3 1924 002 403 719 WORKERS' COMPENSATION by Hugh Victor Mercer, LL, M. Minneapolis T&P 1910 THE LIBRARY OF THE NEW YORK STATE SCHOOL OF INDUSTRIAL AND LABOR RELATIONS AT CORNELL UNIVERSITY WORKERS' COMPENSATION by Hugh Victor Mercer. LL. M. HI ' Minneapolis 1910 fr^tf ^'<*^o Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924002403719 PREFATORY NOTE. It became necessary in 1908 for some one to be- come chairman of the 'Committee on Jurisprudence and Law Reform of the Minnesota State Bar Asso- ciation and take up the leadership of the association on legislation to give workers compensation for in- juries received in the course of their employment. The Bar Association requested the writer to under- take that task ; the burdens of private practice pre- vented the pursuit of that work as it should be done, yet we yielded to the demand because of the press- ing needs of humanity for professional aid, al- though it withdrew us, at least temporarily, from the pleasant and fruitful study of another subject. The history that is given in this document is es- sentially connected with living personalities and we shall attempt to treat it with corresponding con- sideration. Our acknowledgment of thanks for able counsel is due especially to the following individuals for their respective aid : Franklin L. McVey, Ph. D., now president of the University of North Dakota, for consultations and counsel in the early stage of investigation of both theory and practice on the subject; Dean W. S. Pattee of the College of Law, University of Minnesota, for valuable materials on the European systems and for counsel, as the only member of the committee on Jurisprudence and Law Reform of the Minnesota State Bar Association that the writer, as chairman of that committee, could ever get to attend meetings; Mr. Pierce Butler, of St. Paul, for a valuable article on the law of Min- nesota read to the convention, which caused the Bar Association to take up the investigation of the sub- ject; employers, such as Andrew Carnegie, James J. Hill, Mr. Ranney of the International Harvester Company ; Mr. Redf ern, of the Burlington Railway, for valuable suggestions through correspondence; Mr. Moseley, secretary of the Interstate 'Commerce Commission; the various members of the political and executive committees of the labor organizations of the state, and especially Mr. W. E. MeEwen, af- ter he became State Labor Commissioner and a member of the Minnesota Employees' Compensation Commission; the various officers of the Minnesota Employers' Association, and especially Mr. George M. Gillette, president, and a member of the Min- nesota Compensation Commission, after he became interested in the subject; Eugene V. Debs for sug- gestions on railway legislation of this nature; John Mitchell and Samuel Gompers for their public and private discussions of the subject (as will appear from the body of this article, the knowledge was not far advanced with either when the writer brought it to their attention) ; the members of the Wisconsin and New York Commissions studying the same question; the officers of the American Asso- ciation for Labor Legislation; all of the parties that took part in the original and adjourned meet- ings of the Atlantic City Conference, held in July, 1909, at the request of the Minnesota Commission and called in the name of the writer; various lia- bility insurance companies and the librarians of the larger libraries, as well as the writers from whose articles we take information specifically cited here- in ; Professor Henderson's book entitled "Industrial Insurance in the United States" (which was pub- lished after we got well into the study) ; Messrs. Lee K. Frankel and Miles M. Dawson, who studied the question during the summer of 1908 in Europe for the Russell Sage Foundation; Hon. Ohas. P. Neill, U. S. Commissioner of Labor; others too nu- merous to mention. WORKERS' COMPENSATION. I. Desirability. II. Possibility. III. Practicability. Desirability. The first question is: Is a workers' compensation act changing the pres- ent theory of liability from that of negligence or fault of the employer to that of a risk of the in- dustry or industrial insurance desirable? We answer this question in the affirmative, pro- vided a system can be worked out which will be fair to the employe as well as to the employer, and just to the state. Present Accidents. There are no complete statistics of industrial ac- cidents in this country ; certain localities have some, certain industries like railroads have others; cer- tain insurance companies have many; certain bu- reaus have still others; and some of the state com- missioners engaged in trying to solve this problem have others ; but none are complete — none even ade- quate yet. Various estimates covering the industries of this country place the industrial accidents at from 300,- 000 to 2,000,000 per year. A safe estimate of such killed and wounded in this country annually would seem to he 500,000. There must he approximately fifty honest and deserving men, many of them hav- ing wives and small children, who meet death daily that we may have railroad transportation and coal, alone. The total losses in killed and wounded in the Union Army during the Civil War were 385,245 ( See Edwin Emerson, Jr., History of 19th Century Year by Year, p. 1426). The same authority puts the total killed in the Confederate Army at 94,000. Of course there were not so many employed as are now in our industries; but the whole Confederate Army — valiant men fighting for their liberty as they saw it — was unable to kill and cripple as many Union men in five years as are killed and crippled in our industries in a single year now. Indeed, our Union Army — one of the ablest ever congregat- ed — comprising 2,898,304 enlistments, of which 2,- 772,448 were actually engaged, with f 6,165,237,000 devoted to their cause, were only able to kill ap- proximately the number of men that the railroads and mines now kill in the same number of years. As early as the first message of Benjamin Harri- son to Congress in 1889 we find this language, later quoted by the Supreme Court in sustaining the Safety Appliances Act: "It is a reproach to our civilization that any class of American workmen should in the pursuit of a necessary and useful vocation be subject to a peril of life and limb as great as that of a soldier in time of war" (Johnson v. Southern Pacific Co., 196 U. S. 1). The laborers thus maimed and killed are not en- gaged in spectacular performances; they are led by neither call of fife nor beat of drum ; yet, their acts are no less patriotic; the sacrifices no less deserv- ing, although they yield to public protection and ag- gression through industry instead of war. The simple appreciation of these facts impresses all with the fundamental truth — the general wel- fare of the United States is not being reasonably protected in this respect. Accidents Should be Prevented. Of Course prevention is the ideal, but that cannot be completely accomplished under our present sys- tem of living. It can be and will be greatly les- sened. It will be lessened almost in proportion to the appreciation which it receives from both the em- ployer and employe, at worst as soon as the public is educated to live without rush and flash. Probably the surest way to cause the employer and employe to prevent or lessen the accidents will be to require both to carry the financial burdens as certamties and without the gambler's chance of suc- cess or defeat they each now have. With a certain liability, with a risk secured by contributions from each; with each as inspectors of both men and ap- pliances, with each realizing that their taxes or financial burdens aire lessened in proportion to the preventions, and relieved in proportion to the cures, mutual interest must greatly benefit. All men can know the financial risk, none will believe, at least, none appreciate, his own physical risk, but all can see the risk of others. Whatever the solution, it propably will come by placing! the economic risk upon them jointly, to be at least partially carried by the community, and in such a way as to make that serve the two pur- poses of (a) Prevention; (b) Protection when there is no prevention. The Present System. Generally speaking, the theory of recovery, at the present time, at common law and under the statutes, is, that the employer has done, or left undone, some- thing for which he is at legal fault. A duty im- posed by law in favor of the employe or the general public, including him, a violation of that duty, and an injury as a result without any intervening effi- cient cause, must concur to make liability. The em- ploye, upon the other hand, must have violated no duty, assumed no risk, committed no negligence contributing to the accident, and the injury must not result from the act of a fellow servant. In Jaggard on Torts, Vol. II, page 1029, it is said : "The rule as to fellow servants is of modern orig- in, and is judge-made law. The earliest case on the point is said to be Priestly v. Fowler (1837) . This 8 is regarded as not strictly a fellow-servant case at all. English courts, however, consider it the first case. The rule was first indisputably enunciated in 1841, in a South Carolina case {Murray v. Rail- road Co.). The opinion, however, which really es- tablished the doctrine was that of Chief Justice Shaw in Farwell v. Boston, & W. Ry. Co., in 1842. In 1858 the Scottish courts adopted the rule, and in the case of Bartonshill Coal Co. v. Reid, reported in full Chief Justice Shaw's masterly judgment." 3 Mees. & W. 1. In 1850 (Hutchinson v. Ry. Co., 5 Exch. 343) the English courts adopted the rule ful- ly and completely. See also Wigmore v. Jay, Id. 354. 24 Am. Law Eev. 179. Griffith v. Earl of Dud- ley, 9 Q. B. Div. 357-365. 1 McMul. (S, C), 385. The above quotation seems to be a fair statement of the rule. It is a noticeable thing that the case which originated this doctrine — Priestly v. Fowler, 3 Meeson & Welsby's, p. 1, Eng. 1837 — was one aris- ing out of the following facts : the master was mov- ing goods by van ; the plaintiff was his servant, and, under direction of his master, was traveling in the van driven by another servant carrying the goods for hire. The van broke down; the plaintiff was thrown to the ground and his thigh fractured. He brought action to recover from the master. Recov- ery was had in the court below but the judgment arrested by the House of Lords upon the theory that the workman could not recover for injuries sus- tained by him through the negligence of a fellow servant in overloading the van. The Court said : "It is admitted that there is no precedent for the present action by a fellow servant against a master. We are, therefore, to decide the question upon gen- eral principles and in doing so we are at liberty to look at the consequences of a decision the one way or the other. "If the master be liable to the servant in this ac- tion the principle of that liability will be found to carry us to an alarming extent." The court then proceeds to enumerate a large number of supposed cases in which a servant might recover if that claim were sustained. It is notice- able that many of the facts then counted absurd and used for the basis of argument would now be con- sidered as good grounds of action against the mas- ter, while the case then reversed might now be up- held on the ground that the negligence of the driver would not be imputed to one so injured (Howe v. M. W. & 8. S. By. Co., 62 Minn. 71-80). The Eng- lish court in that discussion feelingly depicted the responsibilities that would fall upon the master if the servant could recover in such cases. In fact, the "consequences" to the master alone rather than the consequences to both master and servant seem to have been the basis of the opinion. It was ad- mitted by Lord Ahinger in the opinion that : "He (meaning the master) is no doubt bound to provide for the safety of his servant in the course of his employment to the best of his judgment, in- formation and belief." His Lordship pointed out that the servant was as likely as the master to be acquainted with the prob- 10 abilities of injury and might decline the service if thought unsafe, and then stated : "In fact, to allow this sort of action to prevail would be an encouragement to the servant to omit that diligence and caution which he is in duty bound to exercise on the behalf of his master, to protect him against the misconduct or negligence of others who serve him, and which diligence and caution, while they protect the master, are a much better security against any injury the servant may sustain through the negligence of others engaged under the same master than any recourse against his master for damages could possibly afford." The Priestly case, as indicated by Judge Jaggard supra, is treated by Judge John F. Dillon in an ar- ticle in Vol. 24 of the American Law Review, on page 179 with this comment : "But as this is not strictly a 'fellow servant case at all' I pass it without comment." It would not be difficult to point out numerous inconsistencies, not only between various courts at- tempting to found their opinions upon this rule, but in many states between the decisions of the same court in different cases attempting to apply it. That, however, is not the purpose of this article. It is only mentioned as an added reason why the present system is an improper one. This last feature has been in a measure modified with respect to certain kinds of industries, such as railroading, by statute; in some instances it has been relieved by judicial interpretation, but all ob- stacles to the plaintiff have been frequently in- 11 creased at the hands of courts and lessened by the sympathy of juries. Probably the present justification of the civil jury system is partially due to its tendency to apply feel- ings of humanity rather than rules of logic or law; but courts sometimes withhold cases of doubtful liability from the juries that logic and law may counterbalance the "over humanity of jurors." There is, too, in some courts, at least, a tendency to recognize a day of more liberal allowances whenever verdicts are upheld. Assuming that a reasonably safe place to work and fairly competent servants are furnished, the employe has no better right to recovery for injuries due to the course of employment than has a Strang-. er who is not a trespasser; indeed the employer may owe a much higher duty to others, such as passen- gers. He may owe a less duty to the employe where the work is assumed with knowledge of the danger- ous employment or in case of negligence of a fellow servant. This disadvantage is so great in favor of employes that where a statute was passed in the state of Pennsylvania relieving railroad companies from lia- bility, in cases where employes could not recover, it took a decision of the Supreme Court of the United States to uphold that statute (Martin v. Pittsburg, etc., Co., 203 U. S. 284). The lines of law are often closely, and sometimes unfairly, drawn, the results uncertain and expen- sive to both sides and attendant with much vexa- tious delay. 12 Origin of the System. It is not to 'be wondered that the present system is found to be inadequate to the present exigencies. Perhaps more than in any other line of private law the conditions of society have outgrown the com- mon law, even including its modifications by judi- cial interpretation and legislative acts. The history of the various systems of law shows three great epochs : First : The common law, based upon customs so long observed that "the mind of man runneth not to the contrary." Second: The equity of conscience! — the theory by which the rigid rules of the common law are blended and obstructed to respectively meet the pe- culiar complex conditions of a growing society. Be- tween the basis of common law and the system of equity there is, theoretically, no gap. The system of equity begins ahead of the end of the common law ; it obstructs its rigid features ; blends its harsh rules, adds to its deficiencies; yet theoretically it follows the law and does not pretend ordinarily to supersede it upon a law subject like this. Each of these is largely declared and enforced by judicial decision and interpretation. This is essentially a slow growth, not only unsatisfactory but inade- quate to meet the rapid tendencies of a modernized society. 13 Third : Legislation, with varying importance has followed in all the great systems of law, to meet the growing conditions for which hioth custom and equity have proven inadequate. This was the case, evidently, under the Babyloni- an and Assyrian laws; it has been the case in China, it was the case in Rome and England, and it is the case in America. The question, therefore, with respect to the form of development of any line of the law, is simply to what epoch has it arrived. If the system is inade- quate has it only reached a stage needing slight modification of the old, or the establishment of a new theory? In this matter the question really is: Are the legal remedies insufficient? The common law was not made to meet present conditions and is consequently built on an insuffi- cient theory. Under the Assyrian monarchies, the Babylonian laws, and the other early Asiatic and European gov- ernments, the conditions were peculiar. Six cen- turies before Christ Nebuchadnezzar built a canal 400 miles in length, of large size; in fact, practically three times as great as the present Panama ditch that has so baffled this great country for a genera- tion. But this canal is supposed to have been built by the labor of slaves caught in successful battles in adjoining monarchies (See Rawlmson/s Mon- archies, pp. 245-7). He likewise built the Wall of Babylon containing 500,000,000 feet of solid mat- ter. 14 Under such a slave system no compensatory act was necessary and none existed — although we do find some matters of negligence treated, such as malpractice of dentists and physicians. With a slave, of course, the loss of his life or the incapacity of his body for service meant economic loss to the owner. The care of the slave fell upon the owner, and he procured medical aid and gave all necessary attention to shorten the incapacity as much as skill could then do. Even the humanitarian feeling was not totally wanting. There was therefore no nec- essity for compensation even had the slave possessed the standing of a man in court. When we come to Rome we find that there were considerable provisions in its elaborate and highly perfected system of private law that gave to per- sons injured by certain kinds of torts the right of recovery; that the degree of care varied in much the same terms as to the relative obligations as does our own ( Sanders Justinian by Hammond, pp. 401- 3) ; yet the test of care there started as it does here with the relative duties. The rules and degrees of care as to property, such as bailments, etc., were not far different from ours except that, "In each case the standard is the care which the person sought to be made liable takes about his own things" ( Sanders Justinian by Hammond, p. 403 ) , as distinguished from our rule of the standard of an ordinarily prudent man; domestic relations were built upon the theory of inequality before the law which was characteristic of their institutions. 