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the grievance of the employee. It has, however, been beld that the employer may urge that an insurance act is unconstitutional as to the employee, when, if such contention is true, the employer would be deprived of the exemption from further liability

acquired by him through payment of the prescribed premium into the state fund.43

[ 0 27] 0. Violation of Treaty Obligations. Provisions of state compensation acts in contravention of treaties of the United States are void. 44

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IV. CONFLICT OF LAWS [$ 28] A. Contract within and Injury outside weight of authority is to the effect that the state of Jurisdiction. While it has been held that the courts will apply the domestic compensation law operation of a compensation act will not be ex- in the case of an injury received outside of the tended to injuries received outside of the state state, where the contract of employment was enin the absence of a plain legislative intent,45 the tered into within the state, 46 except perhaps in a equalities in the provisions made for moneys appropriated by the state, tories of the other the most constant the regaining of common-law de- under the provisions of the act in security and protection for their perfenses by accepting. Wheeler v. question, his financial burdens will sons and property and for their Contoocook Mills Corp., 77 N. H. 551, be increased. Evanhoff v. State In- rights, including that form of pro94 A 265. (3) An employer who has dustrial Acc. Commn., 78 Or, 503, 154 tection granted by any state or nanot accepted the act cannot urge P 106.

tional law which establishes a civil that it is unconstitutional because it 42. Jeffrey Mfg. Co. v. Blagg, 235 responsibility for injuries or for denies to employers who accept the U. S. 571, 35 SCt 167, 59 L, ed. 364; death caused by negligence or fault provisions of the law a jury trial on Hunter V. Colfax Cons. Coal Co., and gives to relatives or heirs of the the issue of the damages. Wheeler (Iowa) 154 NW 1037; Jensen V. injured party a right of action, v. Contoocook Mills Corp.,. 77 N. H. Southern Pac. Co., 215 N. Y. 514, 109 which right shall not be restricted 551, 94 A 265. (4) An employee can- NE 600, LRA1916A 403, AnnCas on account of the nationality of said not question the constitutionality of 1916B 276.

relatives or heirs, and shall enjoy in the act on the ground that it dele- [a] Illustrations.-(1) "The stress this respect the same rights and gates legislative power by permitting of the present argument, in the brief privileges as are or shall be granted the employer and the employee to and at the bar, is upon the feature to nationals, provided that they subprovide a benefit scheme in lieu of of the law which takes away the de- mit themselves to the conditions imthe compensation provided by the fense of contributory negligence posed on the latter," a clause in a act, as provided for by Pub. L. from establishments employing five state compensation act, providing (1912) c 831 art 4, where such em- or more and still permits it to those that compensation shall not apply to ployee and employer have made no concerns which employ less than alien dependents not residents of the such agreement. Sayles v. Foley, five. Much of the argument is based United States, is invalid, but that (R. I.) 96 A 340. (5) Adult em- upon the supposed wrongs to the such a treaty is not retro ve) ployees cannot question the consti- employé, and the alleged injustice 45. In re Gould, 215 Mass. 480. tutionality of the act (Pub. L, [1912] and arbitrary character of the legis- 102 NE 693, AnnCas1914D 372 and C 831), on the ground that it un- lation here involved as it concerns note. justly discriminates between employ: him alone, contrasting an employé


Reason for rule.-"These ers and deprives minor employees of in a shop with five employés with various acts, although having cerproperty without due process of law, those having less. No employé is tain features in common, neverthesince one questioning an act as vio- complaining of this act in this case. less differ widely in many essential lative of the federal constitution The argument based upon such dis- aspects. Some are compulsory. must show that the alleged unconsti- crimination, so far as it affects em- Some prohibit contracts for a differtutional feature of the law injures | ployés by themselves considered, ent form of compensation, and make him, in order to raise the question cannot be decisive; for it is the well- criminal under severe penalties failof its constitutionality. Sayles v. settled rule of this court that it only ure to comply with their terms. Foley, supra. (6) One not a parent hears objections to the constitution- Some provide for strict State insuror a minor cannot assert that a ality of laws from those who are ance, while others do not. The parent is deprived of his right of themselves affected by its alleged amount of compensation afforded and action for injury to his minor child. unconstitutionality in


feature the circumstances under which it is Mackin v. Detroit-Timkin Axle Co., complained of." Jeffrey Mfg. Co. v. to be awarded differ. The diversity 187 Mich, 8, 153 NW 49. (7) An Blagg, 235 U. S. 571, 576, 35 SCt 167, of public policy already manifested allegation that a provision that, "in 59 L. ed. 364. (2) "In this, an appeal between the several States is considthe employment of minors, section 2 by an employer, it is urged that the

erable. To say that such acts are shall be presumed to apply unless right of rejection by the employé is intended to operate on injuries rethe notice be given by or to the unduly clogged: First, because of ceived outside the several States enparent or guardian of the minor" is

requirements concerning the acting them would give rise to many void will not be considered when it form and verification of the notice; difficult questions of conflict of laws. appears that decedent was thirty- and, second, because the sufficiency

It would require a large defour years old at the time of his of these is to be passed on by the pendence upon the comity of other death. Sexton V. Newark Dist. Tel. commissioner; the act is challenged States in enforcing our act and in Co., 84 N. J. L. 85, 89, 86 A 451 [aff because section 3 authorizes the com- refraining from enforcing their own 86 'N. J. L. 701, 91 A 1070]. (8) missioner to return a rejection by as to a subject which commonly is "Now, speaking as to the employés the employé if it fails to comply, in wholly under the control of the sevexcluded, their exclusion is either form or verification, with the re- eral States, and with which, it has the granting of a privilege denied to quirements of the act, it being urged been pointed out, a substantial numothers or the imposition of a burden that this is power to construe con- ber have already manifested a pur: from which others are relieved. If tracts against their terms.


