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moneys appropriated by the state, under the provisions of the act in question, his financial burdens will be increased. Evanhoff v. State Industrial Acc. Commn., 78 Or. 503, 154 P 106.

42. Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 35 SCt 167, 59 L. ed. 364; Hunter V. Colfax Cons. Coal Co., (Iowa) 154 NW 1037; Jensen V. Southern Pac. Co., 215 N. Y. 514, 109 NE 600, LRA1916A 403, AnnCas 1916B 276.

[a] Illustrations.—(1) "The stress of the present argument, in the brief and at the bar, is upon the feature of the law which takes away the defense of contributory negligence from establishments employing five or more and still permits it to those concerns which employ less than five. Much of the argument is based upon the supposed wrongs to the employé, and the alleged injustice and arbitrary character of the legislation here involved as it concerns

equalities in the provisions made for the regaining of common-law defenses by accepting. Wheeler V. Contoocook Mills Corp., 77 N. H. 551, 94 A 265. (3) An employer who has not accepted the act cannot urge that it is unconstitutional because it denies to employers who accept the provisions of the law a jury trial on the issue of the damages. Wheeler v. Contoocook Mills Corp., 77 N. H. 551, 94 A 265. (4) An employee cannot question the constitutionality of the act on the ground that it delegates legislative power by permitting the employer and the employee to provide a benefit scheme in lieu of the compensation provided by the act, as provided for by Pub. L. [1912] c 831 art 4, where such employee and employer have made no such agreement. Sayles v. Foley, (R. I.) 96 A 340. (5) Adult employees cannot question the constitutionality of the act (Pub. L. [1912] c 831), on the ground that it unjustly discriminates between employ-him alone, contrasting an employé ers and deprives minor employees of property without due process of law, since one questioning an act as violative of the federal constitution must show that the alleged unconstitutional feature of the law injures him, in order to raise the question of its constitutionality. Sayles v. Foley, supra. (6) One not a parent or a minor cannot assert that a parent is deprived of his right of action for injury to his minor child. Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49. (7) An allegation that a provision 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 when it appears that decedent was thirtyfour years old at the time of his death. Sexton v. Newark Dist. Tel. Co., 84 N. J. L. 85, 89, 86 A 451 [aff 86 N. J. L. 701, 91 A 1070]. (8) "Now, speaking as to the employés excluded, their exclusion is either the granting of a privilege denied to others or the imposition of a burden from which others are relieved. If the last, it suffices that no excluded person is here complaining, and that appellant has no grievance because others are unfairly treated. Speaking from the angle of those included, their inclusion is either a burden not placed on others, or a privilege not shared by others. If the last, there is no grievance. One may not well complain of a discrimination consisting of his being treated better than others." Hunter V. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1053. (9) "Upon the argument much was said concerning the constitutionality of a legislative act compelling contribution from one person, or employer, to be used in paying for the negligence of another. That is a defense only to be made by those obliged to contribute to, or those charged with the duty of administering, the funds contributed." Meese v. Northern Pac. R. Co., 206 Fed. 222, 225 [rev on other grounds 211 Fed. 254, 127 CCA 622 (rev U. S.) 1.

[b] A taxpayer may urge that, by the unlawful expenditure of the

in a shop with five employés with those having less. No employé is complaining of this act in this case. The argument based upon such discrimination, so far as it affects employés by themselves considered, cannot be decisive; for it is the wellsettled rule of this court that it only hears objections to the constitutionality of laws from those who are themselves affected by its alleged unconstitutionality in the feature complained of." Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 576, 35 SCt 167, 59 L. ed. 364. (2) "In this, an appeal by an employer, it is urged that the right of rejection by the employé is unduly clogged: First, because of the requirements concerning the form and verification of the notice; and, second, because the sufficiency of these is to be passed on by the commissioner; the act is challenged because section 3 authorizes the commissioner to return a rejection by the employé if it fails to comply, in form or verification, with the requirements of the act, it being urged that this is power to construe contracts against their terms. And there is a contention that the act is void because it interferes with the exclusive jurisdiction of the federal courts of actions for injuries of employés of railroads, in that injuries to such employés are not excepted in the act. Section 22 of the act guards against this very interference with federal law. But, in any view, the alleged interference does not concern appellant." Hunter V. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1048.

43. Jensen v. Southern Pac. Co.. 215 N. Y. 514, 109 NE 600. LRA1916A 403 and note, AnnCas1916B 276.

44. De Biasi v. Normandy Water Co., 228 Fed. 234, 235 (holding, with reference to the New Jersey act of July 4, 1911, § 2 par 12, amended by the act of April 17, 1914 [P. L. 499]. that, under art 1 of the treaty between the United States of America and his majesty the king of Italy. concluded on Febr. 25, 1913, amending art 3 of the treaty of Febr. 26, 1871, which reads, "The citizens of each of the high contracting parties shall receive in the states and terri

46

tories of the other the most constant security and protection for their persons and property and for their rights, including that form of protection granted by any state or national law which establishes a civil responsibility for injuries or for death caused by negligence or fault and gives to relatives or heirs of the injured party a right of action, which right shall not be restricted on account of the nationality of said relatives or heirs, and shall enjoy in this respect the same rights and privileges as are or shall be granted to nationals, provided that they submit themselves to the conditions imposed on the latter," a clause in a state compensation act, providing that compensation shall not apply to alien dependents not residents of the United States, is invalid, but that such a treaty is not retroactive).