15 Slavery in those days was considered a favor to the slave upon the theory that, "Generals order their captives to be sold and thus preserve them, and do not put them to death" (lb. 77). In the comments on the rights of persons on page 76, the same author tells us that slaves are not per- sons in law. Under the Roman law, the paterfamilias existed ; and under that the head of the family harbored not only his direct family but such of the collateral kindred as came under his jurisdiction and all of the servants and slaves of his household. For a con- siderable time he held the power of life and death over all of them. The loss of service, the expenses of treatment, the reduction in the economic value of his slave, all fell upon him and his descendants. There was then very little use for a compensatory act. Besides by Sec. 1, Title VIII (Hammond, p. 90), the Institutes provided: "Slaves are in the power of masters, a power de- rived from the law of nations, for among all na- tions it may be remarked that masters have the pow- er of life and death over the slaves, and that every- thing acquired by the slave is acquired for the mas- ter." This being then the law of nations the slave had no legal status and with him free labor could neith- er compete nor from his hardships arise. When the private system of Roman common law and equity was partially transferred into Europe 16 and mingled with the English common law and equity system, slavery still partially survived and there was added the modified element of military tenure. In the feudal system the loss, the expense, and in a measure the sympathy of the then lord was relatively selfish, and it was consequently for hi® advantage to see that the best care and attention should be given to replace the cog, in the wheel of that system. With the fading of those system® the growth of equality before the law was slow. So we find no law in England, in the early day, of the na- ture we are here discussing. The English common law system theoretically was transferred to America as one of England's de- pendencies; and, aside from a small section which adopted the theory of the Roman Civil Law — like Louisiana — the great body of the private common law of England, including its statutes at the time of independence, was adopted as the common law of this country, so far as not inconsistent with our constitutional systems or law. The South had its slavery, attendant with the commercial instincts of the owners, which there, as in Europe, instigated all necessary attention to the injured when accidents did occur. And the South was slow in manufacture; it was an agricultural community; it had few dangerous pieces of ma- chinery — and it needed no such law. Strange as it now seems, the theory that the slave was not a person in law was not confined alone to Europe. In the famous Dred Scott decision, Chief Justice Taney of the Supreme Court of the U. S. 17 speaking for the majority of that great court said : "It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it, in a manner too plain to be mistaken. "They had for more than a century before been regarded as beings of an inferior order; and alto- gether unfit to associate with the white race, either in social or political relations; 'and so far inferior, that they had no rights which the white man was bound to respect." Bred Scott v. Sanford, 60 U. S. 393 (L. Ed. 691- 701). This expression (in reality a dictum) evidently intended to fix, and being seized upon to establish, the want of legal status served as an awakening to the realization of a great fact, which a bare major- ity then decided to, and did, constitutionally change. It was, of course, the fact in the South as it bad been in Europe that so long as men could be bought to work, there were few economic reasons to favor them with compensatory laws. Likewise free labor could not well elevate itself while competing with actual slavery or its effects. In New England and the Eastern states, indeed in all of America outside of the slave belt, labor was in a state of slumbering indolence ready to awaken a commercial revolution, when the shackles of com- 18 peting sections should fade away. Until that time men hardly labored as a system of scientific special- ists in America although much of their arts and crafts are wonders of this age. Equality before the law had greatly impressed itself upon society in all its conditions. The old neighbor worked for him who proved to be more frugal, making complete articles of commerce, like shoes, or wagons, or fur- niture. Their families were friends; their children oftentimes intermarried ; the home of each was per- manent. Accidents to the workmen were infrequent, as there was little machinery and plenty of time. If an accident did occur it was an injury to the com- munity, in sympathy, at least, and the old neigh- bors shared the consequences of the resultant needs of the injured and his family — no such legislation was then necessary. Best Thought of Age Devoted to Government. In the epoch which followed the settlement of America and that which preceded and endured the Revolutionary war, patriotism, based upon the com- pact theory-^-equality before the law for freemen — was the guiding motive in forming our constitution, although many publicists now dispute that theory. The best thought of the best minds of this new and ambitious country was devoted to the essen- tial features of both private and public law, to create a model system upon the theory of a republic. 19 They studied all of the then recorded systems of government. They argued, analyzed, selected and systematized the best principles for their condi- tions. The great arguments of Webster and Wirt, and the almost superhuman decisions of Marshall, had greatly extended and blended the constitution to meet the several conditions as they had arisen. The spirit of enthusiasm from the building of that great work but partially subsided until the passage of the Oivil war — which confirmed the in- strument as a system of centralized power, and made a great constitutional epoch. Mr. Justice Miller and his associates construed the new constitutional provisions not only as to de-^ feat slavery, but also as extending the bill of rights for all. Great Minds Turn to Industries After Civil War. From the time the Civil war ended and the recon- struction was done, great minds in America turned their attention to previously neglected material nec- essities. There was a vast country, with great na- tural but undeveloped resources. Some of the great inventions, now such powerful means, were then wholly unknown, others, in their infancy. The commercial inventions have been almost with- out number. Machinery has become highly devel- oped and is yet increasing in amount and capacity. The laborer, who had been the old neighbor, mak- 20 ing his complete article, had to be replaced by a machine operated by a person perhaps with no more breadth of general vision but with a specialized knowledge of that article, who could make many pieces at a much smaller cost, which, when put with many more pieces, made, too, at a smaller cost, would make the whole article not only more quick- ly but much more cheaply. The Relations of Employer and Employe Change. And with this necessity the whole gave way to the piece (factory) system; the old neighbor to the spe- cialist. The specialist was frequently, indeed quite often, a foreigner; speaking a different tongue, lead- ing a different life, having different sympathies, and producing a different society. The owner could no longer hold the social inter- course with his men ; nor longer work beside them, but must turn his talents to financiering ; to finding the best and cheapest productions, to making the greatest and least expensive sales. To each departs ment he must delegate the duties to foreman ; and over them a vice principal; perhaps under both a sub-foreman known as a "strawboss"; thus remov- ing from his, and their, vision and sympathy, the friendship that had formerly bound the employer and employe together. Requisite capital to run the business, necessitat- ed, first, the partnership; after that, the combined wealth and organization of the legal corporate en- 21 tity. These, too, removed "the company" a step further from "the man." Following the substitution of the piece, for the whole, system of manufacture, came the substitu- tion of the whole, for the piece, system of men ; the union of the men for their convenience and protec- tion. This removed sympathy still another degree further. The deal was then one of good labor at cheap cost against cheap labor at good cost — cold blooded business on each side. We were busy in America getting the balance of trade. We were engaged in building up our cities, opening our new railroads (some very cheap and dangerous), slaughtering our forests, devouring our mines, and last but not least, increasing our de- mands proportionate to our earning capacities. The luxuries of yesterday are the necessities of today. Machinery has been rushed to its capacity; its op- erators to their endurance ; yet the demend has not been met. This rush has greatly enhanced the dan- gers of some employments. Employes Carry too much Bisk Now. In the manufacture of goods a percentage is ad- ded for labor; another for rent; another for inter- est; another for property insurance, and, in recent years, some additional to carry the risk of negli- gence of the employer. But the risk of pom and suffering, the risk of incapacity, the risk of family deprivation, the loss of the laborer's capital, in so far as traceable to the accidents, as distinguished 22 from the negligence of the employer, has been a risk which the laborer himself has borne. He has not been asked to assume the risk of fire insurance; but he has been asked to assume and has assumed the risk of personal injury where it has been caused simply by the nature of the industry without any one's fault or in connection with his own fault or that of a fellow servant. According to recent statistics, gathered by the State of Wis- consin and published by its Labor department, the . risk of the injury without fault has caused a ma- jority of accidents. The public demands, of course, have made those accidents necessary. It may be that they have been stimulated by the shrewd ad- vertising of the manufacturer ; but, such has been a part of our progress. There was a time when a man's family carried the risk of his death without property. To prevent that hardship, life insurance companies were con- trived to carry that part of the risk, for a consid- eration paid at previous intervals. The question whether it was gambling was litigated and settled in the negative. Such insurance is now considered greatly beneficial to society as the distribution and equalization of the loss burden. There was a time when every man of property car- ried his own risk of fire. His home burned, and his neighbor donated clothing, beds and eatables. Charity, not compensation, was his lot. To meet this, fire insurance companies were organized; and, like life insurance, bad to fight prejudice and laws. Indeed, there was a time when an insurance ageni 23 in the country fared little better than a "lightning- rod agent." The state stepped in; it regulated the business, both life and fire; it passed laws embrac- ing forms of policies, so that the insured could not be promised all in the body with "antidotes" in the fine print. Statistics could be obtained to fix the duration and hazards; consequently private enterprise could fix safe and satisfactory rates. But these are not the only places where the bur- den is equalized by insurance. In agricultural products, exchanges have grown up wherein traders' markets are established. The value of those markets rests largely on the funda- mental commercial necessities : that ready and com- plete information as to supply and demand is ob- tainable by traders and reflected in quotations of sale prices ; the traders assume the financial risk of controlling and distributing surplus to meet de- mand ; the producer not only gets much nearer the consumer's price when he does sell, but gets the benefit of the best judgment of the greatest special- ists as to the time to sell. The financial risk of the farmer has thus been greatly assumed and secured by the trader. The trader insures his risk by means of a system of hedging, counter-balancing the chanc- es in his purchases until he sells ; the miller likewise covers his risk. The states have greatly favored these institutions with legislation. They have made it possible for members to organize associations either as partnerships or as corporations in the na- ture of voluntary associations, which are permitted 24 to prescribe conditions of membership, and have given to their boards, rights of common law arbitra- tors which give speedy and satisfactory results greatly to the relief of the courts and public. This shortens delay and saves expense. Besides the member gets his case heard by experts in his line who think and judge as he would do if impartial. In the field of general industry and commerce some such principles are partially applied in com- mercial exchanges; but the parties either assume the risk of accidents, or upon failure to settled ap- ply to the old methods of litigation. There are systems of fraternal and other insur- ance which many can get if they are able to pay the cost; but no greater than are ours outside of labor for benefits other than their peculiar risks. The uncertainties, the expenses, incident thereto, the great delay, bad feelings and many other rea- sons, make this risk too uncertain and wasteful in cost, time, and feelings as applied to our present system. At the present time, then, the risk of industrial accidents, from the view of the laborer, is borne practically by him, except in so far as he shows they were due exclusively to a violation of the employe's legal duty. Yet the employer is heavily burdened. The laborer, a stranger, comes to his employment. The interests and obligations of master and slave do not even exist ; nor do those of the military sys- tem. He works; he is crippled, he leaves. The rela- tion is then ended — except for violation of duty or by grace of charity. It matters very little to his 25 family or those dependent upon him whether the loss of his arm or his leg or the family wages upon which they lived was occasioned by some slip of the foot negligently allowed to happen, or a slip of the foot unavoidably happening by reason of the negli- gence of the employer — the public calamity is the same; the injury is the same; the results are the same; the consequences, to their minds, are not dis- tinguishable, nor are they to ours. Present Systems a Temptation to Perjury. A man in the railway service, on a dark, snowy night, knows that there should be a light of a cer- tain color in a certain position, and that turned a different way it shows a different color and means a different thing; he approaches when the light means stop. Blinded by the snow he forgets to look. He goes to a lawyer and is advised that no fault of the master existed but his fault did exist — he can- not recover. After tossing back and forth upon his bed during the night, wondering what can become of himself and family, a neighbor suggests that probably he is mistaken as to the color of light that was on. He realizes that if tried his case will be judged by men sitting on light and comfortable seats, unappreciative of the difficulties under which he labored that night, and ruled by logic and law as distinguished from justice. The necessities tempt him to go to another law- yer, and, knowing the correct principle, state that he did look for the light; that the wrong light was 26 turned his way, and he approached and was injured through negligence of the company and no fault of his own. He recovers. To recover, the jury had to believe his falsehood as against a number of wit- nesses who told the truth. He has a friend injured under circumstances in fact such as he falsely tells the jury. The friend tells the truth; a witness against him lies; perhaps tempted to prevent a charge against himself of incompetence, possibly by reason of his customary actions — but lies — the jury believes the false witness, and the injured gets nothing. The rules of common law are so closely drawn that the ringing, or the failure to ring a bell; the pulling, or the failure to pull a whistle ; the swing- ing, or the failure to swing a lamp; may mean suc- cess or failure in such suits; its false telling may mean ease or poverty to the injured. The wrong ac- tion may have meant death to the passengers. It may win for the defense. Lawyers who take these cases on contingent basis are generally fair, but the temptation to advise as to these slight differences is very great to a poor lawyer with a percentage contract in a bad injury, easily made into a case of liability. We must not, however, say, or even intimate, that the mere trial of damage suits is, per se, objection- able; that all employers are heartless or all insur- ance agents rascals. It would be extremely unfor- tunate and unfair to so argue. The system has had its abuses, but railroads have had some watered stock ; bank officials have had some embezzlers, the 27 bar has had some thieves, and the church has har- bored some adulterers — men are human. We do not outlaw all railroads; condemn all bankers; dis- bar all lawyers, nor excommunicate all churchmen. We condemn but the evil® of the system. Many men of affairs do little work on this subject except in defense of capital, and easily reach the conclusion, based largely on interest or bias that its protection is more important; but when we face the question from the standpoint of just judgment rather than the attitude of advocates, things assume a different aspect. The Employe not Equal to the Employer in the Law. Under the law as it now stands in America, labor and capital are equal before the law in the consti- tutional sense but they are not equal in the law. Capital comes with the shrewdness of a well chosen advocate hired at the minimum of expense for his worth; the laborer comes with whom he can get at the maximum of expense. Ordinarily litigation is only an event in the life of the capitalist, often not requiring his personal attendance at court; but it is in most cases an epoch in the life of the la- borer and his family — they talk it; they live it; they dread its awful uncertainties — they suffer its great calamities. The lawyer who takes the part of the laborer in damage cases, often pays the whole expense, he earns or does not get his own fee, some support the laborer in the interim. In the aggregate the lawyer 28 must be paid. Returns being uncertain must be greater when they do come; but all these things the laborer must stand or be outlawed under our sys- tem, if his claim is disputed. The Employer has Difficulties. The temptations and uncertainties make it more difficult for the employer. Besides, the cost to the employer is entirely too great for the amount the injured receives. To keep from being mulcted by fraudulent cases, and from excessive damages in honest cases, the employer must maintain expen- sive and extended systems of defence or insurance. He bears such loss from negligent injuries and from fraudulent cases as he cannot settle or prevent by lawsuits or anticipated insurance. If he maintains insurance, many evils result therefrom. But this is not all; with the loss of the personal contact that formerly existed between him and the laborer, has gone the personal sympathy. The laborer joins his union and a strike for greater wages is made. Bad mutual feeling is created. The laborer is injured; the employer carries insurance; the insurance is based on legal liability. This defeats sympathy and the injured feels his treatment unjust. The uncertainties of the risk necessitate much litigation. Even though insured, the expense, and other burdens of defense make a great nuisance to the employer. The consumer does not yet under- stand that when buying a product he should pay for the risk of the man as well as the breakage of 29 the machinery. It has been the theory that recov- ery could only be had for fault of the employer and. he should pay for his own fault. At the same time the employer has been compelled to keep down the damages to compete "with others. Much could be said here, too, but the present system is admittedly inadequate for both sides. The Public Burdens. As an illustration of what our court records show in Minnesota, the writer turned to Vol. 104 Minne- sota Reports, which covers three months time, and found the following result : Total number of pages in whole opinions, 534. Number of pages consumed by personal injury opinions, 136 or 25 1-2%. Personal injury cases reported, 31. Appeals by defendant in those cases, 28. Reversals on same, 4. Appeals by plaintiff, 3. Reversals on same, 1. Total number of verdicts in 31 cases, 28 of which were affirmed, amounting to $144,926.50. Amount of those reversed, $6,600. Of the cases appealed, none of which were re- versed, seven aggregated in amount $111,000. The largest verdict reversed was for $4,000. Only three of the four cases reversed were cases in which the verdicts had been had. Twenty-one of the cases outside of the seven large verdicts produced approximately $7,000. 