pose to deal by a new and special the last, it suffices that no excluded there is a contention that the act is legislation. No court of any sister person is here complaining, and that void because it interferes with the State, so far as we are aware, has appellant has no grievance because exclusive jurisdiction of the federal had occasion to pass upon the preothers are unfairly treated. Speak- courts of actions for injuries of em- cise questions here presented." In ing from the angle of those included, ployés of railroads, in that injuries re Gould, 215 Mass. 480, 487, 102 NE their inclusion is either a burden to such employés are not excepted 693, AnnCas1914 D 372. not placed on others, or a privilege

in the act. Section 22 of the act 46. Conn.--Kennerson v. Thames not shared by others. If the last, guards against this very interfer- Towboat Co., 89 Conn. 367, 94 A 372, there is no grievance. One may not ence with federal law. But, in any

LRA1916A 436 and note. well complain of a discrimination view, the alleged interference does N. J.-Rounsaville V. Central R. consisting of his being treated better not concern appellant." Hunter V. Co., 87 N. J. L. 371, 94 A 392. than others." Hunter

Colfax Colfax Cons. Coal Co., (Iowa) 154 N. Y.--Post V. Burger, 216 N. Y. Cons. Coal Co., (Iowa) 154 NW 1037, NW 1037, 1048.

544, 111 NE 351, AnnCas1916B 158 1053. (9) "Upon the argument much 43. Jensen v. Southern Pac. Co.. and note; Spratt v. Sweeney, etc., Co., was said concerning the constitu- 215 N. Y. 514 109 NE 600, LRA1916A 168 App. Div. 403, 153 NYS 505. tionality of a legislative act 403 and note, AnnCas1916B 276.

R. I. —Grinnell v. Wilkinson, 98 A pelling contribution from one person, 44. De Biasi v. Normandy Water 103. or employer, to be used in paying Co., 228 Fed. 234, 235 (holding, with W. Va.—Gooding v. Ott. 87 SE 862. for the negligence of another.

reference to the New Jersey act of Que.- Vincent V. Grand Trunk R. That is a defense only to be made July 4, 1911, $ 2 par 12, amended by Co., 45 Que. Super. 353. by those obliged to contribute to, or the act of April 17, 1914 [P. L. 499), "The place where the accident octhose charged with the duty of ad- that, under art 1 of the treaty be- curs is of no more relevance than ministering, the funds contributed." tween the United States of America is the place of accident to the asMeese v. Northern Pac. R. Co., 206 and his majesty the king of Italy, sured in an action on a contract of Fed. 222, 225 (rey on other grounds concluded on Febr. 25, 1913, amend- accident insurance, or the place of 211 Fed. 254, `127 CCA 622 (rev U. ing art 3 of the treaty of Febr. 26, death of the assured in an action on S.)).

1871, which reads, “The citizens of a contract of life insurance. Roun[b] A taxpayer may urge that, by each of the high contracting parties saville v. Central R. Co., 87 N. J. L. the unlawful expenditure of the shall receive in the states and terri- 1 371, 374, 94 A 392.



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case where it is intended that the contract shall enforce is based on contract and not on tort.4

No be wholly performed without the state,

on the

distinction is made between the optional and the theory that the obligation which it is sought to compulsory statutes.49 The intention that a com

[a] Reasons for rule.--(1) "If | pensation, and that the effect of our the employment within the act. our Act intends its contracts of em- decision may be to allow a double Ordinarily a statute has no extraterployment to include compensation recovery, we can only say that ques- ritorial effect. But where the regufor injuries occurring only within tions of that kind had better be lar service of the employé is being our jurisdiction, it manifestly de- dealt with as they arise, and in the performed in the state, and, as an feats its own ends. In that case the light of the exact scheme of com- incident to it, he goes over the state employer may not charge to the in- pensation that may be involved. It

line temporarily, we have held that dustry the compensation for injuries is enough for the present to say such temporary absence from the occurring without the State, and the that recovery of compensation in two state does not relieve the employer employee or his dependents may not states is no more illegal, and is not from liability under this statute.” collect the same. Neither employer necessarily more unjust than recov- Gardener v. Horseheads Constr. Co., nor employee can know what portion ery upon two policies of accident or 156 NYS 899, 901. of this period of employment will be life insurance.' Rounsaville v. Cen

Kennerson V. Thames Towsubject to the provisions of the Act, tral R. Co., 87 N. J. L. 371, 374, 94 A boat Co., 89 Conn. 367, 94 A 372, and no provision for insurance of 392.