45. In re Gould, 215 Mass. 480, 102 NE 693, AnnCas1914D 372 and note.

[a] Reason for rule.-"These various acts, although having certain features in common, nevertheless differ widely in many essential aspects. Some are compulsory. Some prohibit contracts for a different form of compensation, and make criminal under severe penalties failure to comply with their terms. Some provide for strict State insurance, while others do not. The amount of compensation afforded and the circumstances under which it is to be awarded differ. The diversity of public policy already manifested between the several States is considerable. To say that such acts are intended to operate on injuries received outside the several States enacting them would give rise to many difficult questions of conflict of laws.

It would require a large dependence upon the comity of other States in enforcing our act and in refraining from enforcing their own as to a subject which commonly is wholly under the control of the several States, and with which, it has been pointed out, a substantial number have already manifested a purpose to deal by a new and special legislation. No court of any sister State, so far as we are aware, has had occasion to pass upon the precise questions here presented." In re Gould, 215 Mass. 480, 487, 102 NE 693, AnnCas1914D 372.

46. Conn. Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 A 372, LRA1916A 436 and note.

N. J.-Rounsaville v. Central R. Co., 87 N. J. L. 371, 94 A 392.

N. Y.-Post v. Burger, 216 N. Y. 544, 111 NE 351, AnnCas1916B 158 and note; Spratt v. Sweeney, etc., Co., 168 App. Div. 403, 153 NYS 505.

R. I-Grinnell v. Wilkinson, 98 A 103.

W. Va.-Gooding v. Ott, 87 SE 862. Que. Vincent v. Grand Trunk R. Co., 45 Que. Super. 353.

"The place where the accident occurs is of no more relevance than is the place of accident to the assured in an action on a contract of accident insurance, or the place of death of the assured in an action on a contract of life insurance. Rounsaville v. Central R. Co., 87 N. J. L. 371, 374, 94 A 392.

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[a] Reasons for rule.-(1) "If our Act intends its contracts of employment to include compensation for injuries occurring only within our jurisdiction, it manifestly defeats its own ends. In that case the employer may not charge to the industry the compensation for injuries occurring without the State, and the employee or his dependents may not collect the same. Neither employer nor employee can know what portion of this period of employment will be subject to the provisions of the Act, and no provision for insurance of this liability will be practically possible, since it may not ordinarily be known what part of the service will be in and what part out of the State, ór in what jurisdiction the service will be performed, in industries and commercial enterprises engaged in intrastate and interstate employment. The State boundary is not the limit of very many businesses. To subject them to the laws of the many jurisdictions in which they may be engaged will be especially burdensome to them, and involve them probably in greater expense and liability and far greater difficulties than under the old system. Equally hard will it prove to the employee since he must pursue his remedy in the State of the accident, or the Federal court applying that State's law, and thus he may be brought under any one of many different compensation Acts, with whose provisions he cannot hope to be familiar; some Acts contractual in character, some compulsory, some optional, and some ex delicto; and he may find he has forfeited the benefit of the foreign Act through failure to comply with its provisions. reading of the several Acts now in force convinces us that these difficulties are not imaginative, but imminent actualities.' Kennerson Thames Towboat Co., 89 Conn. 367, 375, 94 A 372, LRA1916A 436. (2) "It was the intention of the legislature to secure such injured workmen and their dependents from becoming objects of charity, and to make reasonable compensation for injuries sustained or death incurred by reason of such employment a part of the expense of the lines of busiincluded within the definition of hazardous employments as stated in the act. The danger of injured workingmen and their dependents becoming objects of charity is just as great when an accident occurs outside the boundaries of the state as it is when it occurs within the state. The interests of the state in its citizens is just as great in one case as in the other. The provisions in the act making the insurance of employers a part of the scheme and purpose of the act are to make certain that the compensation provided by the act will be paid. The failure to provide such insurance takes away in part the benefits that the employer receives pursuant to the act. The employer in this case assented to the contract of employment under the act to the extent of providing insurance with the insurance carrier. The act, in view of its humane purpose, should be construed to intend that in every case of employment there is a constructive contract between the employer and employee, general in its terms and unlimited as to territory, that the employer shall pay as provided by the act for a disability or the death of the employee as therein stated. The duty under the statute defines the terms of the contract." Post v. Burger, 216 N. Y. 544, 553, 111 NE 351, AnnCas1916B 158.

ness

V.

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pensation, and that the effect of our decision may be to allow a double recovery, we can only say that questions of that kind had better be dealt with as they arise, and in the light of the exact scheme of comIt pensation that may be involved. is enough for the present to say that recovery of compensation in two states is no more illegal, and is not necessarily more unjust than recovery upon two policies of accident or life insurance." Rounsaville v. Central R. Co., 87 N. J. L. 371, 374, 94 A 392.

