law.

LIABILITY WITHOUT FAULT.

The establishment of the principle of liability without fault was strongly criticized by the appellant railroad company in the New York case before the Supreme Court (New York Central R. Co. v. White), due, presumably, to the fact that the earlier New York statute had been declared unconstitutional by the court of appeals of the State largely, and perhaps chiefly, on the ground that it charged the employer with liability without fault. (Ives v. South Buffalo R. Co., 201 N. Y. 271, 94 N. E. 431.) It was held that the establishment of a compulsory system relating to hazardous employments was not an unreasonable or arbitrary application of legal principles, since the undertaking is one in which the workman is engaged by mutual consent of employer and employee in an operation intended to be advantageous to both. Considering the probability of physical injury or

loss of life through industrial accident, entailing the loss of selfsupport, and in fatal cases depriving widow and orphans of their natural protection. it was held to be but reasonable on grounds of natural justice that there should be a contribution in reasonable amount, according to a reasonable and definite scale, by way of compensation for the loss of earning power-" that which stands to the employee as capital in trade"-incurred in the common enterprise, and that without regard to the question of negligence or fault. As an offset to this responsibility, it is pointed out that the employer is relieved from a liability for damages rated by common-law standards, and payable only in cases where fault is proved. "Nor can it be deemed arbitrary and unreasonable, from the standpoint of the employee's interest, to supplant a system under which he assumed the entire risk of injury in ordinary cases, and in others had a right to recover an amount more or less speculative upon proving facts of negligence that often were difficult to prove, and substitute a system under which, in all ordinary cases of accidental injury, he is sure of a definite and easily ascertained compensation, not being obliged to assume the entire loss in any case, but in all cases assuming any loss beyond a prescribed scale."

While the loss is primarily laid upon the employer, it "is a loss arising out of the business, and, however it may be charged up, is an expense of the operation, as truly as the cost of repairing broken machinery or any other expense that ordinarily is paid by the employer."

It was added "that liability without fault was not a novelty in the law. The common-law liability of the carrier, of the innkeeper, of him who employed fire or other dangerous agency or harbored a mischievous animal, was not dependent altogether upon questions of fault or negligence. Statutes imposing liability without fault have been sustained." (Cases cited.)

While the question was apparently not raised in this specific form in the consideration of the Washington statute, the point was clearly covered in the ruling that the levying of a tax on all employers in an industry, regardless of the occurrence or nonoccurrence of accidents in their particular establishments during any given period, was neither arbitrary nor unreasonable.

ABROGATION OF EMPLOYERS' DEFENSES.

Despite the uniform rejection by the courts of the contention that an abrogation of the common-law defenses is unconstitutional, the point was raised in the cases before the Supreme Court already cited. In discussing the New York case the defenses of fellow service, assumption of risks, and contributory negligence were taken up sepa

rately, and briefly discussed, the conclusion being that "It is not necessary to extend the discussion. This court has repeatedly upheld the authority of the States to establish by legislation departures from the fellow-servant rule and other common-law rules affecting the employers' liability for personal injuries to their employees." (Cases cited.) This position is not to be interpreted as warranting a sudden setting aside of all common-law rules respecting the employer's liability without providing a reasonably just substitute. "The statute under consideration sets aside one body of rules only to establish another system in its place. *** The act evidently is intended as a just settlement of a difficult problem, affecting one of the most important of social relations, and it is to be judged in its entirety."

The Washington law, of course, eliminates the entire subject of defenses by eliminating the right of action for damages; while in the Iowa law a qualified right remains, dependent upon the attitude of employer and employee, respectively, as accepting or rejecting the act. When the employer rejects, under the Iowa statute, he is deprived of these defenses whether the employee has accepted or rejected, whereas if he accepts the law, and the employee alone rejects, all defenses are retained by the employer in any suit brought. "We can not say that there is here an arbitrary classification within the inhibition of the 'equal protection' clause of the fourteenth amendment. All employers are treated alike, and so are all employees; and if there be some difference between employer and employee respecting the inducements that are held out for accepting the compensation features of the act, it goes no further than to say that, if neither party is willing to accept them, the employer's liability shall not be subject to either of the several defenses referred to. As already shown, the abolition of such defenses is within the power of the State, and the legislation can not be condemned when that power has been qualifiedly exercised, without unreasonable discrimination."

CLASSIFICATION.