30 Of the large verdicts two were for $6,000 each; one for $7,000; one for $10,000; one for $18,000; one for $30,000; one for $35,000. The case wherein the $35,000 verdict was ob- tained was one where the injured died after the ver- dict had been procured ; and the court sustained the verdict, when, under the statute, it could only have sustained a verdict for $5,000 if he had died before the verdict was rendered. As it was, he got no ben- efit during life, but, by suffering until after the ver- dict was rendered, contributed an extra $30,000 to his relatives. Of the 31 cases tried, 5 were for injuries not re- ceived in the course of employment, 26 for injuries received in the course of employment. Taking out the seven large verdicts, the 16 that were obtained made but $27,000 — which, is not a large amount on an average. This makes the remarkable showing that, approx- imately 84% of these cases were for injury in the course of employment. Considering that this report covers but three months, and that perhaps in a majority of the cases where no verdict was obtained no appeal was taken, it would itself be evidence of the fact that a very large proportion of the cases tried were personal injury cases. We addressed communications to the Clerk of the District Court at Duluth and Minneapolis, as well as the Clerk of the Supreme Court of Minnesota. The Clerk at Duluth was the only one who gave a 31 definite answer. Three days' work of ones of bis best deputies produced tbe following result: Number of cases tried during year 369 Number of them personal injury cases 79 Cost of running the court : Jurors' fees $18,206.82 Sheriff's salaries 3,087.00 Clerk's salaries 3,480.00 Judges' salaries 17,100.00 Printing calendars 424.50 Total 142,298.32 This, it will be seen, makes approximately 21 per cent of the cases in number. The clerk adds in his report: "Of course, you understand that there were prob- ably as many more personal injury cases dismissed or settled, that never came to trial." This probably is a fair observation. It might be added that, in our larger cities at least, cases of this nature averaged much longer than the ordinary jury trials. In our district court in Minneapolis, it costs the state to try one of these cases about as follows : Salary of Judge per annum $5,700, esti- mating he is engaged in Court 200 days per year, about :••••$ 28.00 Stenographer, basis 200 days 9.00 Clerk, same estimate 6.00 Sheriff 6.00 12 jurors 24.00 6 extra jurors for selection 12.00 32 Sheriff's fees for serving 18 men once in 12 days 3.00 about $3.00 per day. Bailiff 3.50 1-6 of sheriff's expenses 10.00 1101.50 This does not include the cost and care of build- ing, etc., etc. It is safe, however, to estimate that each day of jury trial in these cases costs in our courts from $100 to $125 and that from one-quarter to one-half of six courts are taken up during the whole year in Hennepin County. There is no doubt but that a very large number of cases of a personal injury nature are settled before suit is even brought and many others after the court has provided for or entered upon the trial. And if a system could be evolved which would prevent the public expense incident to the trials that are had, it would save a great deal in that direction alone. Then there are the burdens on society, incapable of estimation. Compensation in the Modem Foreign Countries. Bulletin No. 74, issued in January, 1908, by the U. S. Department of Commerce and Labor, covers a splendid brief statement of the foreign laws on the question. Page 121 comments as follows : "By the term 'workmen's compensation laws' are meant enactments which embody the principle that the workman is entitled to compensation for injur- 33 ies received in the course of his employment. Such laws have been enacted in twenty-two foreign states. "Usually the injuries must cause disablement for a specified number of days or weeks before compen- sation becomes due. The employer may usually be relieved from the payment of compensation if he can prove that the injury was caused intentionally or by wilful misconduct or in some countries by the gross negligence of the injured person or during the per- formance of an illegal act. "The industries usually covered 'by the acts are manufacturing, mining and quarrying, transporta- tion, building and engineering work, and other em- ployments involving more or less hazard. In Bel- gium, France, and Great Britain the laws apply to practically all employments. In Austria, Belgium, Denmark, Finland, Germany, Italy, Luxemburg, Netherlands, Norway, Russia, Spain, and Sweden only workmen engaged in actual manual work, and in some cases those exposed to the same risks, such as overseers and technical experts, come within the operations of the law. On the other hand, in France, Great Britain, the British colonies, and Hungary the laws apply to salaried employees and workmen equally. Overseers and technical experts earning more than a prescribed amount are excluded in Bel- gium, Denmark, Germany, Great Britain, Italy, Luxemburg and Russia. Employees of the state, provincial and local administrations usually come within the provisions of the acts. "The entire burden rests upon the employer in all but four countries, Austria, Germany, Hungary, 34 and Luxemburg, where the employees bear part of the expense. The laws in every case fix the com- pensation to be paid. Except in Sweden the com- pensation is based upon the wages of the injured person. It consists of medical and surgical treat- ment and periodical allowances for temporary dis- ability, and annual pensions or lump-sum payments for permanent disability or death." In the report put out by the Secretary of Com- merce and Labor, in December, 1908, in speaking of this question it is said : "In striking contrast with conditions in the Unit- ed States is the position of the foreign workman who is injured by accident in the course of his em- ployment. Practically every foreign country of any importance industrially has by legislation recog- nized the principle that the workman is entitled to compensation for injuries from accidents received in the course of his employment. "The entire burden rests upon the employer in all but four of the countries — Austria, Germany, Hungary and Luxemburg — where the employes al- so bear a part of the expense. The laws in every case fix the compensation to be paid. In all the countries but Sweden the compensation is based up- on the wages of the injured person. It consists of medical and surgical treatment and of periodical allowances for temporary disability, and annual pensions or lump-sum payments for permanent dis- ability or death. "In most countries employers may contract with state or private insurance institutions for the trans- 35 fer of the burden of payment of compensation. In a number of countries such transfer is obligatory. Provision is usually made for the protection of the beneficiaries in case of insolvency of employers. "The acts of nearly all of the countries are framed with the view of obviating the necessity for insti- tuting legal proceedings. The laws are so specific with regard to the compensation allowed and the regulations for its payment that agreements are usually amicably made between the employers and the victims of the accidents." The article proceeds to say that procedure is pro- vided for cases where agreement cannot be had, that the best practice in other countries fixes a defi- nite compensation for death or injury, usually based upon the earning capacity, which enables the em- ployer to calculate with some degree of certainty the additional item necessary to be included in the cost of production ; that this becomes as capable of calculation as does fire insurance; that various plans of industrial insurance are in operation in other countries, from which a system can probably be worked out; but suggests that it will be time enough to talk laws when we place the liability up- on the industry itself. That report suggests that the government law which went into force August 1, 1908, with respect to accidents to the Panama em- ployes should be so amended as to transfer its ad- ministration from the Secretary of Commerce and Labor to the Isthmian Oanal Commission. 36 Cham,ge of Common Law in United States. Substantially all of the states, as well as the Fed- eral Government have made attempts to amend the common law by changing some of the more objec- tionable elements in the more hazardous employ- ments. Various laws affecting railways and other car- riers of persons exercising special privileges based upon governmental functions, have been enacted af- fecting such matters as the fellow-servant doctrine, safety appliances, comparative negligence, etc.; other laws have been enacted imposing duties in the nature of police regulations such as making it the duty to fence elevator shafts, cover dangerous machinery, limiting the ages for child labor, the hours of labor for men in hazardous occupations, the hours of labor for women, requiring inspection of mines and machinery, etc., etc. But until very recently no serious attempt has been made in this country to change the theory of workers' compensa- tion by changing the basis of recovery. Repealing the Common Law. There is no constitutional objection to repealing or modifying the common law, at least if a reason- able remedy is left as will be shown by the follow- ing cases : In Smith v. Alabama, 124 U. S. 465 (L. Ed. 508), the court said: 37 "There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be pro- vided by its own statutes. Wheaton v. Peters, S'i U. S. 8 Pet, 591 (L, Ed. 1055)." In Martin v. Pitttsburg, etc. Co., 203 U. S. 284, L. Ed. 184, the court had under consideration a stat- ute of Pennsylvania limiting the right of certain persons to recover damages from railroads so that passengers would be limited to the rights of ser- vants. It was claimed that this law was invalid, but the court said : "The assertion of the Federal right is disposed of when we determine the question of power." And: "If it be conceded, as contended, that the plain- tiff in error could have recovered but for the statute it does not follow that the legislature of Pennsyl- vania in preventing a recovery took away a vested right nor a right of property. As the accident from which the cause of action is asserted to have arisen occurred long after the passage of the statute, it is difficult to grasp the contention that the statue de- prives the plaintiff in error of the rights just stated. Such a contention in reason must rest upon the proposition that the state of Pennsylvania was without power to legislate on the subject — a propo- sition which we have adversely disposed of." 38 Rule in Admiralty. In the case of Steamer Max Morris v. Curry, 137 U. S., page 1 (L. Ed. 586), the Supreme Court held that: "A longshoreman employed to load coal on board a steamship, and injured while so employed, by his falling from the steamer's bridge to her deck partly through his own negligence and partly through the negligence of the steamer's officers, is entitled, in a suit in admiralty against the vessel for damages for such injuries to a decree for divided damages." The libellant who in plain language is the plain- tiff, charged that he fell from the bridge to the deck of a boat through the negligence of those in charge in removing a ladder and failing to guard the hole left thereby; that he was injured by the fall without negligence of his own. He claimed $3,000 damages. The answer alleged negligence on the part of the libellant and an absence of negligence on the part of the defendant. The District Court entered a decree in favor of the libellant for damages of $150, and $32.33 as one- half of the libellant's costs, less $47.06 as one-half of the claimant's costs, making the total award to the libellant $135.27. The District Judge charged to the libellant's own fault all his pain and suffering and all mere consequental damages, and charged the vessel with his wages at $2 per day, for 75 working days, mak- ing $150. 39 An appeal was taken to the Circuit Court and an opinion rendered therein hut no decree. The case came up again before two of the judges and they certified the question to the Supreme Court. The court proceeds to say that it had long admin- istered the English law of dividing the damages in admiralty cases, citing a number of cases where it had so done. It pointed out the distinction of rules to the effect that in the common law court the de- fendant must pay all the charges or none while in the admiralty court the law would allow the divis- ion if both were at fault. After references the court said : "They show an amelioration of the common law rule, and an extension of the admiralty rule in a di- rection which we think is manifestly just and prop- er. Contributory negligence, in a case like the pres- ent, should not wholly bar recovery. There would have been no injury to the libellant but for the fault of the vessel ; and while, on the one hand, the Court ought not to give him full compensation for his in- jury, where he himself was partly in fault, it ought not, on the other hand to be restrained from saying that the fact of his negligence should not deprive him of all recovery of damages." If the English Court in the Priestly case had con- sidered the "consequences" to servants as well as masters, this would probably have been the rule throughout the common law system today. When President Taft was sitting as a Circuit Judge, 1897, in the Court of Appeals, with Mr. Jus- tice Harlan and Circuit Judge Lurton, the case of 40 Pierce v. Van Dusen, 78 Federal Reporter, 693, was before the court. The opinion was written by 'Cir- cuit Justice Harlan, and is very able, referring at length to the authorities of the United States Su- preme Court and others, at page 700 the opinion "Undoubtedly the whole subject of the liability of interstate railroad companies for the negligence of those in their service may be covered by national legislation enacted by congress under it® power to regulate commerce among the states. But, as con- gress has not dealt with that subject, it was com- petent for Ohio to declare that an employe of any railroad corporation doing business here, including those engaged in commerce among the states, shall be deemed in respect to his acts within this state, the superior not the fellow servant, of other em- ployes placed under his control." See opinion of Judge Taft in Warramore v. Cleveland, etc. By. Co., 96 Fed. 298. On June 11th, 1906, Congress passed an act in- tended to regulate interstate carriers in favor of employer's liability, etc. The Supreme Court declared that act unconsti- tutional upon the theory that it covered intrastate as well as interstate business. The act established comparative negligence and prohibited contractual benefits except pro rata. The opinion is recorded in Howard v. Illinois C. R. Co., 207 U. S, 463 (L. Ed. 297). That opinion was by Mr. Justice White and with him Mr. Justice Day concurred. Mr. Justice Peck- 41 am concurred in a short memorandum but he and the Chief Justice and Mr. Justice Brewer were not prepared to agree with all that the opinion said upon the power of Congress to legislate upon the subject of the relations between master and ser- vant. Mr. Justice Moody dissented in a very long and able opinion. Mr. Justice Harlan and Mr. Justice MeKenna agreed in a short dissenting opinion and Mr. Justice Holmes dissented in still another short opinion; but from these various opinions it would appear to be the rule, very clearly decided by the majority at least, if not by all of the justices, al- though it may be doubtful whether three of the Jus- tices agree thereto, that Congress has power to leg- islate on the subject of master and servant with re- spect to matters covering interstate commerce. In the course of his dissenting opinion Mr. Jus- tice Moody reviews opinions bearing upon different phases of this question. In the case of Snead v. Central Georgia By. Go., 151 Fed. 608, District Judge Spear had delivered a very elaborate opinion in which he sustained the Act of June 11, 1906. His comments upon the na- ture of this legislation at page 619 are well worthy of reproduction here : "Nor is the enactment of such measures as that under consideration a novel or unusual power on the part of government. Our own state, it seems, was the pioneer in a measure of partial relief from that strict rule which was first enunciated in Eng- land in 1837, which forbade the recovery by the em- 42 ploye for injuries inflicted by the negligence of a fellow servant. The Georgia law upon this subject was enacted in 1856 so far as it related to railroads. In 1862 Iowa abolished the fellow servant bar as to trainmen and in 1874 Kansas did the same thing. In 1885 the state of Alabama adopted similar legis- lation, and in 1893 Arkansas qualified the doctrine as to railroad employment. Minnesota followed in 1887. Florida, Ohio, Mississippi and Texas have modified the doctrine for the benefit of employes. North Carolina, North Dakota, Massachusetts, Wis- consin and Minnesota denied its applicability to the operation of railroad trains, and in 1901 Colo- rado abolished the doctrine in toto. Nor have for- eign governments been inattentive to this great and unreasonable injustice to that splendid body of citi- zenship upon whom so much of the prosperity of the nation must depend. In 1888 England denied its application to those engaged in the operation of railroad trains, and in 1897 made it also inapplica- ble to many other hazardous employments. In Ger- many it does not apply to any of the hazardous oc- cupations. In 1869 Austria passed a law making railroad companies liable for all injuries to their employes save where the injury was due to the vic- tim's own negligence. The Code Napoleon made the employer answerable for all injuries received by his workmen, and this is still of force in Prance, in Belgium and in Holland. Other European coun- tries have from time to time fixed the liability of the master to his servant for damages caused by the negligent act of a fellow servant. It is, however, 43 unhappily true that many states of the Union, not- withstanding the anarchronism of the rule, have maintained and still enforce it. But Congress has at length determined that there shall be an uniform law for the protection of that army of more than a million men engaged in interstate traffic — an army whose courage, decision, patriotism, and intelli- gence may not be surpassed. "The rule which this legislation abrogates was based upon the contention that the servant con- tracts for a wage sufficient to protect him against risks incident to the service that he is in a better position to observe and protect himself against the negligence of his fellow servant than his employer, and that it will insure better service and less in- jury if the master be not responsible. The briefest consideration will show how archaic is this reason- ing when applied to modern conditions. Take the engineer on the locomotive which drives the light- ning express. The complexity of his mighty ma- chinery requires his constant and careful attention. Possibly in the darkness of night, 50 or 60 miles an hour his train thunders along the gleaming rails. His is blind obedience to his orders. Through the mistake or negligence of a fellow servant, over whose action he has no control, of whose mistake or misconduct he has no knowledge, in an instant he may be hurled to death or to mutilation inde- scribable. While this is true, under the law which the act of Congress repeals, it has been held that the relation of fellow servant existed between an engi- neer acting as conductor and his fireman, between 44 a common day laborer, building a culvert and the engineer and conductor running a train, between an engineer operating one train and the conductor on another train on the same road, between conductor and brakeman on the same train, between the local telegraph operator and fireman upon the train, and in view of these