[c] Practical difficulties may be overcome.-"We appreciate that any determination that may be made of the question under consideration [extra territorial effect] will result in some practical difficulties in administering the statute, but the difficulties that will be met with in administering the statute construed as requiring a contract binding upon both parties without limitation will be less burdensome than the difficulties that would be experienced with a contrary construction of the statute. The practical difficulties that may be met in administering the statute as herein construed can be substantially overcome by adopting rules for the commission or perhaps by further legislation.” Post V. Burger, 216 N. Y. 544, 559, 111 NE 351, AnnCas1916B 158.

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47. Gardener Horseheads Constr. Co., 156 NYS 899 (holding that where an employer, with an office in New York and carrying insurance as to employees engaged in work in the state, under the workmen's compensation law [Consol. L. c 67], the pay rolls on jobs outside the state not being used as a basis for such insurance, employed decedent, while he was out of the state, to engage in the employment in which he was engaged in Pennsylvania at the time of his death, compensation could not be awarded, although the contract be regarded as one made in New York); Gooding v. Ott, (W. Va.) 87 SE 862. Compare Johnson v. Nelson, 128 Minn. 158, 150 NW 620 (where, without discussion of the applicability of the Minnesota law, the court held that the Wisconsin compensation act was properly pleaded in defense to a tort action in Minnesota under the following facts: Plaintiff, on April 2, 1913, entered defendant's employ on railroad construction work. He worked at two different places in Minnesota. On June 26 of the same year he was asked to go to Wisconsin on similar work there being done He accepted, and was by defendant. injured four days thereafter. His original hiring was for no definite time and for no particular place. On June 10 defendant had elected to accept the provisions of the Wisconsin Workmen's Compensation Act [St. (1913) § 2394-8]).

[a] Permanent and temporary absence distinguished. "In this case the decedent had not been employed by the appellant in the state since 1912. His employment had not been continuous, but had been from time to time for certain jobs which were being performed entirely without the state. The contract of employment did not contemplate any work by him within the state; no such work was done. The statute in question is intended to regulate the relations between the employer and employé in hazardous employments within the state, and to protect the employé within the state from the ordinary risks of the employment, and to charge those risks upon the ultimate consumer. The mere fact that an employé is engaged by a resident of the state to go out of the state for service, and no service in the state is contemplated or done, cannot bring

the employment within the act. Ordinarily a statute has no extraterritorial effect. But where the regular service of the employé is being performed in the state, and, as an incident to it, he goes over the state line temporarily, we have held that such temporary absence from the state does not relieve the employer from liability under this statute.' Gardener v. Horseheads Constr. Co., 156 NYS 899, 901.

48. Kennerson V. Thames Towboat Co., 89 Conn. 367, 94 A 372, LRA1916A 436; Post v. Burger, 216 N. Y. 544, 556, 111 NE 351, AnnCas 1916 B 158; Grinnell V. Wilkinson, (R. I.) 98 Á 103; Gooding v. Ott, (W. Va.) 87 SE 862.

"If the relation between the employer and employee is contractual the contract should be construed as binding upon both parties thereto without limitation as to territory the same as all ordinary contracts, based upon mutual agreement independent of statutory duty." Post v. Burger, supra.

[a] Contrary ruling distinguished. "We must accept the construction accorded the Massachusetts Act by its Supreme Judicial Court [In re Gould, 215 Mass. 480, 102 NE 693, AnnCas1914D 372]. It may be well, however, to point out that the court does not state that its Act is contractual in character. That, as we have indicated, is of final importance in the conclusion we reached concerning our own Act. Then, too, under the Massachusetts Act, the employee is merely the beneficiary under a contract between the employer and the insurer; with us the employer and employee enter into a contract relation. In its reference to and comment upon certain sections of their Act, the court says that it must be found within the Act from unequivocal language,' or 'plain and unmistakable words,' that the Act was intended to relate to injuries without the Commonwealth. We have adopted a broader rule. We read our Act in the light of the purpose, subject-matter, and history of the Act, to determine whether it expressly or by reasonable inference intended to include in its contract injuries without our jurisdiction. This is our ordinary rule in the interpretation of statutes. The Massachusetts court states that the subject of personal injuries received by a workman in the course of his employment is within the control of the sovereign power where the injury occurs.' And it argues that, if the Act had intended employers and employees from different States to carry their domiciliary personalinjury law with them into other jurisdictions, it would have expressed its intent in unambiguous words. This argument concerns proceeding to enforce an ex delicto claim, not one for compensation by way of contract. It is also argued that, if an Act is given extraterritorial force, similar effect must be given to like laws of other States. if contracts of employment cover compensation for injuries outside the State, recovery for these will be governed by the usual rules for the construction and enforcement of all contracts. We should give similar effects to contracts of like character to those before us, though made under a compensation Act of another jurisdiction, provided they did not conflict with our law or public policy, and the machinery provided for the ascertainment and collection of the compensation could be used in our jurisdiction." Kennerson Thames Towboat Co., 89 Conn. 367, 380, 94 A 372. LRA1916A 436.

a

V.