The New York statute applies to an extensive list of employments classed as hazardous, and some objection was raised, though not pressed, that in excluding farm laborers and domestic servants from the scheme, there was a violation of the "equal protection" clause of the fourteenth amendment. "But, manifestly, this can not be judicially declared to be an arbitrary classification, since it may reasonably be considered that the risks inherent in these occupations are exceptionally patent, simple, and familiar."

The Washington statute resembles that of New York in the matter of its declared scope, using, however, the term "extrahazardous," but permits joint election of employers and employees in undertakings not so classed. Classifications of the included industries are also provided for on the basis of the hazard of the occupation, for the purpose of distributing the burden of compensation in proportion to relative hazard. The Supreme Court cited its opinion in the New York case as presenting grounds sufficient to support the view that such laws are not to be regarded as arbitrary and unreasonable from the standpoint of natural justice, and that the State of Washington was warranted "in concluding that the matter of compensation for accidental injuries with resulting loss of life or earning capacity of men employed in hazardous occupations is of sufficient public moment to justify making the entire matter of compensation a public concern, to be administered through State agencies." Industrial occupations that frequently and inevitably produce personal injuries may be regulated by the State, and the human losses charged against the industry either directly, as under the New York law, or by publicly administering the compensation through a reasonable system of occupational taxes as in the Washington law; and the act can not be deemed oppressive to any class of occupation so long as the scale of compensation is reasonable.

In the hearing on the constitutionality of the Hawaiian law it was objected that the rulings of the Supreme Court of the United States could not be taken as precedents, inasmuch as the law of the Territory is neither limited to hazardous employments, as in New York, nor are benefits payable from a common fund, as in Washington. The court held, however, that laws making classifications of industries are sustainable, not on account of such classifications, but in spite of them; and that the constitutionality of the statute was not dependent upon the system adopted for the payment of benefits.

Not unlike the foregoing were the principal objections raised to the constitutionality of the law of Alaska (Johnston v. Kennecott Copper Corporation (C. C. A., 1918), 248 Fed. 407), in which it was claimed that an improper classification had been attempted in the enactment of a law applicable only to mining and related operations, and, further, only to establishments employing five or more persons. The act was held to apply in a uniform manner to all persons similarly situated, and to be a proper exercise of the legislative discretion. Another objection was that the act provides no system of insurance and no provision for the payment of compensation. The court pointed out that there were certain regulations for the security of payments, amounting to the substitution of one system or set of rules for the one set aside by the act, and quoted from the decision of the Supreme Court in its consideration of the New

York law; and following this and other decisions of the Supreme. Court sustaining compensation legislation, the Alaska statute was upheld throughout.

EXERCISE OF JUDICIAL POWERS.

The status of the administrative bodies provided for by the laws under consideration was not considered, except in a general way, by the Supreme Court in the cases noted above, though their authority was, of course, assumed in so far as the validity of awards made without jury trial was upheld. The court of last resort of Massachusetts, however, defined the industrial accident board of that State as being not a court of general or limited common-law jurisdiction, but solely an administrative tribunal, created to administer the compensation law in aid and with the assistance of the superior courts. The essential prerequisites of the act as prescribed by itself must be observed, and the authority of the board can not be enlarged or diminished by express consent or waived by acts of estoppel. (In re Levangie, 117 N. E. 200.)

FREEDOM OF CONTRACT.

Considerable stress was laid by the appellants in the White case upon the effect of the New York law in depriving the parties to the labor contract of their constitutional rights of freedom in the making of contracts to render service or to employ labor, citing declarations made by the Supreme Court in recent cases (Coppage v. Kansas, 236 U. S. 1, 35 Sup. Ct. 240; Truax v. Raich, 239 U. S. 233, 36 Sup. Ct. 7) in which certain laws were held unconstitutional as interfering with the right of personal liberty involved in the making of contracts for employment. As to this the court said "it is not our purpose to qualify or weaken either of these declarations in the least, and we recognize that the legislation under review does measurably limit the freedom of employer and employee to agree respecting the terms of employment, and that it can not be supported except on the ground that it is a reasonable exercise of the police power of the State. In our opinion it is fairly supportable on that ground. And for this reason-the subject-matter in respect of which freedom of contract is restricted is the matter of compensation for human life or limb lost or disability incurred in the course of hazardous employment, and the public has a direct interest in this as affecting the common welfare." The authority of the State to prohibit contracts made in derogation of a lawfully established policy respecting compensation for accidental death or disabling personal injury was said to be clear. It was pointed out that no safety provisions, nor regulations directly tending to protect life and health, 45615°-Bull. 243-18-5