relations, shadowy and intangible as they are, yet justified by the law as it existed, it has been held that the employer was not liable for the death and suffering which resulted. The law is a progressive science. The rule has long been deem- ed most unjustifiable. In Labatt on Master and Servant, Vol. 2, Sec. 754, it is declared : " 'It does not rest upon any satisfactory basis, logical, social, or economic, and by relegating the injured person to his action against a co-employe, who is, as a general rule, financially irresponsible, leaves him in the great majority of instances, with- out any prospect whatever of obtaining the ade- quate indemnity.' "Such conditions will no longer exist. Said the house committee in its report on this measure: " 'Now where the doctrine of fellow servant is in force no one is responsible for the injury or death of the fellow servant. The co-servant who is guilty of negligence resulting in the injury may be liable, but as a rule, he is not responsible. Employes are never held to such strict rules for the safety of his co-employes, because the employer is not bound to pay damages in case of injury. If he were held lia- ble for damages for every injury occasioned by the negligence of his servants, he would enforce the 45 same strict rules for the safety of his employes as he does for the safety of passengers and strangers, he will make the employment of his servant and his retention in the service dependent upon the exercise of higher care, and this will be a strong inducement to the employe to act with higher regard for the safety of his fellow workmen.' " Snead v. Central of Georgia By. Co., 151 Fed. 608-619. Presidents Urge Change. As early as the first message of Benjamin Harri- son, sent to Congress in 1889, we find the following expression : Page 51, Vol. 9, "Messages and Papers of the Presidents" : "The attention of the Interstate Commerce Com- mission has been called to the urgent need of con- gressional legislation for the better protection of the lives and limbs of those engaged in operating the great interstate freight lines of the country and especially of the yardmen and brakemen. A peti- tion signed by nearly 10,000 railway brakemen was presented to the Commission asking that steps be taken to bring about the use of automatic breaks and couplers on freight cars. "At a meeting of the State railroad commission- ers and their accredited representatives held at Washington in March last upon the invitation of the Interstate Commerce Commission a resolution was unanimously adopted urging the Commission to consider what can be done to prevent the loss of 46 life and limb in coupling and uncoupling freight ears and in handling the breaks of such cars.' Dur- ing the year ending June 30, 1888, over 2,000 rail- road employes were killed in service and more than $20,000 injuries. It is competent, I think, for Con- gress to require uniformity in the construction of cars used in interstate commerce and the use of im- proved safety appliances upon such trains. Time will be necessary to make the needed changes, but an earnest and intelligent beginning should be made at once. It is a reproach to our civilization that any class of American workmen should in the pursuit of a necessary and useful vocation be sub- jected to a peril of life and limb as great as that of a soldier in time of war." In February, 1903, he sent to Congress the spe- cial report of the Commission of Labor relating to injuries of workmen in Germany and other coun- tries. We need hardly suggest the fact that President Harrison was an able lawyer as well as a great statesman and probably knew at the time he wrote that the exact status of this matter in Europe. The Safety Appliance Act passed Congress as a result of this and other recommendations and a por- tion of the above quotation from President Harri- son is found in the opinion of the Supreme Court in maintaining the act. Johnson v. Southern Pac. Co., 196 U. S. 1. In his message to congress, in 1908, President Roosevelt said : 47 "If a man is injured or killed in any line of work, it was hazardous in his case; whether one per cent of those following the given occupation actually suffer injury or death ought not to have any bearing on the question of his receiving compensation." Later on in his message he says: "Probably in no other respect is our legislation, both state and national, so far behind practically the entire civilized world as in the matter of lia- bility compensation in accident or injury." To meet the decision of the majority in the How- ard case the act of 1906 was slightly modified and repassed as of April 22, 1908. It seems to be a fixed rule of the government that it may require employes of railroad companies, engaged in in- terstate commerce, to be protected by safety appli- ances or otherwise and there is no other solid rea- son why this should not be greatly extended if the governmental necessities demanded it. There is also an act giving government employes injured in hazardous employments so as to unfit them for la- bor for fifteen days their wages during disability not exceeding one year and for both the same amount to the widow et al. ; but no payment is made if the employee is at fault. Act May 30, 1908. There is no longer any question but that the gov- ernment is able to provide regulations for its own employes. Aitkin v. State of Kan., 191 U. S. 205. The congressional record of May 30, 1908, con- tains a very able argument giving a synopsis of English law as a part of an article contained in a speech printed from Hon. Geo. A. Bartlett of Ne- 48 vada as an argument in favor of Mr. Bartlett's pro- posed bill. A very interesting and ably prepared argument is also printed by Congressman Sabbath at the same session in favor of his proposed meas- ure. Progress in the States. In 1905 the legislature of the state of Ilinois pass- ed a joint resolution reciting, in effect, that owing to the limited time at its disposal and the impor- tance of the question, a commission should be ap- pointed to investigate the subject of a proper law for industrial insurance, etc. In that resolution it was recited, among other things, as a commentary upon the sad conditions existing : "This melancholy fact, of which all are conscious, poisons the present and fills the future with fears." The report of that commission published much valuable information in connection with the report. It drafted two bills, one making it lawful for em- ployer and employe to enter into a contract to in- sure the employe against accidents occurring in the course of employment, and that in consideration of such insurance the employer should be relieved of the consequences of injuries, under other provisions of the law. The report covered not only that bill but a form of contract and bond which the parties might execute. The committee also reported a sec- ond bill somewhat along the lines of the German bill, which their counsel advised was unconstitu- tional; but they reported it upon the theory that it would be valuable as an educational measure, and 49 that somewhere, sometime, some legal talent would rise up that would be able to enact a law that would conform to our constitutions. The bills which that commission recommended were not adopted, and it was thereafter, as we un- derstand, from one of its members, not very active as a commission, although Prof. Henderson, one of its members, has been quite active in the study of the question, even translating and rewriting an able book on the subject. Massachusetts had a joint special committee, con- sisting of three members of the senate and eight members of the house of representatives. That committee had submitted to it various bills. It held a great many public sessions, and finally a ma- jority made a report to the effect that absolute lia- bility should not be imposed upon the employer, if it could be constitutionally done, but recommend- ed a law permitting the employer to submit to the state board of arbitration and concilation a plan based upon percentage of earning capacity, under the common law or liabilities act, by which he might settle in case of accident. Of course the minority disagreed. Connecticut had a commission appointed in 1907, that commission reported, among other things: "The committee unanimously agree that very probably the future relations of employer and em- ploye will be settled by legislation along this line. "The committee have not been able to agree in the matter of recommending such an act at this 'time. The representatives of the employer and la- 50 bor classes would have been willing to recommend a bill which should provide, first for definite and lim- ited compensation to employes in certain lines of industry for all injuries incurred in the course of their employment resulting in death or permanent disability; and second, the opportunity to insure against injuries and sickness. The compensation in the first case to be borne exclusively by the em- ployer and in the second case the cost of insurance to be borne by employer and employe. The com- mittee, as a whole, however, did not believe the peo- ple of this state were ready to take a step so radical- ly different from the present practice. It was also very questionable with the committee whether so small a section of our country should take such a step alone and so possibly place the producers of this state at a disadvantage with those of other states. "The lawyer on the committee thought there were possible constitutional objections to an act of this nature and questioned seriously its adaptability to present conditions; and further thought it would be unwise for the state of Connecticut to undertake legislation of this character until the public gener- ally had given the matter more consideration than up to the present time it has received. "After a serious consideration of the advantages claimed for a Compensation Act and also a consid- eration of the objections raised to the proposal of such an act at this time, the committee decided that it was not wise to recommend a bill of this nature to this General Assembly." 51 'New York. A bill introduced in New York, known as No. 254, in the senate, dated January 30, 1908, which we understand did not pass, provided : "It shall be lawful for any employer to make a contract in writing with any employe whereby the parties may agree that the employe shall be insured against accident occurring in the course of employ- ment, which results in personal injury or death in accordance with the provisions of this act, and that in consideration of such insurance the employer shall be relieved from the consequences of acts or omissions by reason of which he would, without such contract, become liable toward such employe or toward the legal representative," etc. This seems to be quite similar to the Illinois Bill which did not pass. Their labor department had been actively working on this question for about ten years. One of the best articles on certain fea- tures of the constitutionality of such laws was writ- ten by Mr. Sherman, a former labor commissioner of that state. The Bureau of Labor Statistics in New York, in its 17th annual report, 1899, Contained an extend- ed article on the compensation of accidental injur- ies to working people. Their bulletin No. 34 issued in September, 1907, refers to and quotes from, that report at length, because of the insufficient remaining numbers of the former report. 52 In referring to the 1899 report, the 1907 report "There were still six European countries that treated the problem simply as one of negligence law, as is still done in the United State*. Since that time, however, Belgium, Holland, Sweden and Rus- sia have enacted workmen's compensation or acci- dent insurance laws, leaving only Switzerland and Hungary in the same class with the United States. Outside of Europe, four British Colonies, including three in Australia and one in Canada, have enacted workmen's compensation laws, modeled on the Eng- lish Act of 1897, which was itself recast and vastly extended last December, as described in the Bullet- in for March of the present year." In the re-quotation from the report of 1899, much valuable information is given. The report reviews at length the compulsory sys- tems and other systems in the foreign countries. The report of 1907 then continues to point out: 1st. That the 'Massachusetts Bureau Statistics of Labor for 1900, published a special report. 2nd. That the Wisconsin Bureau of Labor had devoted a portion of its biennial report to a presen- tation of the question. 3rd. That the governor of Minnesota in his 1905 message, approved the doctrine already acccepted abroad, that "The industry should bear the risk and not the unfortunate workmen who were now daily deprived of the means of providing a livelihood." 4th. That in 1906, the president in his message to congress advocated a law applying to interstate 53 carriers, and in his address at the Jamestown Ex- position on June 10th, said: Legislation should be had alike from the nation and from the states, not only to guard against the needless multiplication of these accidents, but to re- lieve the financial suffering due to them." 5th. The New York Bulletin also continues: "The participation of the legislation in the move- ment has thus far been limited to investigation, if exception be made to the co-operating insurance law enacted in Maryland in 1902, which provided for ad- ditional insurance in certain industries to secure release from additional liability imposed by the act upon employers, but was soon held unconstitution- al by the courts." Wisconsin. The labor report issued in the state of Wisconsin, 1907-1908, part 1, which covers "Industrial Acci- dents and Employers' Liability in Wisconsin" con- tains one of the most interesting and instructive bits of information that we have found in the whole field. The conditions there are so similar to our own that the information with respect to accidents is extremely valuable in a discussion in Minnesota. 54 From page 4 of that report we quote as follows : "Responsibility in 238 cases investigated by Wis- consin FACTORY INSPECTORS. When the standard is "ordinary" care. Responsibility. Number. Per cent. Fault of employer 27 11.35 Fault of workman 56 23.53 Fault of both 17 7.14 Fault of fellow servants 14 5.88 Hazard of the industry 124 52.10 All ascertained 238 100.00 Not ascertained 26 Not at work for employer 54 investigated 318" This gives us quite definite information to show that more than half of the accidents were occa- sioned by the hazards of the industry. That only about 1-9 were occasioned by the fault of the em- ployer, and nearly 1-4 by the fault of the workman himself, and about 1-14 by their joint fault, and 1-17 by the fault of fellow servants. The faults of the existing systems are given on page 5 of that report, as follows : 1. The attempt to locate negligence so that it will hold in a court of law is expensive and creates hostility between workmen and employers. 2. The law of negligence means liability insur- ance for the employer, and a large part of the mon- ey paid to liability insurance companies is wasted. 55 3. The concealment of facts regarding accidents hinders the important work of preventing accidents. 4. The existing laws do little to encourage work- men and employers to enter into mutual insurance schemes, nor do they encourage the workmen to in- sure themselves. Workmen do not have adequate protection." Maryland. By Chapter 139, Maryland Acts of Assembly, 1902, employers operating certain designated em- ployments were made liable for the death of their employees through negligence Of the employer or any fellow-servant, but there was a provision that the employer might escape the liability by payments to the State Insurance Commissioner of a certain sum per employee, keeping one-half of the cost from the wages of the employee. In case of death $1,000 was to be payable to the dependents by the In- surance Commissioner who was given extensive powers. The act went into effect July 1st, 1902, and on the 28th of April, 1904, in the case of Frank- lin v. United Railways and Electric Company, of Baltimore, the Court of Common Pleas of that city, in an opinion not in the official reports, held that the act attempted to invest judicial powers in the Insurance Commissioner and was unconstitutional. No appeal was taken (See Quarterly Journal of Economics, August, 1902, p. 591, and Feb., 1905, p. 320, Articles by George E. Barnett) . 56 Pennsylvania. By Chapter 176 of the public laws of Pennsyl- vania of 1891, liability was imposed upon mine owners to employ licensed inspectors who should examine the working places in the mines and pa-e- vent any one from working in the unsafe places ex- cept to make them secure; the mine owners were made responsible for the acts of those inspectors and the rule of liability for the fellow-servant was extended. In Durkin v. Kingston Goal Co., 171 Pa St. 193, 33 Atl. Reporter, 237, that act was held unconstitu- tional, principally upon the theory that it was in- creasing the liabilities at common law and making the owners responsible for negligence of those state inspectors whom the law required to be employed. It is interesting to note this case beside that of Martin v. Pittsburg, etc. Co., 203 U. S. 284. Nebraska. By Chapter 72, Art. 1, Sec. 3, of the Com- piled Laws of Nebraska, railroad companies were made liable for damages inflicted upon the per- sons of passengers while being transported over their road, except where the injuries arose by the criminal negligence of the injured, or from viola- tion of some express rule brought to the passenger's notice. This law was attacked upon the grounds that it deprived the railway company of due pro- cess of law and that fault was necessarily a basis of 57 liability in negligence law. The Court overruled both of these contentions in the case of Chicago, Rock Island, etc., By. Co. v. Zernecke, 183 U. S. 582. This is not exactly in point on the ground, of employees, but it does involve the principle that fault is not necessarily the basis of legal liability if the legislature chooses to make it otherwise. That opinion was based partially upon the fact that the railway company had adopted the laws of Nebraska, also, but seems to have been principally on the oth- er grounds. The Outlook Discouraging in 1908. Summarizing, the history of this subject in the United States until 1908 was most discouraging. Twenty-two or twenty-three of the more import- ant foreign countries had either abandoned the theory of negligence for compensation or had added compensation to the old theory in some substantial if not revolutionary form. England was one of the notable examples of the latter class. The his- tory of this subject, however, in this country until that time had been a history of defeats. Maryland had passed a sort of compensation law in 1902, which an inferior court had declared unconstitu- tional, and no appeal was taken. New York's labor department had advocated this theory of compen- sation for about ten years in able articles in its bulletins, but had presented a bill to the legislature permitting employer and employee to contract for compensation and that bill had failed of passage. 