Nature of obligation see supra § 4. 49. Post v. Burger, 216 N. Y. 544, 111 NE 351, AnnCas1916B 158.

11

14

[§ 21] I. Impairment of Right to Contract. The elective compensation acts are held to work no impairment of the right to contract, either generally, or on the part of the employee12 or the employer.13 In any event the right of the legislature to impair the right to contract, in the exercise of the police power, is recognized." Hence even a compulsory compensation act may be sustained on the theory that the right is subject to reasonable restrictions for the welfare of the state; ;15 and on the same theory restrictions on the right to contract intended to prevent evasion or circumvention of the statute are sustained,16 as are provisions that no payment under the act shall be assignable or subject to attachment or Co., (Iowa) 154 NW 1037; State v. Seattle, 73 Wash. 396, 132 P 45.

Obligation of contract generally as subject to police power see Constitutional Law [8 Cyc 997].

11. Hawkins v. Bleakley, 220 Fed. 378; Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037.

12. Deibeikis v. Link-Belt Co., 261 Ill. 454, 104 NE 211, AnnCas1915A 241; Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49; Sayles v. Foley, (R. I.) 96 A 340 (holding that Pub. L. [1912] c 831 art 1 § 6, providing that an employee of an accepting employer waives his common-law action unless he gives notice of such claim to the employer, does not render the act invalid as destroying the right of freedom of contract, since such provision simply creates a presumption in the absence of such notice leaving the employee free to accept or to reject the act).

13. Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037 (sustaining the provisions of the Iowa act that every employer, subject to its provisions, shall insure his liability thereunder in some organization approved by the state department of insurance, and further provisions as to this and the supervision and regulation of taking and maintaining such insurance, together with provisions as to the methods by which the insurance can be carried by mutual arrangernent by the employer and employee, or under which the employer may carry his own risk; and various other regulations and supervisions of these arrangements for carrying insurance, for terminating such arrangements, and the like).

14. Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1050.

"While the right to contract is a property right, like all other property rights, it is 'subservient to the public welfare,' and may be taken by the state in a well-directed effort to promote the public welfare by the exercise of the police power." Hunter v. Colfax Cons. Coal Co., supra.

15. State V. Clausen, 65 Wash. 156, 192, 117 P 1101, 37 LRANS 466. "It is thought the act at bar interferes with certain of the personal rights here defined, particularly with the right of contract, and is for that reason violative of this provision of the constitution. But it is recognized in the case cited, and in many others, that these rights are not absolute. On the contrary, it has been many times said that there is no absolute right to do as one wills, pursue any calling one desires, or contract as one chooses; that the term liberty means absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community." State v. Clausen, supra.

16. Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1050; In re Opinion of Justices, 209 Mass. 607, 96 NE 308.

garnishment, or in any way be held for

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[22] J. Delegation of Judicial Powers and Deprivation of Courts of Jurisdiction. The creation by the compensation acts of boards or commissions having authority to pass on claims for injuries and to make awards does not constitute an unwarranted delegation of judicial powers, 18 the decisions being based on the various grounds that such boards are administrative agencies, although exercising quasi judicial powers,19 that they do not have the final authority to decide and to render enforceable judgments,20 or that under the elective statutes they are in effect boards of arbitration by agreement.21 Notwithstanding a constitutional provision vesting the judicial power in islature may make provision against | amount of coal mined and the having the legislative intent as to such act thwarted. To put the ban upon such influences interferes with

no

right of contract, but simply heads off one method of evading and crippling the act. One underlying purpose of the statute is to promote acceptance by the employé. No valid right is infringed by making taboo the employment of methods that might press the employe to reject." Hunter V. Colfax Cons. Coal Co., supra.

[a] For example the following
provisions have been sustained: (1)
No contract, rule, regulation or
device whatsoever shall operate to
relieve the employer, in whole or in
part, from any liability created by
this act except as herein provided."
Hunter V. Colfax Cons. Coal Co.,
(Iowa) 154 NW 1037. (2) "Any con-
tract of employment, relief benefit or
insurance or other device whereby
the employe is required to pay any
premium or premiums for insurance
against the compensation provided
for in this act shall be null and
void." Hunter v. Colfax Cons. Coal
Co., supra. (3) "No employe or bene-
ficiary shall have power to waive any
of the provisions of this act in re-
gard to the amount of compensation
which may be payable to such em-
ploye or beneficiary hereunder to
whom the act applies." Hunter V.
Colfax Cons. Coal Co., supra. (4)
"Any contract or agreement made by
any employer or his agent or attor-
ney with any employe or any other
beneficiary of any claim under the
provisions of this act within twelve
(12) days after the injury shall be
presumed to be fraudulent." Hunter
v. Colfax Cons. Coal Co., supra. (5)
"The compensation herein provided
shall be the measure of the responsi-
bility which the employer has as-
sumed for injuries or death that may
occur to employes in his employment
subject to the provisions of this act.
and it shall not in any wise be re-
duced by contributions from em-
ployes." Hunter V. Colfax Cons.
Coal Co., supra.