LRA1916 A 436; Post V. Burger, 216 this liability will be practically pos- [c] Practical dificulties may be N. Y. 544, 556, 111 NE 351, AnnCas sible, since it may not ordinarily be overcome.--"We appreciate that any 1916B 158; Grinnell


Wilkinson, known what part of the service will determination that may be made of (R. I.) 98 A 103; Gooding v. Ott, (W. be in and what part out of the State, the question under consideration Va.) 87 SE 862. or in what jurisdiction the service (extra territorial effect) will result "If the relation between the emwill be performed, in industries and in some practical difficulties in ad-ployer and employee is contractual commercial enterprises engaged in ministering the statute, but the diffi- the contract should be construed as intrastate and interstate employ-culties that will be met with in ad-binding upon both parties thereto ment. The State boundary is not ministering the statute construed as without limitation as to territory the limit of very many businesses. requiring a contract binding upon

the same as all ordinary contracts, To subject them to the laws of the

both parties without limitation will many jurisdictions in

based upon mutual agreement indewhich they be less burdensome than the difficul- pendent of statutory duty." Post v. may be engaged will be especially

ties that would be experienced with Burger, supra. burdensome to them, and involve a contrary construction of the stat

(a) Contrary them probably in greater expense

ruling distinute. The practical difficulties that and liability and far greater difficul

guished—“We must accept the conmay be met in administering the

the under

accorded ties than

struction old


system. statute as herein construed can be Equally hard will it prove to the em

setts Act by its Supreme Judicial substantially overcome by adopting Court [In re Gould, 215 Mass. 480, ployee since he must pursue his rem- rules for the commission or perhaps 102 NE 693, AnnCas1914D 372]. It edy in the State of the accident, or by further legislation."

Post V. the Federal court applying

may be well, however, to point out that

Burger, 216 N. Y. 544, 559, 111 NE State's law, and thus he may be

that the court does not state that its 351, AnnCas1916B 158.

Act is contractual in character. brought under any one of many dif- 47. Gardener V. Horseheads ferent compensation Acts, with

we have indicated, is of

That, as Constr. Co., 156 NYS 899 (holding final' importance in whose provisions he cannot hope to

the conclusion that where an employer, with an be familiar; some Acts contractual

we reached concerning our own Act. office in New York and carrying inin character, some compulsory, some

Then, too, under the Massachusetts surance as to employees engaged in Act, the employee is merely the beneoptional, and some ex delicto; and he

work in the state, under the work- ficiary under a contract between the may find he has forfeited the benefit

men's compensation law [Consol. L. of the foreign Act through failure

employer and the insurer; with us c67], the pay rolls on jobs outside to comply with its provisions. A

the employer and employee enter reading of the several Acts now in

the state not being used as a basis into a contract relation. In its referforce convinces us that these diffi

for such insurance, employed dece- ence to and comment upon certain

dent, while he was out of the state, culties are not imaginative, but im

sections of their Act, the court says to

in engage


the employment minent Kennerson

the actualities.

that it must be found within V. Thames Towboat Co., 89 Conn. 367,

which he was engaged in Pennsyl- Act from 'unequivocal language,' or 375, 94 A 372, LRA1916A 436. (2) vania at the time of his death, com- 'plain and unmistakable words,' that

the Act was "It was the intention of the legis. pensation could not be awarded, al

intended to relate to lature to secure such injured work

though the contract be regarded as injuries without the Commonwealth. men and their dependents from be

one made in New York); Gooding v. We have adopted a broader rule. We

Ott, (W. Va.) 87 SE 862. Compare coming objects of charity, and to

read our Act in the light of the purJohnson make reasonable compensation for

v. Nelson, 128 Minn. 158, pose, subject-matter, and history of injuries sustained or death incurred

150 NW 620 (where, without discus- the Act, to determine whether it exby reason of such employment a part

sion of the applicability of the Min-pressly or by reasonable inference of the expense of the lines of busi

nesota law, the court held that the intended to include in its contract included

Wisconsin within the definition

compensation act ness

was injuries without

jurisdiction. of hazardous employments as stated

properly pleaded in defense to a tort This is our ordinary rule in the interin the act.

The danger of

action in Minnesota under the fol- pretation of statutes. The Massainjured workingmen and their de

lowing facts: Plaintiff, on April 2, chusetts court states that 'the subpendents becoming objects of charity

1913, entered defendant's employ on ject of personal injuries received by

railroad when an accident is just as great

construction work. He a workman in the course of his emoccurs outside the boundaries of the

worked at two different places in ployment is within the control of state as it is when it occurs within

Minnesota. On June 26 of the same the sovereign power where the inthe state. The interests of the state

year he was asked to go to Wiscon- jury occurs. And it argues that, if in its citizens is just as great in one

sin on similar work there being done the Act had intended employers and case as in the other. The provisions by defendant. He accepted, and was employees from different States to in the act making the insurance of injured four days thereafter.


carry their domiciliary personalemployers a part of the scheme and

original hiring was for no definite injury law with them into other purpose of the act are to make cer- time and for no particular place. On jurisdictions, it would have tain that the compensation provided

June 10 defendant had elected to pressed its intent in unambiguous by the act will be paid. The failure accept the provisions of the Wis- words. This argument concerns to provide such insurance takes consin Workmen's Compensation Act proceeding to enforce an ex delicto away in part the benefits that the [St. (1913) $ 2394-8]).

claim, not one for compensation by employer receives pursuant to


[a] Permanent and temporary ab- way of contract. It is also argued act. The employer in this case as

distinguished.-"In this case that, if an Act is given extraterrisented to the contract of employ

the decedent had not been employed torial force, similar effect must be ment under the act to the extent of by the appellant in the state since given to like laws of other States, providing insurance with the insur- 1912. His employment had not been if contracts of employment cover ance carrier. The act, in view of its continuous, but had been from time compensation for injuries outside humane purpose, should be construed to time for certain jobs which were the State, recovery for these will be to intend that in every case of em- being performed entirely without the governed by the usual rules for the ployment there is a constructive con- state. The contract of employment construction and enforcement of all tract between the employer and em- did not contemplate any work by contracts. We should give similar ployee, general in

its terms and him within the state; no such work effects to contracts of like character unlimited as to territory, that the was done. The statute in question to those before us, though made employer shall pay as provided by is intended to regulate the relations under a compensation Act of another the act for a disability or the death between the employer and employé jurisdiction, provided they did not of the employee as therein stated. in hazardous employments within conflict with our law or public polThe duty under the statute defines the state, and to protect the employé icy, and the machinery provided for the terms of the contract." Post V. within the state from the ordinary the ascertainment and collection of Burger, 216 N. Y. 544, 553, 111 NE risks the employment, and to the compensation could be used in 351, AnnCas1916B 158.