58 Massachusetts had delegated the matter to a com- mittee from the House and Senate, which had held extensive hearings and a majority had been afraid of the constitutional question as well as unwilling to recommend the theory as an equitable one. Connecticut had a commission working on the question which later filed a report doubting both the advisability and the constitutionality. Illinois had had a commission elaborately study the question and had been advised that a compul- sory law could not be passed. It had reported a bill similar to that defeated in New York. We un- derstand that this was defeated largely by laborers, and the commission had practically abandoned its work. Congress had passed a law on June 11th, 1906, in- tended to change the old liabilities by establishing a theory of comparative negligence and other bene- fits for the laborer, but on January 6th, 1908, the Supreme Court of the United States had declared that unconstitutional as covering intrastate com- merce as well as interstate commerce. Mr. Bartlett and Mr. Sabbath had each presented bills as con- gressmen for passage by the United States, but the discussion upon them to that time seems to have been principally limited to the right to print. The Governor of Minnesota had mentioned the matter in his message of 1905, but nothing of im- portance had been done upon it in this state. It seemed to be the general opinion of lawyers that such legislation if passed in this country, would not be constitutional. The experience in Maryland, 59 together with that of the advice to the other com- missions above mentioned, and the general consti- tutional prejudices of lawyers and courts through- out the Union left the matter without encourage- ment. Some bodies, like Associated Charities, had advocated the scheme, a few economists had discuss- ed it, and a limited number of corporations had schemes of their own, but there was no organized effort seeking uniformity. An article by P. Tecumseh Sherman of New York and a paragraph by Prof. Freund was the sub- stance of the encouragement under the Constitu- tion. Minnesota State Bar Association Enters the Move- ment. It so happened that in a small meeting held by the executive committee of the Minnesota State Bar Association, in St. Paul, in June, 1908, it was brought to the attention of our Board of Governors, of which the writer was one, that Mr. Pierce But- ler, the vice-president of the Association, had been studying this question somewhat and might be in- duced to deliver a paper at the annual meeting in Duluth on the necessities for such legislation. Our request was granted; he delivered that paper at the meeting in the city of Duluth in July, 1908. The Association devoted the principal morning session of the second day to a discussion of "Em- ployes' Compensation for Injuries/' it proved to be interesting. The discussion was led by Mr. Butler's 60 paper, with a very clear argument favoring an ex- tension of the present laws and closing as follows : "As I now feel, I am strongly inclined to favor the application of the rule so generally recognized in other countries, and by the Congress of the Unit- ed States as applied to certain government em- ployees hereinbefore referred to, and as found in the bill proposed for enactment in Massachusetts, to- wit: that in certain occupations attended by grave and peculiar risks of injury to employees there should be compensation for injuries, irre- spective of the negligence of the master, unless such injury was the result of wrongful conduct on the part of the injured person or occurred by reason of irresistible force or an act of Povidence; in oth- er words, that in such cases, the industries — or the public — should bear the loss resulting from such hazards and risks. Minn. State Bar. Assn. Proceedings, 1908, pp. 44-5. The discussion was continued with many prac- tical suggestions by various members, the most of us knowing very little about the question, having simply read something of the foreign progress and knowing something of the failures of our own sys- tem. At the close of the discussion a motion was made by Mr. Hall, which, when amended and substituted, grew into a motion to refer to the Committee on Jurisprudence and Law Reform: "The very able address of Mr. Butler, who shall consider the matter, and if in their judgment 61 deemed advisable, formulate a bill (p. 64), and pre- sent the same to a meeting of this association to be beld at a later date * * * in or about tbe montb of December, to be called by the president of the Association." A motion was then carried (p. 70) to print the report of this committee and send it to each member two weeks before the meeting, fixed as December first. See Report of Proceedings, 1908, pp. 31-70. The Committee on Jurisprudence and Law Re- form, as first composed for this year, was : Mr. Stiles W. Burr, chairman, St. Paul. (Resigned, H. V. Mercer appointed). Mr. W. S. Pattee, Minneapolis. Mr. Howard T. Abbott, Duluth. Mr. S. D. Oatherwood, Austin. Mr. Julius Coller, Shakopee. Mr. Pierce Butler, (ex officio). October 20th, 1908, Mr. Burr resigned the chair- manship of this committee and the writer was ap- pointed to fill the vacancy. The chairman was un- able to get any of the members except Dean Patte to any meetings. Minnesota Had no Proper Data. Correspondence with various public officers and philanthropic institutions in Minnesota soon satis- fied us that the question was practically new to them and also to the then State Labor Department. It was immediately apparent that means of obtain- ing information was indispensable to act intelli- 62 gently. This, of course, could only be fairly done by going to the most advanced sources. The writer naturally supposed that the Ameri- can Federation of Labor was best informed on the question, but evidently, it had not yet awakened to the situation or thought it hopeless as the follow- ing correspondence — quoted for accuracy — will demonstrate. We wrote Mr. John Mitchell, the second vice-president: November 10, 1908. Dear 'Sir: At the last meeting of the Minnesota State Bar Association, a resolution was passed requiring the Committee on Jurisprudence and Law Reform to draft a bill for this state looking toward the com- pensation of laborers and dependents upon them, for injuries received by the laborers in the course of their employment. As chairman of that Committee, I write to ascer- tain whether or not you have any data collected in brief form, and if not, whether you have any ref- erences at your command that would aid us in as- certaining any information that will lead to the drafting of a measure which seems fair from a pub- lic standpoint and which can be justly enforced as between the employer and the employee. Any information in the way of pamphlets or any suggestions that you may have with respect to the matter, if you have had occasion to study it, will be appreciated, if you will be so kind as to furnish them to us. Very truly yours, H. V. Mercer. 63 John Mitchell, Esq., c/o American Federation of Labor Convention, Denver, Colo. And he answered : Denver, Colo., Nov. 14, 1908. Mr. H. V. Mercer, Atty. at Law, Security Bank Building Minneapolis, Minn. Dear Sir: Your favor dated Nov. 10th is received. I regret to say that I do not have any literature bearing up- on the subject to which your letter refers. I sug- gest that you correspond with Mr. Samuel Gom- pers, President of the American Federation of La- bor, who may be able to send you the information you desire. I am, Yours truly, John Mitchell. We had previously written the same request to Mr. Gompers. We first received a letter from his secretary to the effect that Mr. Gompers was then engaged in the immediate work of the convention of the Federation which, as we understand, was held at Denver. Later, and on Dec. 2nd, 1908, we re- ceived from Mr. Gompers a letter reading as fol- lows: Washington, D. €., Dec. 2, 1908. Hon. H. V. Mercer, c/o Wilson & Mercer, Security Bank Bldg., Minneapolis, Minn. Dear Sir: Your favor of the 10th inst. reached me at Den- ver during the Convention of the American Federa- 64 tion of Labor, and I was therefore unable to give the matter attention until my return to headquar- ters. It is impossible for me at this time to fur- nish you data which you request, but I enclose to you herein a tentative draft of an Employers' Lia- bility Bill which I prepared last year and which I believe would form the basis for a bill to be intro- duced in the legislature of Minnesota. It may be possible that in Minnesota an affirma- tive declaration may be necessary in a bill of this character, that is, the right of employes or their next of kin to institute proceedings against employ- ers for injuries or death. This you will no doubt know better than I can as it may be necessary or applicable in your state. I would be glad to hear from you upon this sub- ject and sincerely trust that success may attend the effort to secure an effective Employers' Liabili- ty Law for the wage earners in your state. With kindest regards and best wishes, I am, Very truly yours, Sam. Grompers, President American Federation of Labor. As this letter came from the head of this great organization and is good evidence of what labor then supposed it wanted, we feel the short bill at- tached to that letter worthy of being copied — great history has since been made in this line. A BILL TO BE ENTITLED "AN ACT RELATING TO LIA- BILITY OP EMPLOYERS TO THEIR EMPLOYES." The General Assembly of do enact: 65 Section 1. That in all actions against employ- ers of labor whether such employers be a common carrier, a corporation, trust, combination, company, association, partnership or individual to recover damages for personal injuries to an employe, or where such injuries have resulted in his death, the fact that the employe, may have been guilty of con- tributory negligence shall not bar a recovery where his contributory negligence was slight and that of the employer was gross in comparison, but the dam- ages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe. All questions of negligence and contribu- tory negligence shall be for the jury. Sec. 2. That no contract of employment, insur- ance, relief benefit, or indemnity for injury or death entered into by or on behalf of any employe, nor the acceptance of any such insurance, relief benefit, or indemnity by the person entitled thereto shall constitute any bar or defense to any action brought to recover damages for personal injury to or death of such employe; Provided, however, that upon the trial of such action against employers of labor, whether such employers be a common carrier, a cor- poration, trust, combination, company, association, partnership or individual the defendant may set off therein any sum it, or he has contributed to- ward any such insurance, relief benefit, or indem- nity that may have been paid to the injured em- ploye, or, in case of his death, to his personal repre- sentative. 66 Sec. 3. That nothing in this act shall be held to limit the duty of a common carrier, a corporation, trust, combination, company, association, partner- ship or individual by railroads or impair the rights of their employes as they now exist. Sec. 4. This act shall be in force from and after its enactment. At this date ( Dec, 1908 ) a bill establishing com- parative negligence, allowing only set-off for bene- fits received through contract of employment, insur- ance, etc., seems to have been their ambition. This bill was also meant to compel negligence and cross negligence to be submitted to the jury. Of course the courts would construe such clause with the rule that it should not be submitted, unless there was legal evidence on the question. We had also written Mr. Debs the same request Which we had made to Mr. Mitchell and Mr. Gom- pers, and received from him the following letter : Nov. 19th } 1908. Mr. H. V. Mercer, Minneapolis, Minn. Dear Sir: Replying to your favor of the 10th inst. in which you, on behalf of the Minnesota Bar Association, ask for my assistance in drafting a bill for the com- pensation of laborers and those dependent upon them, I have pleasure in sending you the following statement : There are two methods of attempting to bring about a Compensation Act. One is to have acts 67 introduced step by step, enlarging the principle for a compensation act; the other is to introduce a gen- eral act in which all dangerous employments are dealt with. My knowledge of railroad affairs, and especially of the danger to which railroad employes are sub- jected, would induce me to ask for a compensation act applicable exclusively to them. If such an act were passed as an entering wedge other dangerous employments could thereafter be brought within its scope. Railroading has at all times been consid- ered by the courts a dangerous or extra-hazardous employment, in respect to which extra regulations by the state for the safeguarding of employes would, be proper exercise of the police power. In case of railroad employes the risk of their em- ployment can be demonstrated mathematically, and a just and proper compensation made to them by the state would be an example of social justice which other occupations could and would strive to attain. The literature on the subject may be obtained in a compact form by addressing the superintendent of Public Documents, Washington, D. C, requesting him to send you a bibliography on workingmen's insurance, which is issued by the Library of 'Con- gress. The English Compensation Acts of 1897 and 1900 are printed in the "Employers' Liability Act of 1890 and the Workingmens' Compensation Acts of 1897 and 1900, 6th edition," by Alfred Henry Ruegg, Butterworth and Co., London. 68 The literature on German Labor Insurance is found in the bibliography by Doctor Kuno Frank- enstein, Leipsic, 1895. I am sending you under separate cover copy of a speech by A. J. Sabath on his compensation act, which was printed in the Congressional Record, first session 60th Congress, under date of May 26, 1908. In addition to the foregoing you will find the following of interest: Senate Documents 207 and 213, first session 60th Congress, the former be- ing laws regulating the Liability of Employers for injury to employes, introduced by Senator Burkett, and the latter being the Special Message by the President on the decision of the Supreme Court in the Employers' Liability cases. Yours very truly, Eugene V. Debs. We do not wish to be understood, however, as in- timating that these leaders of labor were not then anxious about the welfare of laborers; we think otherwise and Mr. Debs' letter shows his familiar- ity ; but, the other leaders apparently had either not studied this particular question with the results in view which we now have, or had thought the field a hopeless one From the attitude of both Mr. Gompers and Mr. Mitcheiriater we think they had not then fully tak- en up the matter. 69 Views of Capitalists. To Mr. Andrew Carnegie we wrote calling his attention to the nature of the labors before the com- mittee and requesting his ideas as an employer. In response his private secretary answered : "•Mr. Carnegie desires me to say that he is strong- ly in favor of the passage of such a law as you de- scribe and thinks that the recent action in Britain will be found useful to you in framing the laws here." To Mr. James J. Hill, we sent a similar request, and from Mr. Begg, general solicitor of the Great Northern we received an extended letter for Mr. Hill's answer, saying in part: "I am advised that the Great Northern at one time worked out a plan of accident and health in- surance for its employes which also included a sys- tem of pensions for superannuated employes. The precise details of the plan I am not familiar with, as it was abandoned because of the fact that many of the state liability statutes forbade contracts whereby the employes would release the company from liability through insurance or other methods. It was also thought that the charter of the Great Northern would not authorize it to adopt such a plan. "I think all railway companies realize that it would be advisable if the states and the Federal government* if need be, would enact laws which would make employers liable to their employes for all injuries received by them, and to their next of 70 kin within some reasonable limit, for the death of all employes where the injury or death was not caused by the gross negligence of the injured or killed employe." We wrote the president of the National Manufac- turers Association, as we did to the labor leaders and capitalists: "To ascertain whether or not you have any data collected in brief form, and if not, whether you have any references at your command that would aid us in ascertaining any information that will lead to the drafting of a measure which seems fair from a public standpoint, and which can be justly en- forced as between the employer and the employee. "Any information in the way of pamphlets or any suggestions that you may have with respect to the matter, if you have had occasion to study it, will be appreciated, if you will be so kind as to furnish them to us." We later received a letter from the secretary to the effect that at the time our letter was received the president was away. The letter of the secretary, which was written November 27th, contained the following paragraph : "Mr. James A. Emery, General Counsel for the National Association of Manufacturers, and for the National Council for Industrial Defense, may be able to give you some information on the subject into which you are inquiring. Your letter has been forwarded to him in Washington today." Nothing further was heard from this correspond- ence although that organization has within a few 71 months taken up the study through its insurance department and vigorously prosecuted the subject. As this correspondence evidences epochal changes of the greatest business interests of the country, we may be pardoned for saying that on March 23rd, 1910, the chairman of their "Committee on Indus- trial Insurance," not only wrote approvingly of our work, but outlines their recommendations for criti- cism, opening the letter as follows: 1005 Chemical Building, Saint Louis, Mo., March the Twenty-third, Nineteen — Ten. Mr. H. V. Mercer, 510 Security Bank Bldg., Minneapolis, Minn. My dear Mr. Mercer: I have read with very much interest your argu- ment before the annual convention of the American Association for Labor Legislation, and some time ago I read your address before the Atlantic City Conference. I am confident that no lawyer in this country has given the Constitutional questions in- volved in indemnity and liability legislation more thought than you have. * * * Fred. C. Schwedtman, Chairman. Alliance with Labor and Capital. In a letter from Mr. S. D. Catherwood of Austin, who was prevented by illness from attending our bar committee meetings he suggested the policy of 72 co-operating with local labor and capital at an earlier stage than the writer had previously thought advisable. A few days afterwards, Judge David F. Simpson, called the attention of the writer to the fact that he had been discussing more or less the necessity of such law with some of the local officials of the labor unions, and suggested that he would be glad to re- quest them to see us if thought advisable. He made a similar suggestion as to the president of the Min- nesota Employers' Association. The chairman then asked Dr. McVey, who was at that time serving on the Minnesota Tax Commission, to get into touch with Mr. McEwan, who was about to take the office of State Labor Commissioner, and arrange for a conference with him ; in the mean time, Mr. Deacon and one or two others of the political committee of the State Federation, called at the office of the chairman and discussed the matter. That day or the day following Judge Simpson ar- ranged with Mr. Gillette and the writer, to lunch with him to arrange co-operation with the labor un- ions and the employers. It had previously been ar- ranged that the labor officers should meet our com- mittee at the office of the chairman, 510 Security Bank Building, at the close of the Bar committee session the following Saturday, but it transpired that our Bar meeting at the Minneapolis Club was only attended by W. S. Pattee and the writer until we invited into our session the Honorable John Lind, General Geo. P. Wilson and Geo. M. Gillette. 73 We went over with them at length the line of work the committee had been pursuing and it seem- ed to meet with their general approval. Mr. Pattee and the writer had come to the conclusion that we did not have sufficient data to draw a safe law that would be applicable to change the liability from that of negligence or fault of the employer to that of a risk of the industry, which we had found was the basis of the laws of some twenty-two (22) for- eign countries. At the close of the session at the Minneapolis Club, Dean Pattee and the Chairman, returned to the place of meeting with the labor officers and found them present. The session with them was continued from two until about seven o'clock in the evening, no representative of the employers being present. They and the employers seemed fair in their at- titude toward each other, and we discussed the ad- visability of harmonious work along the lines we were investigating. At the close of the session of the first conference with Mr. Gillette, the writer sent a letter to Mr. A. J. Eockne, who was about to become speaker of the House of Representatives of Minnesota, inform- ing him of the work that was being done and asking for an unbiased committee on labor— no answer came, until the Governor had recommended our plan, then Mr. Rockne sent his secretary to us to know if the matter was really one founded in poli- tics— it seemed he had taken the matter as of too little importance at the time we wrote. 