of New York, written by Miller, J.: "No one has a vested right under the Constitution to the maintenance of that common-law doctrine, which undoubtedly may be extended or curtailed by the Legislature. No one doubts that the doctrine of assumption of risk and the fellow servant doctrine, also developed by the courts under different conditions than those now prevailing, may be limited or entirely abrogated by the Legislature. Acts having that effect have been sustained by repeated decisions of this court. The power to limit or take away must also involve the power to extend. At the common law the servant was held to assume by implied contract the ordinary risks of the employment, including the risk of a fellow servant's negligence, and even of negligence imputable to the master if the danger was obvious, or with knowledge of it the servant voluntarily continued in the employment. It would not be a great extension of that doctrine for the Legislature to provide that the employé should assume the risk of all accidental injuries, and, if that can be done, it is certainly competent for the Legislature to provide by the creation of an insurance fund for a limited compensation to the employé for all accidental injuries, regardless of whether there was a cause of action for them at common law."1 § 19. Right to question validity Since the Legislature has power to take away in their entirety the defenses of contributory negligence, assumption of risk, and the fellow servant rule, the employer cannot complain of supposed defects in the processes by which these defenses may be regained. Until he shows some desire to avail himself of these processes, he assumed risk and contributory negligence, and hence the Compensation Act is not unconstitutional as taking away vested rights. Middleton v. Texas Power & Light Co. (Tex.) 185 S. W. 556. 1 Jensen v. Southern Pac. Co., 215 N. Y. 514, 109 N. E. 600, L. R. A. 1916A, 403, Ann. Cas. 1916B, 276. cannot be heard to complain that they are unequal. Nor can he be heard to urge a grievance of the employé, or attack the law on the ground that it is unconstitutional as to servants, unless it appear that such unconstitutionality will affect his liability or exemption from liability. Neither can an employé question the validity of an Act where he has elected to come under it. A statute will not be declared unconstitutional on a point not involved in the litigation. Therefore the question whether an Act is unconstitutional as depriving a workman's parents of their right of action for loss of his services while he is a minor will not be determined where the injured employé was not a minor at the time of his injury. Likewise, where an employer has not accepted the Act and has been given a jury trial, he cannot attack the Act on the ground that it is unconstitutional as denying a jury trial on the issue of damages to employers who have accepted it. The Michigan Act concerns only the workman's own right of action, and does not 2 Wheeler v. Contoocook Mills Corporation, 77 N. H. 551, 94 Atl. 265. 3 Hunter v. Colfax Consol. Coal Co. (Iowa) 154 N. W. 1037; Jeffrey v. Blagg, 235 U. S. 571, 35 Sup. Ct. 169, 59 L. Ed. 364. 4 Jensen v. Southern Pac. Co., 215 N. Y. 514, 109 N. E. 600, L. R. A. 1916A, 403, Ann. Cas. 1916B, 276. An allegation that the provision of paragraph 9 that "in the employment of minors section 2 shall be presumed to apply unless the notice be given by or to the parent or guardian of the minor" is void will not be considered by the Supreme Court when it appears that decedent was 34 years old at the time of his death. Sexton v. Newark District Telegraph Co., 84 N. J. Law, 85, 86 Atl. 451. Sayles v. Foley (R. I.) 96 Atl. 340. • In Sexton v. Newark District Telegraph Company, 84 N. J. Law, 85, 86 Atl. 451, 3 N. C. C. A. 569, the court says: "The question cannot be broader than that raised by the facts. That the Act or the supplement may or may not deprive parties to supposititious cases of constitutional rights has no bearing upon the present case, if it appears that the parties before the court are not deprived of constitutional rights by the proceedings under review." 7 Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N. W. 49. 8 (Laws 1911, c. 163) Wheeler v. Contoocook Mills Corp., 77 N. H. 551, 94 Atl. 205. affect the right of action of his parents for loss of his services and therefore cannot be said to be unconstitutional as depriving a parent of his right of action for injury to a minor child. It has been held that the constitutionality of the Industrial Insurance Act of Washington could be raised by a proceeding in mandamus to compel the state treasurer to issue a warrant to pay an obligation of the Industrial Insurance Department.10 Waiver of the right to question the constitutionality of an Act by electing to come within its terms is considered in a subsequent section.11 Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N. W. 49. 10 State v. Clausen, 65 Wash. 156, 117 Pac. 1101, 37 L. R. A. (N. S.) 466. 