17. Mackin V. Detroit-Timkin
Axle Co., 187 Mich. 8, 153 NW 49.
18. Ill.-Deibeikis
Link-Belt

V.

Co., 261 Ill. 454, 104 NE 211, AnnCas
1915A 241.

Iowa.-Hunter V. Colfax Cons.
Coal Co., 154 NW 1037.

Mich. Mackin V. Detroit-Timkin
Axle Co., 187 Mich. 8, 153 NW 49.

Minn.-State V. Meeker County
Dist. Ct., 128 Minn. 221, 150 NW 623.
Tex.-Middleton V. Texas Power,
etc., Co., 185 SW 556.

Wash.-State v. Mountain Timber
Co., 75 Wash. 581, 135 P 646.

Wis.-Borgnis V. Falk Co., 147
Wis. 327, 133 NW 209, .37 LRANS
489.

[a] The Montana Miners' Compensation Act (L. [1909] c 67), providing indemnity for injured employees engaged in coal mining from a fund to be collected from a tax levied on the workmen and the coal in accordance with the

"Assuming there can be a valid compensation act, certainly the Leg-operators

amount of wages paid, and providing a summary method for the disposition of claims filed under the law, was not unconstitutional as conferring judicial power on the state auditor having charge thereof. Cunningham v. Northwestern Impr. Co., 44 Mont. 180, 119 P 554.

[b] In Oregon, under Const. art 7 § 1, as amended in 1911, the legislature was authorized to confer judicial powers on the state industrial accident commission, created by the workmen's compensation law, since under the amendment the legislature

or

the people may confer judicial powers on any tribunal selected, so long as the different departments of government are not made to croach on each other. Evanhoff_v. State Industrial Acc. Commn., 78 Or. 503, 154 P 106.

en

19. Mackin V. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49; Middleton v. Texas Power, etc., Co., (Tex.) 185 SW 556; Borgnis v. Falk Co., 147 Wis. 327, 358, 133 NW 209, 37 LRANS 489.

"We do not consider the Industrial Commission a court, nor do we construe the act as vesting in the Commission judicial powers within the meaning of the constitution. It is an administrative body or arm of the government which in the course of its administration of a law is empowered to ascertain some questions of fact and apply the existing law thereto, and in so doing acts quasi-judicially, but it is not thereby vested with judicial power in the constitutional sense.' Borgnis V. Falk Co., supra.

"

20. Mackin V. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49.

21. Deibeikis v. Link-Belt Co., 261 Ill. 454, 104 NE 211, AnnCas1915 A 241; Greene v. Caldwell, 170 Ky. 571, 186 SW 648; Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49; Borgnis v. Falk Co., 147 Wis. 327, 133 NW 209, 37 LRANS 489.

[a] "Being elective, the act does not become effective as to any employer or employee unless such employer or employee chooses to come within its provisions. Having once elected to come within the provisions of the act, as long as such election remains in force the act is effective as to the party or parties making the election, and in case an employer and an employee both elect to come within the provisions of the act, the act itself then becomes a part of the contract of employment and can be enforced as between the parties as such. Under this view it cannot be said that by this act judicial power is delegated to boards of arbitrators, contrary to the provisions of our constitution. Parties to a contract may make valid and binding agreements to submit questions in dispute or any disagreement that may arise to a board of arbitrators composed of persons or tribunals other than the regularly organized courts, and such agreements will be enforced. (Pacaud v. Waite, 218 Ill. 138, 75

22

specific courts, the legislature may be given power,
as has been done in some jurisdictions by a con-
stitutional amendment, to vest a board or commis-
sion created under a compensation act with judi-
cial powers.
In such a case the authority of the
legislature is of course measured by the terms of
the amendment.28 A statute creating a state
board to establish a state insurance fund from
premiums paid by employers and employees has
been held not invalid as a delegation of judicial
powers.24

NE 779, 2 LRANS 672.) By elect-
ing to accept the provisions of this
act the employer and the employee
thereby agree to settle by arbitra-
tion any dispute that may arise be-
tween them in reference to compen-
sation for injury." Deibeikis v. Link-
Belt Co., 261 Ill. 454, 465, 104 NE
211. AnnCas1915A 241.

22. Western Metal Supply Co. v. Pillsbury, (Cal.) 156 P 491; Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319, 153 P 24; Englebretson v. Industrial Acc. Commn., 170 Cal. 793, 151 P 421 (holding that, as Const. art 20 § 21, as amended, under which the Workmen's Compensation Law was enacted, did not authorize the legislature to delegate to the commission, as was attempted by § 75 subd 6, power to regulate and to prescribe the nature and the extent of the proofs and the evidence, such attempted delegation is invalid).

[a] Commission exercising judicial powers.-"It is true that, in several cases involving compensation statutes, it has been held that the boards or officers authorized to determine the facts upon which the right to compensation arose were exercising executive or administrative rather than judicial powers. Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 A 372, LRA1916A 436; Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49; Borgnis v. Falk Co., 147 Wis. 327, 133 NW 209, 37 LRANS 489. But in none of these cases was the court considering a statute which gave to a commission powers as extensive as those vested by our law in the industrial accident commission. We shall not take the time to review in detail the cases just cited, but content ourselves with saying that we think there is nothing in them which would support the claim that the powers exercised by the industrial accident commission of this state in making awards of compensation are not strictly judicial." Western Metal Supply Co. v. Pillsbury, (Cal.) 156 P 491, 493.

23. Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319, 153 P 24.

[a] "The constitutional provision is that the legislature may 'create and enforce a liability on the part of all employers to compensate their employees for any injury incurred by the said employees in the course of their employment.' It proceeds to declare that the legislature may establish an industrial accident board and empower it to settle disputes concerning the liability which the legislature may create under the authority so given. (Art. XX, sec. 21.) This action by such board would be an exercise of judicial power. For that purpose it is, in legal effect, a court. Section 1 of article VI vests the judicial power of the state in the senate, sitting as a court of impeachment, in a supreme court, district courts of appeal, superior courts,' and such inferior local courts as the legislature may establish. Under this provision the legislature would be without authority to give judicial power to any general state board or tribunal. Except for local purposes the section disposes of the whole judicial power of the state and vests all of it in the courts expressly named

Provision for arbitration. A provision in an elective act for the formation of a committee of arbitration in case of disputed claims, the decision of which is reviewable by the industrial commissioner, and on which a decree is rendered by the district court, has been sustained as against a contention that it is an improper delegation of judicial power and a denial of a judicial hearing.25 Depriving courts of jurisdiction. The elective

acts are not invalid as depriving the parties of all right to resort to the courts.20

if submission be compulsory, there is here no unwarranted delegation. It does not at all follow from pronouncements that judicial power may not be delegated, that none but duly constituted constitutional courts may exercise judicial power." Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1061.

[b] "It is not wholly clear that here there is a delegation of judicial power. It might, perhaps, as well be claimed that what has really been delegated is not judicial power, but power by award and resulting entry of decree to apply the measure of damages created by legislative act,

a

delegation of legislative rather than of judicial power." Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1060.

therein, leaving none at the disposal | would be valid-we hold that, even
of the legislature. Authority to the
legislature to create another state
tribunal and vest it with judicial
power over this new class of cases
must be sought for elsewhere in the
constitution. It is found only in the
aforesaid section 21 of article XX.
It follows that this section measures
and limits the legislative power in
that respect. The second sentence
of the section authorizes the creation
of a state board to settle disputes
arising under the legislation author-
ized by the first sentence. This
includes only disputes arising out
of the newly to be created liability
of an employer to his employee for
an injury incurred by such employee
in the course of the employment.
It is these injuries only the redress
of which may be committed by the
legislature to a state industrial acci-
dent board. Hence it follows neces-
sarily that the legislature cannot
give such board power to 'settle dis-
putes and allow compensation from
the employer to a person who has
been or is an employee, for a per-
sonal injury which was not incurred
by him in the course of' his employ-
ment, or which happened after the
employment had ceased and was not
the natural and proximate result of
the employment, or of some injury
which did occur in the course of his
employment. It could not give such
board power to allow compensation
to McCay for the additional disabil-
ity or expenses arising from
slipping of the broken bone, unless
such slipping was the natural or
proximate result of the original in-
jury." Pacific Coast Casualty Co. v.
Pillsbury, 171 Cal. 319, 322, 153 P 24.

the

24. State v. Creamer, 85 Oh. St.
349, 400, 97 NE 602, 39 LRANS 694
(where the court said of 102 Oh. L.
p 524: "If the board is a court
there is an end of the whole matter.
The statute would be unconstitu-
tional. For if the board is a court
it has not been created in accord-
ance with the manner provided by
the constitution. We do not consider
the Board of Awards a court, or in-
vested with judicial power within
the meaning of the constitution.
is created by the act purely as an
administrative agency to bring into
being and administer the insurance
fund, and the fact that it is empow-
ered to classify persons who
under the law and to ascertain facts

as

It

come

to the application of the fund, does not vest it with judicial power within the constitutional sense").

25. Hawkins v. Bleakley, 220 Fed. 378, 382; Hunter V. Colfax Cons. Coal Co., (Iowa) 154 NW 1037.

"Arbitrations existed at common law, and they are allowable under the Iowa statute. The conclusion and award of an arbitrator can be enforced by judicial proceedings. There is nothing new about all this. And these arbitrations are agreed to under this statute either by specific agreement or by acquiescence." Hawkins v. Bleakley, supra.

[a] Judicial power not restricted to courts.-"Assume the delegation is one of judicial powers, while if the parties are left wholly free on whether to reject or accept this arbitration and resulting court orders, it is, perhaps, not strictly necessary to determine whether enforced submission to said procedure

26. Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037; Borgnis v. Falk Co., 147 Wis. 327, 133 NW 209, 37 LRANS 489.