charge those risks upon the ultimate our jurisdiction." Kennerson [b] Double recovery.-"There is consumer.


mere fact that Thames Towboat Co., 89 Conn. 367, no proof in the pending case as to employé is engaged by a resident of 380, 94 A 372. LRA1916 A 436. the law of Pennsylvania. If it be the state to go out of the state for Nature of obligation see supra § 4. said that the Pennsylvania law may service, and no service in the state is 49. Post V. Burger, 216 N. Y. 544, provide a different scheme of com- contemplated or done, cannot bring 111 NE 351, AnnCas1916B 158. C. J.











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17 [021] I. Impairment of Right to Contract. garnishment, or in any way be held for debt." The elective compensation acts are held to work [022] J. Delegation of Judicial Powers and no impairment of the right to contract, either Deprivation of Courts of Jurisdiction. The creagenerally," or on the part of the employee12 or tion by the compensation acts of boards or comthe employer."


In any event the right of the missions having authority to pass on claims for legislature to impair the right to contract, in the injuries and to make awards does not constitute exercise of the police power, is recognized."4 Hence an unwarranted delegation of judicial powers, even a compulsory compensation act may be sus- the decisions being based on the various grounds tained on the theory that the right is subject to that such boards are administrative agencies, alreasonable restrictions for the welfare of the though exercising quasi judicial powers, is that they state;15 and on the same theory restrictions on do not have the final authority to decide and to the right to contract intended to prevent evasion render enforceable judgments,20 or that under the

16 or circumvention of the statute are sustained, elective statutes they are in effect boards of arbias are provisions that no payment under the act tration by agreement.21 Notwithstanding a

conshall be assignable or subject to attachment or stitutional provision vesting the judicial power in Co., (Iowa) 154 NW 1037; State v. islature may make provision against amount of coal mined and the Seattle, 73 Wash. 396, 132 P 45. having the legislative intent to

amount of wages paid, and providing Obligation of contract generally as such act thwarted. To put the ban a summary method for the disposisubject to police power see Consti- upon such influences interferes with tion of claims filed under the law, tutional Law [8 Cyc 997].

right of contract, but simply was not unconstitutional as confer11. Hawkins v. Bleakley, 220 Fed. heads off one method of evading and ring judicial power on the state au378; Hunter v. Colfax Cons. Coal Co., crippling the act. One underlying ditor having charge thereof. Cun(Iowa) 154 NW 1037.

purpose of the statute is to promote ningham y. Northwestern Impr. Co., 12. Deibeikis v. Link-Belt Co., 261 acceptance by the employé. No valid 44 Mont. 180, 119 P 554. Ill. 454, 104 NE 211, AnnCas1915 A right is infringed by making taboo [b] In Oregon, under Const. art 7 241; Mackin v. Detroit-Timkin Axle the employment of methods that 8 i, as amended in 1911, the legislaCo., 187 Mich. 8, 153 NW 49; Sayles might press the employe to reject." ture was authorized to confer juv. Foley, (R. I.) 96 A 340 (holding Hunter V. Colfax Cons. Coal Co., dicial powers on the state industrial that Pub. L. (1912] c 831 art 1 § 6, supra.

accident commission, created by the providing that an employee of

[a] For example the following workmen's compensation law, since accepting employer waives his com- provisions have been sustained: (1) under the amendment the legislature mon-law action unless he gives

contract, rule, regulation or or the people may confer judicial notice of such claim to the employer, device whatsoever shall operate to powers on any tribunal selected, so does not render the act invalid as relieve the employer, in whole or in long as the different departments of destroying the right of freedom of part, from any liability created by government are not made to encontract, since such provision sim- this act except as herein provided." croach on each other. Evanhoff v. ply creates a presumption in the ab- Hunter V. Colfax Cons. Coal Co., State Industrial Acc. Commn., 78 Or. sence of such notice leaving the em- (Iowa) 154 NW 1037, (2) "Any con- 503, 154 P106, ployee free to accept or to reject the tract of employment, relief benefit or 19. Mackin V. Detroit-Timkin act).

insurance or other device whereby Axle Co., 187 Mich. 8, 153 NW 49; 13. Hunter v. Colfax Cons. Coal the employe is required to pay any Middleton v. Texas Power, etc., Co., Co., (Iowa) 154 NW 1037 (sustaining premium or premiums for insurance (Tex.) 185 SW556; Borgnis v. Falk the provisions of the Iowa act that against the compensation provided Co., 147 Wis. 327, 358, 133 NW 209, every employer, subject to its pro- for in this act shall be null and 37 LRANS 489. visions, shall insure his liability / void.” Hunter V. Colfax Cons. Coal "We do not consider the Industrial thereunder in some organization ap- Co., supra.,, (3) "No employe or bene- Commission a court, nor do we conproved by the state department of ficiary shall have power to waive any strue the act as vesting in the Cominsurance, and further provisions as of the provisions of this act in re- mission judicial powers within the to this and the supervision and regu- gard to the amount of compensation meaning of the constitution. It is lation of taking and maintaining which may be payable to such em- an administrative body or arm of such insurance, together with pro- ploye or beneficiary hereunder to

the government which in the course visions as to the methods by which whom the act applies." Hunter V. of its administration of a law is the insurance can be carried by mu