11 See § 21, post. CHAPTER II ELECTIVE AND COMPULSORY COMPENSATION Section 20. What Acts are elective and what compulsory. 21. Validity of Acts as affected by their elective or compulsory nature. Contractual nature of elective compensation. Presumption, notice and effect of election. 22. 23. 24. Pleading, and proof of election. 25. Abolition of defenses in common-law actions. § 20. What Acts are elective and what compulsory Of thirty-four Acts adopted in the American states and territories, fifteen are elective as to all classes of employers within their terms,1 ten are elective as to private employers but compulsory as to public employers, and nine may be classed as compulsory.3 1 Elective Acts have been adopted in Alaska, Colorado, Connecticut, Illinois, Kansas, Kentucky, Massachusetts, Minnesota, Nebraska, New Hampshire, Oregon, Rhode Island, Texas, Vermont, and West Virginia. The operation of the system of compensation provided rests upon the free consent of employer and employé, given in the manner provided by the Act. Without such consent on his part, the employé retains all his rights and remedies under common and statutory law. Shade v. Ash Grove Lime & Portland Cement Co., 93 Kan. 257, 144 Pac. 249. The Act of 1911 was elective. Price v. Clover Leaf Coal Min. Co. (1914) 188 Ill. App. 27. 2 Acts of this class have been adopted in Indiana, Iowa, Louisiana, Maine, Michigan, Montana, Nevada, New Jersey, Pennsylvania, and Wisconsin. The Iowa Act is optional. Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 3. As is also the New Jersey Act (P. L. N. J. 1911, p. 134). Albanese v. Stewart, 78 Misc. Rep. 581, 138 N. Y. Supp. 942. The employé is not compelled to give up any common-law or constitutional right, but reasonable provisions are made for the exercise of his election. Young v. Duncan, 218 Mass. 346, 106 N. E. 1. 3 Compulsory Acts have been adopted in Arizona, California, Hawaii, Maryland, New York, Ohio, Oklahoma, Washington, and Wyoming. The Arizona Act is compulsory on the part of the employer and optional on the part of In this connection, it should be noted that the California Act, classed as compulsory, is elective as to farm laborers, domestic servants, and casual employés, but otherwise is compulsory. Some Acts, such as the present New York Act, are elective only with the employer, while others are elective as to both employer and the employé. Behringer v. Inspiration Consol. Copper Co., 17 Ariz. 232, 149 Pae. 1065; Consolidated Arizona Smelting Co. v. Ujack, 15 Ariz. 382, 139 Pac. 465, 5 N. C. C. A. 742. In a recent Arizona case the court said: "The cases decided under the New Jersey Compensation Law, cited by appellant do not aid us in the consideration of the question before us. The New Jersey Act is not compulsory either on employer or employé, but is elective or optional as to both. Our Constitution and Compensation Act make the compensation provided compulsory upon the part of the employer, and optional on the part of the employé. Just a line or two from two New York cases will sufficiently distinguish the New Jersey law from ours. In Albanese v. Stewart, the court said: 'However, the New Jersey Act is not a compulsory statute. It is a so-called optional or elective statute.' In Pensabene v. F. & J. Auditore Co. it was said: "The option to accept one or the other forms of remedy is equally open to both parties at the time of their contracting, and before any rights have accrued by accident.' The New Jersey Supreme Court, in Sexton v. Newark Dist. Tel. Co. said: 'Under the Act neither the employer nor the employé is bound to accept the provisions of section 2, unless he chooses to do so.' It can be readily seen that the New Jersey Compensation Act is so widely different from ours as to make a judicial construction of it valueless when applied to our law. There is no option to election left to the employer under our Constitution and laws; for, as to him, they are compulsory." Consolidated Arizona Smelting Co. v. Ujack, 15 Ariz. 382, 139 Pac. 465, quoting from Albanese v. Stewart, 78 Misc. Rep. 581, 138 N. Y. Supp. 942; Pensabene v. F. & J. Auditore Co., 78 Misc. Rep. 538, 138 N. Y. Supp. 947; Sexton v. Newark Dist. Tel. Co., 84 N. J. Law, 85, 86 Atl. 451, 455. + Many Acts, like the Roseberry Act of California (St. 1911, p. 796), which in 1913 was superseded by the Boynton Act, are made applicable only to employers and employés electing to be bound by them. compulsory system of taxation, as does the Boynton Act. nity Co. v. Pillsbury, 170 Cal. 686, 151 Pac. 398. Others provide a St. Cal. 1913, p. 279, known as the Boynton Act, superseded the Roseberry Act, St. 1911, p. 796. The most striking difference between the two laws is that the compensation provisions of the later statute are compulsory on all employers and employés coming within its terms, while the Roseberry Act gave to both employers and employés a right of election in this regard. Id. Herkey v. Agar Mfg. Co., 90 Misc. Rep. 457, 153 N. Y. Supp. 369. |