74 Mr. W. E. McEwen, the State Labor Commis- sioner, then arranged for a meeting on a Sunday afternoon early in January, 1909, at the office of his department in the State Capitol at St. Paul, for a general conference on the matter between the rep- resentatives of the various labor organizations and the "writer, the president of the Bar Association, the president and secretary and one director of the Min- nesota Employers' Association. The meeting was held as scheduled. Various phases of the question were discussed — the method of presenting the matter to the legislature in such way that the question would receive fair consid- eration without getting a fight between either of the interested parties or the public was discussed. The committee was informed of the letter that had been sent to the speaker and that evidently no an- swer was intended to be made. The Labor Commissioner suggested that the gov- ernor had offered to' send a special message to the legislature on this important question, if we de- sired. In his 1909 message, Governor Johnson, had said to the Minnesota legislature : Labor Legislation. "I desire at this time to renew most earnestly and seriously my suggestions for legislation upon a sub- ject which, to my mind, is of the greatest import- ance to all classes of the laboring people of this state, generally described as the common-law doc- 75 trine as to the non-liability of a master to a ser- vant for injuries occurring through the negligence of a fellow-servant. Whatever may have been prop- er in the past as to this common-law doctrine, the present law is certainly ill-suited to the present time." This, of course, shows that he was alive to one phase of the question. We soon agreed that the special message might give some impetus and be a dignified way to present the matter to the legislature. It was then agreed that the writer should draft a memorial to the governor embodying the matter that had been discussed that Sunday afternoon, and asking him as the executive officer of the state, to transmit the matter to the legislature. It was agreed that the president of the Employ- ers' Association and the officers of the Labor Un- ions should meet on the Thursday evening follow- ing, at the office of the chairman, to go over the memorial so drafted and execute the same. That meeting was held and with one or two slight changes the memorial as drafted was executed in the form of a petition to the governor to send a spe- cial message to the legislature requesting the ap- pointment of a commission to investigate the sub- ject, and the passage of a law requiring the data of accidents to be reported, in order that some definite knowledge might be gained to aid in the drafting of a law. This he did, transmitting the petition and it call- ed forth more or less political discussion, and the 76 matter became one which created considerable con- troversy in the legislature. The result, however, was that three bills were passed ; Chapter 286, ap- pointing the commission; Chapter 234, requiring insurance companies to report accidents for a cer- tain period to the commission ; and Chapter 235, re- quiring employers to report accidents, with data in connection therewith, to the Labor Commissioner. The special meeting of the Bar Association held in St. Paul early in January received the report of the writer as chairman made for himself and Dean Pattee and with but two dissenting voices voted to pass their recommendations on to the legislature, and to authorize the Labor Commissioner Mr. Mc- Ewen and the president of the Minnesota Employ- es' Association, Mr. Geo. M. Gillette, to appear with the writer before the proper legislative com- mittees to urge the bills that we had recommended. We arranged a hearing before the committee at which the three of us led the discussion; the attendance was so large that the House Chamber was provided and even the standing room was filled. The committee did not first seem unanimous, but after full hearings and time for the discussion of a dozen or more bills that suddenly appeared it was decided that the recommendations were wise. The bills to accomplish the recommendations thus made were drafted by the writer and submit- ted to the representatives of employers and em- ployes and through them or some of them to lia- bility companies ; the result was to modify them in some particulars and so that when passed they 77 provided for the following things: Chapter 286, G. L. of Minn., 1909, provides for appointment of a Commission of three represent- ing laboc, capital and law, to investigate foreign laws, collect data, and report the results back to the next legislature, with a bill or bills, providing : "Plan for speedy remedy for employees for in- juries received in the course of their employment, which will be fair to the employees and the employ- ers, and just to the state." 'Chapter 234, requires all casualty and indemnity companies to file with the Commission a written report by October 1, 1909, of all accidents occur- ring to employees of those holding their policies in the state between July 1, 1906 and July 1, 1908; and by October 1, 1910, all accidents occurring dur- ing that year, with certain information provided in the Act. By Chapter 235, every employer of labor engaged in industrial pursuits is required to report all of his accidents which wholly or partially incapaci- tate, with the data therein required, to the 'State Labor Commissioner within thirty days of occur- rence. With the question of the desirability of a change the Minnesota commission has nothing to do. The legislature of our state has committed itself to the doctrine that the change is necessary. It has di- rected us to investigate the laws in force in for- eign countries; to draft a bill or bills which we think proper to make the change in Minnesota and present those bills with our report, containing 78 enough data and facts to show the strength and weakness, from a^ practical standpoint, when con- sidered in the light of our constitutional provis- ions. The question, then, in Minnesota, is not whether a change is desirable, but whether or not such a law as the commission may draft shall be a desirable law to effectuate the change which all con- cede should be made if it can be done fairly to all concerned. The Minnesota Employes Compensation Commis- sion. Although the bills were introduced early in the session, yet they were not passed until quite late and after thorough discussion. Governor John A. Johnson appointed the fol- lowing gentlemen : George M. Gillette, an employ- er; W. E. MJcEwen, State Labor Commissioner; H V. Mercer, Lawyer. This was a democratic gover- nor and following the recommendations of the bill that the commission should be non-pairtisan, he ap- pointed two republicans and one democrat. The Commission held its first meeting on May 11th, 1909, and the commissioners elected H. V. Mercer chairman. Preparing Brief on Foreign Laws. At the first meeting Mr. McEwen was requested to have one of his assistants compile a brief of the foreign laws to show the following things: 79 1. The industries covered in each country. 2. The nature of the liability in each country; whether compulsory or permissible, single or dual. 3. The method of providing the funds for pay- ment for injuries. 4. The compensation allowed; that is the amount of compensation and how payable to the various classes of injuries. 5. The remedy ; that is, how the compensation is obtainable or enforced. When Mr. McEwen began to look into that mat- ter he found it was difficult to get this information, because the laws were largely in other than the English language. After consideration by the com- mission he was requested to take the matter up with the Labor 'Commissioner of Washington, D. C, and ascertain whether or not the Government would not be willing to translate all of the foreign compensation laws. The Government consented to do so and the briefing was delayed in order to al- low that to be done. The foreign laws are now translated and printed by the department. Bequest to Public. The chairman was requested by the commission to compile an address to the public and cause the same to be published throughout the state, making a request of all persons interested in the matter to prepare and present their views in writing with all the information and suggestions they might have 80 upon the question to the commission. Particular- ly, requesting the following classes of persons to take part in such discussion: (a) Working men; (lb) Manufacturers, mining companies, railways and all other employers of labor; (c) the bench and bar; (d) Employers' Liability and Accident Insur- ance companies; (e) Economists; (f) all others who bad made a special study of the subject under consideration. The address also stated that the commission was particularly desired to have the following subjects covered : 1. Whether you favor the compensation act. 2. If so, whether you favor a, compulsory or per- missible compensation act. 3. (a) The industries that should be covered; (b) The basis of compensation — whether upon a wage schedule, a lump sum or how; (c) The meth- od of creating the sum from which the payment should be made; (d) The manner of administering the fund; (e) The constitutionality of the method which you suggest. This address was signed by all of the commis- sioners and was published by many of the larger papers of the state. Uniformity of Action Sought. We discussed the dangers of bills that were not uniform and talked of plans to get uniformity and where and how we could best start such a move- ment. 81 Finally, it was moved by Mr. Gillette and car- ried that the chairman of the commission commu- nicate with other commissions of a similar nature engaged in a study of the subject with the view of securing a joint meeting of such commissions and committees for the interchange of information and uniformity of action in the various states. At the second meeting the chairman reported that he had been in correspondence with such com- missions, and also with Dr. Lee K. Frankel and Mr. Miles M. Dawson, both of whom had visited Europe the previous year for the Russel-Sage foundation to study the conditions in Europe. At a meeting of July 9th it was decided that the chairman should send out notices for a conference on this subject to be held at Atlantic City, N. J., July 29-31, 1909; that the invitation should em- brace an outline of the subject to be considered. After some discussion as to the nature of the invi- tation that should be sent and the sort of a pro- gram that should be had, these matters were left to the chairman to carry out and on behalf of the com- mission the following invitation program was is- sued and sent to all persons that we knew to be interested in the subject: To You are invited to be present at The Marlbor- ough-Blenheim, at Atlantic City, July 29-31 and take part in a conference with the various State and Government officials and others, interested in legislation changing the basis of recovery for in- juries received in the course of employment from 82 that of negligence or fault of the employer, to that of risk of the industry or insurance; at which con- ference the persons whose names appear under the several subjects will be asked to lead the discus- sions along the respective lines appearing in the program herein. You are requested to extend this invitation to such persons as can contribute knowledge on the subject. Yours truly, H. V. Mercer, Chairman Minnesota Employees' Compensation Commission, Minneapolis. PROGRAM Workmen's Compensation Acts Conference, Atlantic City, July 29-31, 1909. I. Desirability Prof. John R. Commons, Madison, Wis. Hon. Chas. P. Neill, Washington, D. C. Hon. Geo. W. Smith, Buffalo, N. Y. General Discussion 27. Possibility Hon. P. T. Sherman, New York City, N. Y. Hon. A. W. Sanborn, Ashland, Wis. General Discussion III. Practicability Hon. E. E. Clarke, Washington, D. C. Dr. Lee K. Frankel, New York City, N. Y. Hon. John Mitchell, New York City, N. Y. Hon. W. E. McEwen, St. Paul, Minn. Hon. W. B. Dickson, New York City, N. Y. Hon. Miles M. Dawson, New York City, N. Y. 83 General Discussion The secretary's report of those proceedings shows that the following persons of various occupations were represented at that meeting : Blaine, John J., Boscobel, Wis. Member of Wisconsin Committee on Industrial Insurance. Lawyer. Chaney, Ltjcian W., Washington, N. Y. Bureau of Laibor. Corlett, W. W. New York, N. Y. Dawson, Miles M., New York, N. Y. Actuary. Faxan, Walter C, Hartford, Conn. Vice-President -Aetna Life Insurance Co., Accident and Liability Department. Frankel, Lee K., New York City. Gillette, George M. Member Minnesota Employees' Compensation Commission. Ingalls, Wallace, Racine, Wis. Member Wisconsin Committee on Industrial Insurance. Lawyer. Lyman, T. U., Hartford, Conn. Travelers' Insurance Co. McEwen, W. E., St. Paul, Minn. Commissioner of Labor. Memember Minneso- ta Employees' Compensation Commission. Mercer, H. V., Mmmea-polis, Minn. Member Minnesota Employees' Compensation Commission. Lawyer. 84 Molony, J. R., Hartford, Comv. Aetna Life Insurance Co., Accident and Liability Department. Moore, Franklin J., Philadelphia, Pa. U. S. Manager The General Accident Assur- ance Corporation, Limited, of Perth, Scot- land. Neill, Charles P., Washmgton, D. C. United States Commissioner of Labor. Parsons, A. W., New York City. Fidelity and Casualty Co. Petrasch, Carl S., New York City. United States Casualty Co. Lawyer. Reid, A. Duncan, New York, N. Y. Ocean Accident and Guaranty Co. of London, England. Robertson, W. Spencer, New York City, 30 Church St. Rowe, J. Scofield, Hartford, Corm. Secretary Aetna Life Insurance Co., < Accident and Liability Department. Seager, Henry R., New York, N. Y. Member New York State Commission. Professor Columbia University. Smith, George, Buffalo, N. Y. Member New York State Commission. Lacka- wanna Steel Co. Stone, John T., Baltimore, Md. President Maryland Casualty Co. Waller, J. T., Atlanta, Ga. Liability Insurance. 85 Watrous, Paul J., Milwaukee, Wis. Secretary Wisconsin 'Committee on Industrial Insurance. The meeting was called to order by the writer. Mr. Neill, Labor Commissioner was made presi- dent; the writer was made secretary that he might proceed with the administrative work (p. 3 A. C. Report). First, the conference took up the question of de- sirability of such legislation. Mr. Neill discussed it ; then called for Mr. Gillette, who also discussed it from the standpoint of an employer. There were remarks by others, including Mr. Dawson who spoke with reference to the foreign acts but the dis- cussion soon developed the fact that there was no division of opinion among those present as to desir- ability. 'There were about seven liability companies rep- resented at that meeting. The names of the per- sons present do not all appear in the secretary's record because they were not all given. Those gen- tlemen preferred not to speak in the meeting at all, but out of hours, assured the Minnesota Commis- sion that it was simply a question of time when that sort of laws would be passed in this country ; that they, personally, and their companies would not object to their passage in proper form, but up- on the contrary, aid us in helping to formulate the same. This surprised us, agreeably, for the writer had received objections to our attitude from the presi- dent of one of the big liability companies, to the 86 effect that such legislation would injure both law- yers and. liability companies. Of course our an- swer had been that both must conform to, or not impede progress. We understand that his views are now friendly to such movement. The writer had prepared an extended argument as to the desirability so that in case the other mem- bers should not all be present, there would be some discussion on this question, but owing to the uni- formity of discussion, did not present that paper. The conference next took up the question of the "Possibility" or constitutionality of such laws. It transpired that Mr. P. T. Sherman was in Europe. Mr. Sanborn telegraphed that he had been delayed on the way. Mr. John J. Blaine of Boscobel, Wis., a member of the Wisconsin Committee on Industrial Insurance, and Mr. Wallace Engalls of Racine, Wisconsin, also a member of their committee, were to speak on the question of the constitutionality instead of Mr. Sanborn. As they happened to both be out of the room, it was suggested that the writer speak on the question, having previously prepared under this sub-division so that in case of such emer- gency there would be some one to address himself to that question. We did not use the formal arti- cle we had prepared, but it was arranged that we might speak and "have leave to print." We took the position in that matter that under the police power the several states had the power to make compulsory legislation on this question in all dangerous employments and provide a remedy somewhat similar to that now enforced under the 87 police power as to fire insurance in the state of Min- nesota; that is, have a provision for arbitration in case of dispute and make that arbitration a condi- tion precedent to any action. It was afterwards agreed that we might extend this article so as to cover the question more exten- sively than it had been covered up to that time. The article that the writer printed on this question occupies the pages from 54 to 216 inclusive and the whole report covers but 319 pages. Mr. In- galls and Mr. Blaine came in before the discussion ended and both agreed that there were some good features in our argument but they were not so hope- ful as we were. Professor Seager, of Columbia Uni- versity, a member of the New York Commission, was of the opinion that we were about right, but stated that he had heard several lawyers in New York claim the contrary. There were many good talks. Mr. McEween made one of the most effective of all. These proceedings of the Atlantic City confer- ence, including this brief on the constitutionality, were published by the Minnesota Commission to the extent of 1500 copies. They were sold general- ly at fifty cents per copy, except such as were sent out to members of the legislature, members of the other commissions, attorney-generals of the dif- ferent states, the governors of the different states, the judges of all the courts of record through- out the Eighth Circuit of the United States and a large number of the bigger newspapers and journals of the country as well as to many 88 of the bigger libraries, but several hundred of them sold and it looks now as though the supply will be insufficient. During this convention a resolution was passed, p. 229, of the record, as follows : "Resolved, that this conference respectfully request the commissioner of labor of the United States to have the full text of such laws translated in English at the earliest possible moment and publish them in a bulletin of the Bureau of Labor." Another resolution, p. 230, recites that whereas it is necessary for more au- thoritive information in regard to the comparative cost to employers of employers' liability insurance under the various systems that the Commissioner of Labor be requested to have a competent investigat- or go over that matter and publish the results in a bulletin at some time in the future. There was also an offer from the Russell-Sage foundation to co-operate in this general movement. At pages 277-9 on the afternoon of July 30th, is a record of a resolution introduced by the committee on permanent organization to the following effect: 1. That a second conference for permanent or- ganization might be held at a later date as therein provided. 