[a] Extent of ouster of jurisdiction.-"If we assume the statute would be void if it operated to oust the courts of all jurisdiction to try controversies between employer and employé, it is an immaterial concession in the cases wherein the act is rejected. For, when rejected, the courts are not ousted of jurisdiction in toto, and, as we view it, not deprived of it at all. Where the act is rejected the full dispute between the parties is still submitted by ordinary proceedings, and tried in the usual way. True, some mere rules of procedure are changed, some defenses are eliminated, and there is some change in burden of proof. Even if it be assumed that these changes are unauthorized, the objection is not sustained that on rejection of the act the courts no longer have jurisdiction to try suits for the injury of an employé. A somewhat more difficult question arises when the provisions of the act are accepted. In that case, if the parties cannot come to an agreement, compensation fixed by statute schedule is awarded by arbitration provided for in the act. In a sense, then, the acceptance of the statute operates to take from the courts so much of the controversy as is determined by the applying of the statute schedules through the agency of the statute arbitrators. Before we reach the question whether, if this constitute a total ouster of the jurisdiction of the courts, it would invalidate the act, we, of course, have to determine whether such total ouster is SO effected. We are forced to deal with this question as one of first impression, because no decision that sustains the Compensation Act of other states is applicable. The Washington Act and that of Massachusetts reserve recourse to the courts and full judicial review. Borgnis v. Falk Co., 147 Wis. 327, 133 NW 209, 210, 37 LRANS 489, sustains the Wisconsin act with a holding that there is review if the act be without power or fraudulent, that if the board act without or in excess of its jurisdiction, there may be action in court to set aside the award, and that this may also be done if its findings of fact are not supported by the evidence. Our act has no such reservations, in terms, and therefore these decisions afford us no light.

Right to review. The fact that a right of appeal from an administrative board is not granted does not constitute an encroachment on the judiciary where the right of review by certiorari remains open. The parties cannot be deprived of the right to have a court review of the action of the board to the extent of determining whether it has acted illegally or without jurisdiction.28

27

[23] K. Delegation of Legislative Authority. An elective compensation act is not invalid as a delegation of legislative authority for the reason

We are in no doubt that the very
structure of the law of the land, and
the inherent power of the courts,
would enable them to interfere, if
what we have defined to be the juris-
diction conferred upon the arbitra-
tion committee were by it exceeded-
could inquire whether the act was
being enforced against one who had
rejected it, whether the claiming em-
ployé was an employé, whether he
was injured at all, whether his in-
jury was one arising out of such
employment, whether it was due to
intoxication of the servant, or self-
inflicted or, acceptance being con-
ceded, into whether an award differ-
ent from the statute schedules had
been made, into whether the award
were tainted with fraud on part of
the prevailing party, or of the arbi-
tration committee, and into whether
that body attempted judicial func-
tions, in violation of or not granted
by the act. All of which establishes
the statute works no complete ouster
of jurisdiction, the only ouster which
is condemned. The utmost it does
is to provide administrative
chinery for applying rates of com-
pensation fixed by the Legislature
as between parties who have agreed
to have the amount of compensation,
Hunter v.
merely, thus determined."
Colfax Cons. Coal Co., (Iowa) 154
NW 1037, 1062, 1064.
27.

ma

State v. Meeker County Dist. Ct., 128 Minn. 221, 150 NW 623.

Com

the

28. Courter V. Simpson Constr. Co., 264 Ill. 488, 495, 106 NE 350; Borgnis v. Falk Co., 147 Wis. 227, 133 NW 209, 37 LRANS 489. pare Hunter v. Colfax Cons. Coal Co., (Iowa) 154 NW 1037 (where it is held that, in the absence of an express provision in the act, the inherent powers of the courts would enable them to interfere were jurisdiction imposed on the arbitration committee exceeded); State Journal Co. v. Workmen's Compensation Bd., 162 Ky. 387, 388, 172 SW 674, LRA1916A 402 (where the court, in pointing out the objections to the Kentucky act held unconstitutional on other grounds, said: "Provision should be made in the act for appeal to a court of competent jurisdiction for review in all cases where compensation is denied or where a less sum is allowed by the board than that claimed by the injured employee").

"To deny a court review of those questions would violate the due process of law provision of the constitution." Courter V. Simpson

Constr. Co., supra.

[a] Construction of statute.-"If the act before us took away from the courts the power to consider these jurisdictional questions, either expressly or by necessary implication, the contention that judicial power had been vested in the Commission, contrary to the command of the constitution, would be of greater force, but we think that the act does not do this, or attempt to do it. True, it says that the findings of fact made by the Commission shall, in the absence of fraud, be conclusive; but it provides for an action in the circuit court for Dane county, in which the board's award may be set aside upon either of three grounds, viz.: (1) that the board

acted without or

that the power is given the employer to choose from two alternative schemes, both clearly and completely defined by the law and designed afford compensation for an accident to another, so long as that other is not bound by the employer's choice but is left free to make his own choice.29

in excess of its
powers; (2) that the award was pro-
cured by fraud; and (3) that the
findings of fact do not support the
award. We regard the expression
'without or in excess of its powers'
as substantially the equivalent, or at
least inclusive, of the expression
'without or in excess of its jurisdic-
tion,' as those words are used in
certiorari actions to review the de-
cisions of administrative officers and
bodies. We know of no other con-
struction that can be logically given
to them, and it seems to us that they
were designedly and advisedly in-
serted by the framers of the bill to
meet the very objection which is now
made. With this construction, it is
certain that the constitutional pow-
ers of the courts have not been in-
vaded, and that no man without his
consent can be brought under the
law or is deprived of his right to
'due process of law' thereby." Borg-
nis v. Falk Co., 147 Wis. 327, 360,
133 NW 209, 37 LRANS 489.