Colfax Cons. Coal Co., supra. (4) empowered to ascertain some questual arrangement by the employer "Any contract or agreement made by tions of fact and apply the existing and employee, or under which the any employer or his agent or attor- law thereto, and in so doing acts employer may carry his own risk; ney with any employe or any other quasi-judicially, but it is not thereby and various other regulations and beneficiary of any claim under the vested with judicial power in the supervisions of these arrangements provisions of this act within twelve constitutional sense." Borgnis V. for carrying insurance, for terminat- (12) days after the injury shall be Falk Co., supra, ing such arrangements, and the like). presumed to be fraudulent." Hunter

Mackin V. Detroit-Timkin 14. Hunter V. Colfax Cons. Coal v. Colfax Cons. Coal Co., supra. (5) Axle Co., 187 Mich. 8, 153 NW 49. Co., (Iowa) 154 NW 1037, 1050.

"The compensation herein provided 21. Deibeikis v. Link-Belt Co., 261 "While the right to contract is a shall be the measure of the responsi- Ill. 454, 104 NE 211, AnnCas1915A property right, like all other prop- bility which the employer has as- 241; Greene v. Caldwell, 170 Ky. 571, erty rights, it is 'subservient to the sumed for injuries or death that may 186 SW 648; Mackin v. Detroit-Timpublic welfare,' and may be taken occur to employes in his employment | kin Axle Co., 187 Mich. 8, 153 NW by the state in a well-directed effort subject to the provisions of this act. 49; Borgnis V. Falk Co., 147 Wis. to promote the public welfare by the and it shall not in any wise be re- 327, 133 NW 209, 37 LRANS 489. exercise of the police power." Hunter duced by contributions from

[a] “Being elective, the act does v. Colfax Cons. Coal Co., supra.

ployes." Hunter V. Colfax Cons. not become effective as to any em15. State V. Clausen, 65 Wash. Coal Co., supra.

ployer or employee unless such em156, 192, 117 P 1101, 37 LRANS 466.


Detroit-Timkin ployer or employee chooses to come "It is thought the act at bar inter- Axle Co., 187 Mich. 8, 153 NW 49. within its provisions. Having once feres with certain of the personal 18. 111.-Deibeikis Link-Belt elected to come within the provisions rights here defined, particularly with Co., 261 Ill. 454, 104 NE 211, AnnCas of the act, as long as such election the right of contract, and is for that 1915A 241.

remains in force the act is effective reason violative of this provision of Iowa.-Hunter

Colfax Cons. as to the party or parties making the constitution. But it is recognized Coal Co., 154 NW 1037.

the election, and in case an employer in the case cited, and in many others, Mich.--Mackin Detroit-Timkin and an employee both elect to come that these rights are not absolute. Axle Co., 187 Mich. 8, 153 NW 49. within the provisions of the act, the On the contrary, it has been many Minn.--State V. Meeker County act itself then becomes a part of the times said that there is no absolute Dist. Ct., 128 Minn. 221, 150 NW 623. contract of employment and can be right to do as one wills, pursue any Tex.--Middleton Texas Power, enforced as between the parties as calling one desires, or contract as etc., Co., 185 SW 556.

such. Under this view it cannot be one chooses; that the term liberty Wash.--State v. Mountain Timber said that by this act judicial power means absence of arbitrary restraint, Co., 75 Wash. 581, 135 P 646.

is delegated to boards of arbitrators, not immunity from reasonable regu- Wis.-Borgnis Falk Co., 147 contrary to the provisions of our lations and prohibitions imposed in Wis. 327, 133 NW 209, .37 LRANS constitution. Parties to a contract the interests of the community." 489.

may make valid and binding agreeState v. Clausen, supra.

[a] The Montana Miners' Com- ments to submit questions in dispute 16. Hunter v. Colfax Cons. Coal pensation Act (L. (1909] c 67), pro- or any disagreement that may arise Co., (Iowa) 154 NW 1037, 1050; In re viding indemnity for injured em- to a board of arbitrators composed Opinion of Justices, 209 Mass. 607, ployees engaged in coal mining from of persons or tribunals other than 96 NE 308.

a fund to be collected from a tax the regularly organized courts, and "Assuming there

be a

valid levied on the workmen and the coal such agreements will be enforced. compensation act, certainly the Leg- operators in accordance with the ! (Pacaud v. Waite, 218 Ill. 138, 75









specific courts, the legislature may be given power, Provision for arbitration. A provision in an as has been done in some jurisdictions by a con- elective act for the formation of a committee of stitutional amendment, to vest a board or commis- arbitration in case of disputed claims, the decision created under a compensation act with judi- sion of which is reviewable by the industrial comcial powers." In such a case the authority of the missioner, and on which a decree is rendered by legislature is of course measured by the terms of the district court, has been sustained as against a the amendment.2 A statute creating a state contention that it is an improper delegation of board to establish a state insurance fund from judicial power and a denial of a judicial hearing.25 premiums paid by employers and employees has Depriving courts of jurisdiction. The elective been held not invalid as a delegation of judicial acts are not invalid as depriving the parties of all powers. 24

right to resort to the courts.? NE 779, 2 LRANS 672.) By elect- | therein, leaving none at the disposal | would be valid--we hold that, even ing to accept the provisions of this of the legislature. Authority to the if submission be compulsory. there act the employer and the employee legislature to create another state is here no unwarranted delegation. thereby agree to settle by arbitra- tribunal and vest it with judicial It does not at all follow from protion any dispute that may arise be- power over this new class of cases nouncements that judicial power tween them in reference to compen- must be sought for elsewhere in the may not be delegated, that none but sation for injury." Deibeikis v. Link- constitution. It is found only in the duly constituted constitutional courts Belt Co., 261 Ill. 454, 465, 104 NE aforesaid section 21 of article XX. may exercise judicial power.” Hunt211. AnnCas1915A 241.