2. That until such conference the present chair- man and secretary continue in office. 3. That the chairman appoint a committee of seven of which he shall be a member to make the arrangements for such conference, the time and the place where the same shall be held, give notice of the same and draft by-laws for the consideration of the 89 conference. 4. That the committee be instructed to ask the governor of each state, where no commission or oth- er committee had already been appointed, to desig- nate some person or persons to take part in that conference and also invite representative employ- ers, workmen and other citizens, interested in the subject to be present. 5. That the committee be empowered to arrange an affiliation with the permanent committee of the International Congress of Working Men's Insur- ance. 6. That the name National Conference upon Compensation and Industrial Accidents be adopted temporarily and be recommended to the next confer- ence as the name of the permanent organization. , 7. "That these conferences should be solely for purposes of conference and discussion; that no res- olution committing them to any fixed program, pol- icy or principle shall be in order and that the com- mittee shall include a provision to that effect in the by-laws to be reported to the next conference." 8. That the committee be empowered to act as an executive committee, to provide for printing and circulating the proceedings of the conference and to arrange a program for the next conference; to col- lect material and data for the state committees and commissions and perform all other acts that might be necessary and advisable for the purpose of the conference. The conference adjourned. 90 Greatest Epoch Yet. It may well be said, we think, that this was the most practical discussion on this subject up to that time; that is, the discussion on the practical feat- ures; the desirability and the legal features, and this convention was really the greatest epoch in the development of this subject in this country, even to date. The press has commented not a little on the sub- ject and a great many courts, lawyers, state officers, labor leaders and business men have actually read this solid matter and discussed it. Mr. Boe, representing labor organizations, recent- ly attached our brief from that record to a short address before the Judiciary Committee of Congress in discussing a bill now before it and the commit- tee printed a special edition of 500 copies. The Atlantic City Conference and the part our Commission took in it has so advertised the work of this state as to make it really difficult to meet the demands for addresses, articles, etc. Mr. Gillette was called to New York to address the insurance people on the subject and his address greatly discussed in insurance journals. He was also placed on the program of the National Civil Federation at its November meeting in New York City where the question was the most elaborately discussed of any. Mr. Gompers, Mr. Mitchell (who had become a member of the New York committee) and other leading labor representatives, were pres- ent. Many leading business men of the country 91 spoke favoring the proposition. A member of the British Parliament spoke on the English Act; a rep- resentative of the Krnpp factory described the Ger- man system. Our commissioners all attended to keep in touch with this larger movement; the writer went largely because Senator Boot was advertised to address himself to the constitutionality of such legislation, yet he did not appear on that subject and we re- quired or permitted to discuss that question. Mr. McEwen was also a speaker. The record of those proceedings contains the ad- dresses of our three commissioners and many oth- ers. As the closing part of our address we urged the chairman to cause that association to work for uni- formity. The third annual meeting of the American Asso- ciation for Labor Legislation, held in New York City Dec. 28-30, 1909, had a program devoted to "Labor and the Courts," the record of which, pp. 37-120, contains articles on the subjects and by the gentlemen following: Labor Legislation and Economic Progress, Hen- ry W. Farnum. 'Constitutional Limitations and Labor Legisla- tion, Ernst Freund. Problems of Labor Legislation under our Feder- al Constitution, Frederick N. Judson. Precedent versus Condition in Court Interpreta- tion of Labor, George G. Groat. 92 Constitutional Problems in Workmen's Compen- sation, H. V. Mercer. Washington Meeting. The National Civic Federation held a meeting in Washington in January, 1910, lasting four days, and invited us to continue the "Second Conference" there at a time when the governors of the various states were to meet to discuss the conservation of re- sources and also a general meeting of the National Civic Federation would be held and again devote one meeting to this subject. On this subject Mr. Gillette, Mr. Compers, Mr. Mitchell and others spoke. The committee, through its secretary, call- ed the attention of the various governors to the proposition, sending them a copy of the Atlantic City Report and nineteen appointed delegates to attend; fifteen states had representatives that took part in the full day's discussion of this subject at the special meeting in the Willard Hotel. The only program was a rough outline of a bill prepared by the writer, and which was freely dis- cussed by others and defended by the writer during a session of about four hours, after general remarks had been had in the forenoon. It was decided at that conference finally that Professor Seager of the New York Commission, Mr. A. W. Sanborn, the chairman of the Wisconsin Commission, and the writer, as chairman of the Minnesota Commission, should present for discussion an outline of a bill at a meeting to be held in Chicago on the 10th of June 93 with the same delegates the governors had appoint- ed to this conference in Washington, D. G. The proceedings of the Washington conference are to be published with the general proceedings of the National Civic Federation and will go to the leading public men of all the states. In the Wash- ington meeting, Mr. Neill, of course, was chair- man, but he was engaged in matters in connection with arbitration of an important nature then pend- ing in Washington and the writer, being the secre- tary and familiar with the proceedings, was placed in the chair practically throughout the discussion. All of these interests are joining for the Chicago meeting. A bill in the form of that which appears under the third subdivision of this thesis, intended to meet the important requirements of the subject has been drafted by the writer, after hearing the various discussions and has been sent to Mr. San- born and Mr. Seager for their criticism before the Chicago convention on June 10th next. It is alto- gether likely, however, that they will present re- spectively the bills that the New York Commission and the Wisconsin Committee have prepared and all these bills be up for discussion. We therefore notice those bills here. Wisconsin Committee. Wisconsin had a commission appointed at the 1909 session of their legislature, or rather a com- mittee from the senate and house of representatives entitled "Industrial Insurance Committee of the 94 Wisconsin State Legislature." That commission consisted of the following senators: A. W. San- born, Ashland, Wisconsin; E. T. Fairchild, Mil- waukee, Wisconsin; John J. Blaine, Boscobel, Wis- consin. Also the following Assemblymen : Wal- lace Ingalls, Racine, Wisconsin; C. B. Oulbertson, Stanley, Wisconsin; Walter D. Egan, Superior, Wisconsin; George G. Brew, Milwaukee, Wiscon- sin ; Sec. R. J. Watrous. That commission took tes- timony throughout the various sections of the state, as we understand it, and presented finally for pub- lic discussion, two general drafts for bills. One, a bill which in effect removed some of the present de- fences of employers. It provided in effect that the employer should not be permitted to prove (a) as- sumption of risk, (b) negligence of a fellow servant (c) contributory negligence (d) that there was a contract to exempt the employer from the provis- ions of the act. This was reported as a tentative bill on March 25th, 1910, for a hearing to be had thereon on April 12th, 1910, at nine o'clock in the School Boaird Chamber of the City Hall of Milwau- kee. They presented a second tentative bill for that report for hearing at the same time which contained briefly, the following features : Section 1. The act was made to apply to public corporations; that is, municipal corporations and to all other employers who elected to accept and operate thereunder. Sec. 2. The act made every employer liable to this fund in damages to the extent of the compensation, provided for injuries or death sustained by an em- 95 ployee in his employment while engaged in the line of his duty as such employe, except for such dam- ages as are caused by the wilful misconduct of such employee. It did not provide that it should be such injuries as arose out of the course of employment, as some of the foreign acts do. Sec. 3. The act provided that every person engag- ed as an employer in the state should be presumed to accept the provisions of the act; that every em- ploye should be deemed to have accepted the provis- ions as part of his contract of employment and to have waived his right to recover damages for inju- ries received other than as provided in the act, un- less at the time of hiring, the contract was in writ- ing to the contrary. Sec. 4. It also provided that every employer should provide a measured scale of compensation, not less than the prices specified in section 12 of the act. ( The rates we shall not discuss, as they ex- pect to make recommendations later). There was a provision requiring the risk to be fully carried by insurance, according to the scale required. That might be done in various ways as outlined in the proposed form. It also provided that the employer should pay the premium and that that might be reimbursed by the state to the extent of one-fifth of a reasonable amount paid as premi- ums; that a claim for reimbursement accompanied by the receipt for the full amount of premiums paid should be filed with the Secretary of State and paid out of the general fund for the same. Employers were required to provide compensation and file a 96 statement to that effect on blanks furnished for that purpose with the Commissioner of Labor and Industries. Provision was made that insurance companies should be required to pay according to the act ir- respective of the length of employment of the in- jured. There were various other provisions such as conditions for notice as a condition precedent so that if a dispute arose it should be submitted to a board of arbitration consisting of three members with authority to subpoena witnesses, etc., etc. On May 29th we received reports from the Wis- consin Committee, dated May 28th, 1910, with re- spect to two tentative bills; one to modify the lia- bility of employers in negligent action, the other to fix a measured scale of compensation for industrial accidents, as being presented for consideration. Those measures were announced to be different from those presented by the committee under date of March 25th, alterations having been made as the result of suggestions and criticisms offered at the public hearing in Milwaukee April 12, 13 and 14th. The committee expressly wishes to be understood that the two measures now presented are merely tentative and no final action will be taken thereon until employers, employees and others have been given an ample opportunity for the expression of their criticisms at public hearings to be announced from time to time. We call attention here to the following things : The bill to modify the liability of employers in negligent actions contains in substance the follow- 97 ing elements. If a negligent action be brought by an employee for injuries received while engaged in the line of his duty it should not be a defence to the plaintiff to show : 1. Assumption of risk; 2. Negligence of a fellow-servant; 3. Any contract to exempt the employer from the provisions of the act and not expressly so pro- vided by statute. 4. That the term "employer" should include mu- nicipal and quasi public and public corporations. The principle of that law is, in our judgment, bad. Reduced to the last analysis it can have but one object, to force the employers to come under the other act to avoid the penalties of this one. That result must have been imposed upon the theory that the committee feared that the other proposed act could not be constitutionally enforced. If it be the purpose of the State of Wisconsin to require em- ployers to come under the act which they are about to provide as a means of police regulation, then the law should directly provide for it and not at- tempt to make such gross penalties that employers would be afraid to test the law. See State ex rel. Young, 209 U. S. 123 (Law Ed.) 209. Besides this bill is extremely bad policy; that is, poor policy. It is poor business. No business can be successfully operated for a great length of time against the great industries of the country backed as they are by the finances, the brains and the whole communities de- pendent upon them for support, when those indus- tries rightfully feel that there is an attempt on the 98 part of the public to coerce them into obedience. It is wrong principle in any walk of life; it is espe- cially bad in politics and if pursued will probably have the result of defeating the whole scheme in Wisconsin, as it would in most states. We do not believe employes will want a law based upon that principle. We believe employers will not meet this question fairly so long as their acts are not recip- rocated. If passed, it will be passed after a fight, and passed under conditions that will not have a tendency to give the subject a fair trial on its mer- its. A worthy subject of such breadth ought not to be so encumbered and burdened. It is against good business, good principle, good policy. It can- not last. The second bill proposed on the 28th of May is a revision of the former one. It has these peculiar features : 1. It applies to all employers, including public and quasi public corporations; it excludes certain persons and includes certain others. 2. The employer is presumed to accept the pro- visions of the act, as is the employee unless at the time of hiring a contract in writing is made to the contrary, and this seems to be left to the em- ploye. No other recovery can. be had by one who accepts the act. 3. The employer is liable for the damages to the extent which the compensation provides if the in- jury is sustained by an employe while engaged in the line of his duty, except for such injuries as are caused by the wilful misconduct of the employe. 99 The compensation is to become a lien upon the as- sets of the employer from the date on which the no- tice is served on the Clerk of the Circuit Court, in which the last known place of business of the em- ployer was situated. This section is particularly vicious to the employer. It does not provide that the injury shall arise out of the employment. A man might be proceeding in the course of his em- ployment, in a non-hazardous occupation and a third person might injure him; it would be in his employment, in the line of his duty and yet the em- ployer would have to pay for it. Prom the stand- point of both employer and employe this is partic- ularly bad because the question of wilful miscon- duct of the employe is left open. This leaves a question as to whether there is liability at all and does not make that definite liability which both sides and the state ought to have to properly cover this subject. The compensation provisions have some excellent features. Section nine provides how they shall decide the annual earnings, etc. Section ten provides for no- tice. Section eleven also provides as to a notice. Section twelve provides for a physical examination. Section thirteen provides that in case a dispute arises under the act including any to which the state might be a party, the matter shall be submit- ted to arbitration, the board to consist of three ar- bitrators, one of whom shall be ex-officio the Com- missioner of Labor and Industrial Statistics who may authorize the deputy commissioner to act in his place. Within thirty days after passage of the 100 act, the governor shall appoint a member who shall serve one year, and another who shall serve two years. Thereafter the members appointed for two years with vacancies for the unexpired term filled, etc., etc. The paternal feature in the former recommenda- tions seems to be cut out of this. Although this scheme has many very valuable features, the diffi- culties with it, it seems to us, are principally fun- damental. It should cut out the idea of two laws entirely and simplify the act somewhat, although it is getting down pretty nearly correct in many of the substantial features. By the time they have discussed it awhile longer they probably will turn out a good law. The flattering thing to us is that they are getting nearer and nearer to the scheme we now believe to be correct. New York : By chapter 518 of the Laws of 1909 of the State of New York, the legislature provided for the appointment of a commission to inquire into the question of employer's liability and other mat- ters. The members appointed to that commission from the Senate were J. M. Wainwright, Frank C Piatt, Howard R. Bayne. For the assembly, Al- fred D. Lowe, George A. Voss, Frank B. Thorn, Cyrus W. Phillips, Edw. D. Jackson. The gov- ernor appointed Henry R. Seager, Professor of Political Economy in 'Columbia University, 'George W. Smith of the Lackawanna Steel Company, Buf- falo; Phillip Pitus (resigned) President of the Railway Trainmen's Association, Kingston; Otto M. Eidlitz as governor of the Building Trades Em: 101 ployers' of New York City; John Mitchell, Vice- President of the American Federation of Labor; Miss Crystal Eastman, Secretary of the New York branch of the American Association for Labor leg- islation. The commission organized on the 22nd of Jnne, 1909, by electing Mr. Wainwright chair- man; Mr. Seager Vice-chairman and Miss East- man Secretary and divided into sub-committees. The purpose of that committee as expressed in the act was, "to inquire into the working of a law in the state of New York relative to the lia- bility of employers and employees for industrial ac- cidents and into the comparative efficiency, cost, jus- tice, merits and defects of the law in other indus- trial states and countries relative to the same sub- ject and as to the causes of accidents to employees, etc." The commission appointed Joseph C. Cotton, Jr., of New York City, its counsel. The appoint- ments all seem to have been chosen with care in both New York and Wisconsin. New York has had a great many special reports and taken a great deal of evidence. It has discussed in a pamphlet the previous study of the problem ranging over quite a number of pages, discussed the growth of the com- mon law system of liabilities, in its history and its present status, the former employes' liability law, etc., etc. The brief of the report states that they will recommend two general kinds of legislation in regard to employers' liability. They get back to the case of Persault v. O'Reilly, 74 N. Y. 509, and doubt the due process of law proposition, for the 102 legislation which they are about to recommend, but state that they are not yet sure of the consequences. It seems to us that this is not the proper principle that will be controlling under the constitution. The question of liberty of contract is undoubtedly the more doubtful question in the case. In fact, a care- ful study as to the constitution of Minnesota and the constitution of the United States leaves us of the opinion that there is little question about it ex- cept as to non-dangerous employments and it not only could not but would not need be enforced in them. With respect to the plan of legislation recom- mended by the State of New York, it was along two lines: (a) Compulsory compensation in a few in- dustries; (b) Amendments to existing laws coupled with a legnthy compensation plan based on a pro- posed contractual theory. Their conclusion as to manner of the legislation or as to the desirability was as follows: 1. That the present system of New York works on a basis economically unwarranted and unfair; that it is wasteful, uncertain and productive of an- tagonism between workmen and employers. 