29. Sayles v. Foley, (R. I.) 96 A
340.
[a] "The employer has the first
move, so to speak. If he does not
elect, the parties remain under the
common law as
for
modified by the
statute itself, the employé with his
previous rights undiminished and
the employer shorn of some of his
previous defenses. If the employer
elects to come under the compensa-
tion scheme of the statute, the em-
ployé then has the opportunity of
electing by positive act to remain
under the common law and to pre-
serve his remedies thereunder for
future accidents, or by inaction to
tacitly accept the compensation fea-
tures of the act.
It is a
somewhat unusual and extended
application of the doctrine of the
election of remedies, but it does not
involve a delegation of legislative
power.' Sayles v. Foley, (R. I.) 96
A 240, 348.

V.

to

L.

[§ 24] L. Subject and Title of Act. In several of the states particular compensation statutes have been held not to violate constitutional requirements that every act shall embrace but one subject which shall be expressed in its title,30 the tests applied an appropriation to carry out the provisions of this act, and restricting the right to compensation or damages in such cases to such as are provided by this act." Pub. Acts (Ex. Sess. 1912) No. 10 p 20; Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 11, 153 NW 49. (3) "An act providing for the protection and safety of workmen in all places of employment and for the inspection and regulation of places of employment in all inherently hazardous works and occupations; providing a schedule of compensation for injury to or death of workmen and methods of paying the same, and prescribing the liability of employers who do not elect to pay such compensation; establishing the industrial accident board, defining its powers and duties; and providing for a review of its awards." L. (1915) с 96 p 168; Lewis, etc., County Industrial Acc. Bd., (Mont.) 155 P 268, 269. (4) "An act prescribing the liability of an employer to make compensation for injuries received by an employee in the course of employment, establishing an elective schedule of compensation, and regulating procedure the determination of liability and compensation thereunder." (1911) c 95 p 134; Huyett v. Pennsylvania R. Co., 86 N. J. L. 683, 92 58. A (5) "An act creating the State Industrial Accident Commission and an providing Industrial Accident Fund, making an appropriation for such fund and providing for the administration of the terms of this act, providing for the collection and disbursement of funds for the benefit, compensation and care of workmen, prescribing the duties of employers and workmen subject to this act, and providing penalties for a violation of the terms of this act, and abolishing in certain cases the defenses of assumption of risk, contributory negligence and the negligence of a fellow-servant in actions for personal injury and death." L. (1913) с 112 p 188; Evanhoff V. State Industrial Acc. Commn., 78 Or. 503, 514, 154 P 106. (6) "An act relating to employers' liability and providing for the compensation of certain employes and their representatives and beneficiaries, for personal injuries sustained in the course of employment, and for deaths resulting from such injuries, and to provide and determine in what cases compensation shall be paid, and to make the payment thereof the more certain and prompt by the creation of an in[a] Illustrations. The follow- surance association to insure and ing titles have been held not subject guarantee such payments and of an to constitutional objections: (1) industrial accident board for the "An Act to provide compensation investigation of claims and for the for workmen injured in certain haz- adjudication thereof for consenting ardous industries." L. (1911) c 218; parties, fixing the membership and L. (1913) c 216; Shade v. Ash Grove powers of said board and its comLime, etc., Co., 93 Kan. 257, 261, 144 pensation and duties, and the P 249. (2) "An act to promote the method of its appointment, and the welfare of the people of this State, term of office of its members, and relating to the liability of employ-fixing also the powers, duties and ers for injuries or death sustained liabilities of said insurance associaby their employees, providing com- tion and the extent of control over pensation for the accidental injury the same to be exercised by the to or death of employees and meth-Commissioner of Banking and Inods for the payment of the same, surance, and providing also for the establishing an industrial accident insurance of payments of compenboard, defining its powers, providing sation to employees by certain other for a review of its awards, making insurance companies and organiza

30. Kan.-Shade V. Ash Grove Lime, etc., Co., 93 Kan. 257, 144 P 249.

Ky-Greene v. Caldwell, 170 Ky.
571, 186 SW 648.

Mich.-Mackin V. Detroit-Timkin
Axle Co., 187 Mich. 8, 153 NW 49.

Mont.-Lewis, etc., County V.
State Industrial Acc. Bd., 155 P 268.
N. J.-Huyett v. Pennsylvania R.
Co., 86 N. J. L. 683, 92 A 58.

Or.-Evanhoff v. State Industrial
Acc. Commn., 78 Or. 503, 154 P 106.

Tex. Middleton v. Texas Power,
etc., Co., 185 SW 556; Consumers'
Lignite Co. v. Grant, (Civ. A.) 181
SW 202.

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