It follows that this section measures er v. Colfax Cons. Coal Co., (Iowa) 22. Western Metal Supply Co. v. and limits the legislative power in 154 NW 1037, 1061. Pillsbury. (Cal.) 156 P 491; Pacific that respect. The second sentence [b] "It is not wholly clear that Coast Casualty Co. V. Pillsbury, 171 of the section authorizes the creation here there is a delegation of judicial Cal. 319, 153 P 24; Englebretson v. of a state board to settle disputes power. It might, perhaps, as well Industrial Acc. Commn., 170 Cal. 793, arising under the legislation author- be claimed that what has really been 151 P 421 (holding that, as Const. ized by the first sentence. This delegated is not judicial power, but art 20 $ 21, amended, under includes only disputes arising out power by award and resulting entry which the Workmen's Compensation of the newly to be created liability of decree to apply the measure of Law was enacted, did not authorize oť an employer to his employee for damages created by legislative act, the legislature to delegate to the an injury incurred by such employee delegation of legislative rather commission, as was attempted by in the course of the employment. than of judicial power." Hunter v. $ 75 subd 6, power to regulate and It is these injuries only the redress Colfax Cons. Coal Co., (Iowa) 154 to prescribe the nature and the ex- of which may be committed by the NW 1037, 1060. tent of the proofs and the evidence, legislature to a state industrial acci

26. Hunter V. Colfax Cons. Coal such attempted delegation is in- dent board. Hence it follows neces- Co., (Iowa) 154 NW 1037; Borgnis v. valid).

sarily that the legislature cannot Falk Co., 147 Wis. 327, 133 NW 209, Commission exercising ju- give such board power to settle dis- 37 LRANS 489. dicial powers.-"It is true that, in putes and allow compensation from [a] Extent of ouster of jurisdioseveral cases involving compensa- the employer to a person who has tion. If assume the statute tion statutes, it has been held that been or is an employee, for a per- would be void if it operated to oust the boards or officers authorized to sonal injury which was not incurred the courts of all jurisdiction to try determine the facts upon which the by him in the course of' his employ-controversies between employer and right to compensation arose were ment, or which happened after the employé, it is an immaterial concesexercising executive or administra- employment had ceased and was not sion in the cases wherein the act is tive rather than judicial powers. the natural and proximate result of rejected. For, when rejected, the Kennerson v. Thames Towboat Co., the employment, or of some injury courts are not ousted of jurisdiction 89 Conn, 367, 94 A 372, LRA1916A which did occur in the course of his in toto, and, as we view it, not de436; Mackin v. Detroit-Timkin Axle employment. It could not give such prived of it at all. Where the act is Co., 187 Mich. 8, 153 NW 49; Borgnis board power to allow compensation rejected the full dispute between the v. Falk Co., 147 Wis. 327, 133 NW to McCay for the additional disabil- | parties is still submitted by ordinary 209, 37 LRANS 489. But in none of ity or expenses arising from the proceedings, and tried in the usual these cases was the court consider- slipping of the broken bone, unless way. True, some mere rules of proing a statute which gav to a com- such slipping was the natural cedure are changed, some defenses mission powers as extensive as those proximate result of the original in- are eliminated, and there

is some vested by our law in the industrial | jury." Pacific Coast Casualty Co. v. change in burden of proof. Even if accident commission. We shall not Pillsbury, 171 Cal. 319, 322, 153 P 24. it be assumed that these changes are take the time to review in detail the 24. State v. Creamer, 85 Oh. St. unauthorized, the objection is not cases just cited, but content our- 349, 400, 97 NE 602, 39 LRANS 694 sustained that on rejection of the selves with saying that we think (where the court said of 102 Oh. L. act the courts no longer have juristhere is nothing in them which p 524: "If

the board is a court diction to try suits for the injury of would support the claim that the there is an end of the whole matter. an employé. A somewhat more dimpowers exercised by the industrial The statute would be unconstitu- cult question arises when the proaccident commission of this state in tional. For if the board is a court visions of the act are accepted. In making awards of compensation are it has not been created in accord- that case, if the parties cannot come not strictly judicial." Western Metal ance with the manner provided by to an agreement, compensation fixed Supply Co. v. Pillsbury, (Cal.) 156 the constitution. We do not consider by statute schedule is awarded by P 491, 493.

the Board of Awards a court, or in- arbitration provided for in the act. 23. Pacific Coast Casualty Co. v. vested with judicial power within In a sense, then, the acceptance of Pillsbury, 171 Cal. 319, 153 P 24. the meaning of the constitution. It the statute operates to take from the

[a] "The constitutional provision is created by the act purely as an courts so much of the controversy is that the legislature may 'create administrative agency to bring into as is determined by the applying of and enforce a liability on the part being and administer the insurance the statute schedules through the of all employers to compensate their fund, and the fact that it is empow- agency of the statute arbitrators. employees for any injury incurred ered to classify persons who come Before we reach the question by the said employees in the course under the law and to ascertain facts whether, if this constitute a total of their employment.' It proceeds to to the application of the fund, ouster of the jurisdiction of the declare that the legislature may does not vest it with judicial power courts, it would invalidate the act, establish an industrial accident within the constitutional sense"). we,

of course, have to determine board and empower it to settle dis- 25. Hawkins v. Bleakley, 220 Fed. whether such total ouster is putes concerning the liability which 378. 382; Hunter v. Coifax Cons. effected. We are forced to deal with the legislature may create under the Coal Co., (Iowa) 154 NW 1037.

this question as one of first impresauthority so given. (Art. XX, sec. "Arbitrations existed at common sion, because no decision that sus21.) This action by such board law, and they are allowable under tains the Compensation Act of other would be an exercise of judicial the Iowa statute. The conclusion states is applicable. The Washingpower. For that purpose it is, in and award of an arbitrator can be ton Act and that of Massachusetts legal effect, a court. Section 1 of enforced by judicial proceedings. reserve recourse to the courts and article VI vests the judicial power There is nothing new about all this. full judicial review,

Borgof the state in the senate, sitting And these arbitrations are agreed to nis v. Falk Co., 147 'wis. 327, 133 as a court of impeachment, in a su- under this statute either by specific NW 209, 210, 37 LRANS 489, suspreme court. district courts of ap- agreement or by acquiescence." tains the Wisconsin act with a holdpeal, superior courts,' and such in- Hawkins v. Bleakley, supra.

ing that there is review if the act be ferior local courts as the legislature [a] Judicial power not restricted without power or fraudulent, that if may establish. Under this provision to courts.-"Assume the delegation the board act without or in excess of the legislature would be without au- is one of judicial powers, while if its jurisdiction, there may be action thority to give judicial power to any the parties are left wholly free on in court to set aside the award, and general state board or tribunai. whether to reject or accept this that this may also be done if its findExcept for local purposes the sec- arbitration

and resulting court ings of fact are not supported by the tion disposes of the whole judicial | orders, it is, perhaps, not strictly evidence. Our act has no such reserpower of the state and vests all of necessary to determine whether en- vations, in terms, and therefore these it in the courts expressly named

forced submission to said procedure I decisions afford us no light.



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Right to review. The fact that a right of appeal that the power is given the employer to choose from an administrative board is not granted does from two alternative schemes, both clearly and not constitute an encroachment on the judiciary completely defined by the law and designed to where the right of review by certiorari remains afford compensation for an accident to another, so open.27 The parties cannot be deprived of the long as that other is not bound by the employer's right to have a court review of the action of the choice but is left free to make his own choice.29 board to the extent of determining whether it has [24] L. Subject and Title of Act. In several acted illegally or without jurisdiction.28

of the states particular compensation statutes have [$ 23] K. Delegation of Legislative Authority. been held not to violate constitutional requirements An elective compensation act is not invalid as a that every act shall embrace but one subject which delegation of legislative authority for the reason shall be expressed in its title,30 the tests applied We are in no doubt that the very acted without or in excess of its

an appropriation to carry out the structure of the law of the land, and powers; (2) that the award was pro- | provisions of this act, and restrictthe inherent power of the courts, cured by fraud; and (3) that the ing the right to compensation would enable them to interfere, if findings of fact do not support the damages in such cases to such as what we have defined to be the juris-award. We regard the expression

provided by this act."

Pub. diction conferred upon the arbitra- 'without or in excess of its powers' Acts (Ex. Sess. 1912) No. 10 p 20; tion committee were by it exceeded- as substantially the equivalent, or at Mackin v. Detroit-Timkin Axle Co., could inquire whether the act was least inclusive, of


expression 187 Mich. 8, 11, 153 NW 49. (3) “An being enforced against one who had 'without or in excess of its jurisdic- act providing for the protection and rejected it, whether the claiming em- tion,' as those words are used in

safety of workmen in all places of ployé was an employé, whether he certiorari actions to review the de; employment and for the inspection was injured at all, whether his in- cisions of administrative officers and and regulation of places of employjury was one arising out of such bodies. We know of no other con- ment in all inherently hazardous employment, whether it was due to struction that can be logically given works and occupations; providing a intoxication of the servant, or self- to them, and it seems to us that they schedule of compensation for injury inflicted or, acceptance being con- were designedly and advisedly in- to or death of workmen and methceded, into whether an award differ- serted by the framers of the bill to ods of paying the same, and preent from the statute schedules had meet the very objection which is now scribing the liability of employers been made, into whether the award made. With this construction, it is who do not elect to pay such comwere tainted with fraud on part of certain that the constitutional pow- pensation; establishing the industhe prevailing party, or of the arbi- ers of the courts have not been in- trial accident board, defining its tration committee, and into whether vaded, and that no man without his powers and duties; and providing that body attempted judicial func- consent can be brought under the for a review of its awards. L. tions, in violation of or not granted law or is deprived of his right to (1915) 96

p 168; Lewis, etc., by the act. All of which establishes due process of law' thereby." Borg- County V. Industrial Acc. Bd., the statute works no complete ouster nis v. Falk Co., 147 Wis. 327, 360, (Mont.) 155 P 268, 269. (4) "An act of jurisdiction, the only ouster which 133 NW 209, 37 LRANS 489.

prescribing the liability of an emis condemned. The utmost it does


Sayles v. Foley, (R. I.) 96 A ployer to make compensation for is to provide administrative ma340.

injuries received by an employee in chinery for applying rates of com- (a) “The employer has the first the course of employment. estabpensation fixed by the Legislature move, so to speak. If he does not lishing an elective schedule of comas between parties who have agreed elect,' the parties remain under the pensation, and regulating procedure to have the amount of compensation,

common law
as modified by

for the determination of liability merely, thus determined." Hunter V. statute itself, the employé with his and compensation thereunder." L. Colfax Cons. Coal Co., (Iowa) 154 previous rights undiminished and (1911) C 95 p 134; Huyett v. PennNW 1037, 1062, 1064.

the employer shorn of some of his sylvania R. Co., 86 N. J. L. 683, 92 27.


If the employer A State v. Meeker County Dist. previous defenses.

(5) "An act creating the

State Ct., 128 Minn, 221, 150 NW 623. elects to come under the compensa

Industrial Accident CommisCourter

sion 28.

tion scheme of the statute, the em-
Simpson Constr.

providing Industrial Co., 264 Ill. 488, 495, 106 NE 350; | ployé then has the opportunity of Accident Fund, making an appropriBorgnis V. Falk Co., 147 Wis. 227, electing by positive act to remain ation for such fund and providing 133 NW 209, 37 LRÁNS 489. Com

under the common law and to pre- for the administration of the terms

serve his remedies pare Hunter v. Colfax Cons. Coal Co.,

thereunder for of this act, providing for the collec(Iowa) 154 NW 1037 (where it is future accidents, or by inaction to tion and disbursement of funds for held that, in the absence of an

tacitly accept the compensation fea- the benefit, compensation and care tures of the act.

It is a press provision in the act, the in

of workmen, prescribing the duties somewhat unusual

extended herent powers of the courts would

of employers and workmen subject enable them to interfere were the application of the doctrine of the to this act, and providing penalties

election of remedies, but it does not for a violation of the terms of this jurisdiction imposed on the arbitration committee exceeded); State

involve a delegation of legislative act, and abolishing in certain cases

power. Journal Co. v. Workmen's Compensa

Sayles v. Foley, (Ř. I.) 96 the defenses of assumption of risk, A 240, 348.

contributory negligence and tion Bd., 162 Ky. 387, 388, 172 SW

the 30. Kan.-Shade V. Ash Grove negligence of 674, LRA1916A 402 (where the court,

fellow-servant in Lime, etc., Co., 93 Kan. 257, 144 P actions for in pointing out the objections to the

personal injury and 249.

death. L. (1913) 112


188; unconstitutional Kentucky act held

Ky:--Greene v. Caldwell, 170 Ky. Evanhoff V. State "Provision

Industrial Acc. on other grounds, said:

571, 186 SW 648. should be made in the act for appeal

Commn., 78 Or. 503, 514, 154 P 106.

Mich.-Mackin V. Detroit-Timkin (6) "An act relating to employers' to a court of competent jurisdiction

Axle Co., 187 Mich. 8, 153 NW 49. for review in all cases where com

liability and providing for the com

Mont.-Lewis, etc., County pensation of certain employes and pensation is denied or where a less

State Industrial Acc. Bd., 155 P 268. their representatives and benefisum is allowed by the board than

N. J.--Huyett v. Pennsylvania R. ciaries, for personal injuries that claimed by the injured Co., 86 N. J. L, 683, 92 A 58.

tained in the course of employment, ployee").

Or.-Evanhoff v. State Industrial and for deaths resulting from such "To deny a court review of those

Acc. Commn., 78 Or. 503, 154 P106. injuries, and to provide and deterquestions would violate the due proc- Tex,--Middleton v. Texas Power,

mine in what cases compensation ess of law provision of

the con- etc., Co., 185 SW 556; Consumers' shall be paid, and to make the pay: stitution."

Courter V. Simpson Lignite Co. v. Grant, (Civ. A.) 181 ment thereof the more certain and Constr. Co., supra. SW 202.

prompt by the creation of an in[a] Construction of statute.-"If [a] Tlustrations.- The follow- surance association to insure and the act before us took away from ing titles have been held not subject guarantee such payments and of an the courts the power to consider

to constitutional objections: (1) industrial accident board for the these jurisdictional questions, either "An Act to provide compensation expressly or by necessary implica- for workmen injured in certain haz-adjudication thereof for consenting

investigation of claims and for the tion, the contention that judicial urdou industries." L. (1911) c 218; / parties, fixing the membership and power had been vested in the Com

L. (1913) c 216; Shade v. Ash Grove powers of said board and its commission, contrary to the command Lime, etc., Co., 93 Kan. 257, 261, 144 pensation

and duties, and the of the constitution, would be of

P 249. (2) "An act to promote the method of its appointment, and the greater force, but we think that the welfare of the people of this State, term of office of its members, and act does not do this, or attempt to relating to the liability of employ- fixing also the powers, duties and do it. True, it says that the find

ers for injuries or death sustained liabilities of said insurance associaings of fact made by the Commission by their employees, providing com- tion and the extent of control over shall, in the absence of fraud, be pensation for the accidental injury the same to be exercised by the conclusive; but it provides for an to or death of employees and meth- Commissioner of Banking and Inaction in the circuit court for Dane ods for the payment of the same, surance, and providing also for the county, in which the board's award establishing an industrial accident insurance of payments of compenmay be set aside upon either of three board, defining its powers, providing sation to employees by certain other grounds, viz.: (1) that the board for a review of its awards, making insurance companies and organiza








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