2. That it is satisfactory to none, and only toler- able to those who practically disregard their legal rights and share the burdens of accidents. 3. That the evils are most marked in hazardous employments where the trade risk is high and acci- dents are frequent, that as a matter of fact work- men in a dangerous trade do not, and practically cannot, provide for themselves adequate accident 103 insurance and therefore the burdens of serious ac- cidents fall upon them. It is not the purpose to reduce the matter to a single liability, but to follow the English plan, which practically means to keep in operation three systems: (a) The common law. (b) The statutes or liability as it previously existed, (e) The com- pensation plan, and make them elective and exclu- sive when elected. This of course, irrespective of the other merits of the bill is burdensome, waste- ful, and contains substantially all of the evils of the old system with certainties added in others. It is not applied to all persons; that is, to all industries and leaves the question of fault still open, the ques- tion of responsibilities between the two. They leave the party also to his legal remedy. They seem to think that under their constitution the courts can- not be deprived of jurisdiction of industrial dis- putes. We do not believe that that is the necessary effect of the constitution of New York. To our mind, this does not in any sense, nor to any degree, solve the problem, so that it will be satisfactory to any- body. They might at least draw their law so that as to this liability it should be conditioned upon a sub- mission to arbitration as a condition precedent to bringing any action and that the amount of the liability when so determined should be conclusive. We believe their court would construe the consti- tutions to permit arbitration first and after that a jury if desired; certainly all accidents not resulting in death could be covered. That state has been al- most constantly modifying the common law. 104 Then the person who fought this liability would be bound by that condition and the constitutional pro- vision certainly could not, in any way, affect that. Now, as to the proposed amendments of their em- ployers' liability act coupled with the elective plan of compensation, the commission did not intend to cover all the dangerous industries, but made a plan to which both parties might consent and made it substantially as outlined in the compulsory bill because they believed in the compensation policies and saw no reason why employers and employees who are sufficiently enlightened should not be al- lowed to adopt it. It is stated that they supposed that under the decision of Johnson v. Wells-Fargo, 184 N. Y. 379, such plans would not be carried out without statutory authority. This probably is the correct construction of that decision, but we doubt whether they can provide a relief by voluntary contract. If it be against the policy of the state of New York, as expressed in its constitution, as the committee seems to think, to prevent the de- termination of these questions by any other agency than the jury, then there is no reason why that would not apply to all the contracts voluntarily made, under a law of the legislature. The only method by which they could deprive themselves of that privilege, if that be a proper construction of the constitution, is under the general welfare or police regulation power. That power existed in the body of organized government, which was suc- ceeded by the state of New York, and before New York had a constitution. It exists now outside of 105 that power and that power was never intended to take that right from the general police power, if we understand the proper theory of government. We have not extended the studies of the New York sys- tem, for 'some of the evils are the same as the Wis- consin plan, but we think that a better system than they have worked out for New York could be made, if along the lines indicated in our third division. Montana Mining Act. Chapter 67 of the Laws of 1909 in effect creates a state accident fund for relief of workmen in and about coal mines. It provides a special tax on em- ployers. The fund accumulated is to be invested by the state auditor to pay to dependents, other than foreigners, of miners killed in the course of employment, $3,000. If they are disabled instead of killed, $1.00 per day. Provision is made for loss of members. Acceptance of the benefits deprives a person of other action, against an employer who has paid the tax. Mr. Gillette was invited by the executive to, and did, appear before the Illinois legislature at its 1910 session and discussed the advisability of creating a new commission to join in the work. The bill was passed and the commission appointed and they will have the aid of other states now. From the calls our commission has had for information and views upon the subject, we judge that bar associations, legislators, state officers, newspaper editors, manu- facturers and laborers from South Carolina to Ore- 106 gon are studying the question. Congress, too, is giving a great deal of committee time to it this ses- sion. Consular Reports. One of the most notable accomplishments of the second meeting of our conference was to cause a committee to be appointed, consisting of Mr. Gil- lette, Mr. Sanborn and Mr. Mitchell, for the pur- pose of obtaining, and they did obtain, through the Secretary of State the submission of certain specific questions to the consuls of the United States throughout the foreign countries with respect to the operations of the foreign acts in those countries. The reports on those countries are beginning to come in through the consular reports and will probably prove of great value. We need hardly prolong the discussion to con- clude that it has been the experience of practically all observing people who have studied the question that the common rule of fault should not only be changed, but the scheme revolutionized into a sub- stantial form of compensation. 107 II. Possibility of Worker's Compensation Acts. (For a more extended discussion of the legal fea- tures see articles by H. V. Mercer : Atlantic City Conference Report, Annual Report 3d meeting of American Association for Labor Leg., Proceedings National Civil Federation meeting of Nov., 1909. Proceedings Nat. Civ. Fed. on Uniform Laws, Wash- ington, D. C, Jan., 1910.) Would a law changing the basis of recovery by an employe from that of negligence or fault of the employer to that of a risk of the industry be consti- tutional? Can we enact workmen's compensation acts in the United States that will be constitutional? In our opinion, this question must be answered in the affirmative if Courts give to it the same breadth of vision as other questions of equal public impor- tance, but the source of its justification in the states, except as to public works, must be the police power. Dual Government. To answer this question, we must consider that our government is built upon a dual system, having a federal constitution of granted powers, including limitations, and state constitutions of limitations upon powers. 108 Amendments to Federal Constitution IX, X. McCulloch v. The State of Maryland, et al., 4 Wheaton, 406 (L. Ed. 596). Lane Co, v. Oregon, 7 Wallace, 76 L. Ed. 101. In Buffington v. Day, 11 Wallace, 113 (L. Ed. 122), it is said: "It is a familiar rule of construction of the Con- stitution of the Union, that the sovereign powers vested in the state governments by their respective constitutions, remained unaltered and unimpaired except so far as they were granted to the Govern- ment of the United States. That the intention of the framers of the Constitution in this respect might not be misunderstood, this rule of interpre- taition is expressly declared in the 10th article of the amendments. * * *" In United States eso rel. Turner v. Williams, 194 U. S. 296 (L. Ed. 979-986), Mr. Justice Brewer gives a separate concurring opinion in which, re- ferring to the 10th Amendment, we find this lan- "The powers the people have given to the general government are named in the Constitution, and all not there named, either expressly or by implication, axe reserved to the people, and can be exercised only by them, or upon further grant from them." In Twining v. New Jersey, 211 U. S. 78, it is said : "It must not be forgotten that in a free represen- tative government nothing is more fundamental than the right of the people through their appointed servants to govern themselves in accordance with their own will, except so far as they have restrained 109 themselves by constitutional limits specifically es- tablished; and that in our peculiar dual form of government nothing is more fundamental than the full power of the state to order its own affairs and govern its own people, except so far as the Federal constitution expressly or by fair implication has withdrawn that power. The power of the people of the states to make and alter their laws at pleas- ure, is the greatest security for liberty and justice." Under this dual form of government we study the Federal Constitution to see if the power to legislate on this subject has been given to the United States government; we also study both that constitution and the constitution of the particular state to see if such legislation has been prohibited to the state. This of course, upon the theory that the Federal Government is built upon granted powers, but the state government upon inherent, though limited powers. Even the state must have granted powers on matters not of a governmental nature. Sutherland-Innes Co. v. Village of Evart, 86 Fed. 597. Under these circumstances we must keep in mind three things: First, Has the power of legislation upon this question been delegated to Congress by the Federal Constitution? Second, Has the powe,r of such state legislation been prohibited by the Fed- eral constitution? Third, Has it been prohibited by the particular states? 110 Public Work is not Controlled by the Constitution- al Rule as to Freedom of Contract. In Aitkin v. State of Kansas, 191 U. S. 205 (L. Ed. 148) , the Supreme Court held that the freedom of contract guaranteed by the 14th Amendment was not infringed by the provision® of the Kansas stat- ute, making it a criminal offense for a contractor for public work to permit or require an employe to perform labor upon that work in excess of eight hours per day. That opinion was by Mr. Justice Harlan. It was stipulated that the labor performed was healthful, outdoor work, not dangerous, hazardous or in any way injurious in the case under consideration. In the course of that opinion the court said : "We rest our decision upon the broad ground that the work being of a public character, absolutely un- der the control of the state and its municipal agents acting by its authority, it is for the state to pre- scribe the conditions under which it will permit work of that kind to be done. Its action touching such a matter is final so long as it does not, by its regulation®, infringe the personal rights of others, and that has not been dona" Aitkin v. Kansas, 191 U. S. 205 (L. Ed. 148- 159). This decision like many of the others recognizes the liberty of contract in non-dangerous transac- tions of a private nature but not as applied to pub- lic work. Ill The commerce clause of the federal constitution grants to Congress the right to control relations of master and servant in so far as needed in such com- merce, but does not grant to the federal government the right to deprive the State of its police power or to regulate state commerce. (a) The commerce clause was not intended to, and does not, take away the police power of the states. (b) The states execute the police power even with respect to interstate commerce but do so for their self protection and only to such extent as not to amount to regulation in the constitutional sense. That clause reads : "The Congress shall have power; * * * To regu- late commerce with foreign nations, and among the several states, and with the Indian tribes. * * * " Const, of U. 8., Art. 1, Sec. 8. Since the decision of the Supreme Court in How- ard v. III. Cent. R. R. Co., 207 U. S. 463 (L. Ed. 297), there is no longer any doubt but that in so far as the relations of employer and employe are concerned, they are under the control of Congress when a part of the means or administration of the commerce clause, but are not so when they relate to purely intrastate commerce. When Congress re-enacted this law with changes to meet the Howard decision, the Supreme Court of Errors of Connecticut took a knock at the statute in Hoxie v. N. Y. N. H. & H. R. Co., announcing twenty-four collected propositions, by which it in- 112 tended to reason out, and did decide, that that stat- ute violated the Fifth Amendment to the Federal constitution as being an arbitrary deprivation of property, rather than a legislative regulation of commerce depending upon the Adair case, 208 U. S. 161, for the latter principle, to show want of connection between the subject of injury and inter- state commerce. That authority is so obviously re- moved one degree from the principle announced in the Howard case that it will probably not be a serious question should the cause reach the U. S. court of last resort. The Howie case also lays much stress upon the fact that it is within the province. of the state to regulate master and servant, generally speaking, that congress may regulate them on purely inter- state business, as to substantive law but cannot direct the state courts to follow that regulation if it is partially one of remedy. It seems to us this last begs the question : that the statute does have an element of remedy, but not of practice; that the so-called remedy is really a change of the substan- tive common law and that the Supreme Court of Errors of Connecticut in the Hoxie decision, forgot that not only the constitution of the U. S. but "the laws of the U. S. which shall be made in pursuance thereof * * * shall be the supreme law of the land ; and the judges in every state shall be bound there- by, anything in the constitution of the state to the contrary notwithstanding." Art. VI, U. S. Const. Indeed if this law raised no "Federal question," this decision is so clearly an arbitrary action of the 113 state of Connecticut through its judiciary, as to be a denial by the state of the Federal privileges and immunities and due process of law so flagrant that the decision itself would raise a Federal ques- tion which the supreme court would reverse. Foyweather v. Ritch, 195 U. S. 276, and cases there cited. Besides this act is sustained by Watson v. St. L. I. M. & 8. Ry. Co., 169 Fed. 942, showing in fact how the Adair case treated the Howard case as settling the question. The rule generally applied to delegations of Fed- eral power, prevails with respect to this question, that the states may act till Congress exercises its powers. Pierce v. Van Dusen, 78 Fed. 693 (6 C, C. A.) ( Decision by Harlan, Taft and Lurton ) . The commerce clause does not take, and was not intended to take, the police power from the states; but it does give to Congress such powers over the subject as to exclude state action when Congress does act, except as to the police power. In McLean v. Denver & R. G. R. R. Co., 203 U. S. 3847, (L. Ed. 78) it is said: "It has been too frequently decided by this court to require the restatement of the decisions, that the exclusive power to regulate interstate commerce is vested by the Constitution in Congress, and that other laws which undertake to regulate such com- merce or impose burdens upon it are invalid. This 114 doctrine has been reaffirmed and announced in cases decided as recently as the last term of this court. While this is true, it is equally well settled, that a state or territory, for the same reasons, in the exercise of the police power, may make rules and regulations not conflicting with the legislation of Congress upon the same subject, and not amounting to regulations of interstate commerce." In the Adair case, 208 U. S. 161 (L. Ed.), Mr. Justice Harlan said : "There are, however, certain powers existing in the sovereignty of each state in the Union, some- what vaguely termed 'police power,' the exact de- scription and limitation of which have not been at- tempted by the courts. Those powers, broadly stated, and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public." There is no reason, except the Constitution, why America is not as well entitled to protect the gen- eral welfare as is any foreign state. Indeed it has been the boast of the admirers of our system that it sufficiently restrains, yet amply protects all. Is this question an exception to the rule? Did the framers of this admirable system so far protect individual property rights as to hamper their reasonable regulation when the general wel- fare requires the protection of personal rights? It may be true that the Divine Bight theory of the state had prevailed abroad prior to our separation ; it certainly is true that the theory of individualism was, and since prior to the Reformation, had been 115 greatly impressing itself upon that school of thought which produced the compact theory. The fundamental reason for this is strongly evi- dent — the so-called granted rights of the Divine theory left too much restraint in the state; but the individualism of the compact theory claimed all rights of government except where delegated or lim- ited; yet intending to delegate enough to secure the greatest good for the greatest number — inside of that rule, the bill of rights was intended to secure individual rights and yet leave adequate public pro- tection and control. Delegations to Federal Government. The Federal Constitution does not grant to Con- gress the right to control the states in their general policy and their general welfare — the police power — except to hold them together and secure a repub- lican form of government, to regulate interstate commerce, control the territory under the jurisdic- tion of the Federal government alone, and see that under the 14th Amendment equal, reasonable and just legislation which is not arbitrary, shall be made. The commerce clause does not take, and was not intended to take, the police power from the states ; but it does give to Congress such powers over the subject as to exclude state action when Congress does act, except what is necessary for state protec- tive measures. 116 In McLean v. Denver & R. Q. R. R. Co., 203 U. S. 38-47, (L. Ed. 78), it is said: "The -principle decided in these cases is that a state or territory has the right to legislate for the safety and welfare of its people, and that this right is not taken from it because of the exclusive right of Congress to regulate interstate commerce, ex- cept in cases where the attempted exercise of au- thority by the legislature is in conflict with an act of Congress, or is an attempt to regulate interstate commerce." , In the Adair case, 208 U. S. 161 ( L. Ed. 436 ) , Mr. Justice Harlan said: "There are, however, certain powers existing in the sovereignty of each state in the Union, somewhat vaguely termed 'police power,' the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated, and with- out, at present, any attempt at a more specific lim- itation, relate to the safety, health, morals, and gen- eral welfare of the public. Both property and lib- erty are held on such reasonable conditions as may be imposed by the governing power of the state in the exercise of those powers, and with such condi- tions the 14th amendment was not designed to inter- fere." This makes it clear that in the exercise of the po- lice power reasonable regulations may be made even though they may affect interstate commerce; pro- vided they do not conflict with the action of Con- gress or attempt to regulate interstate commerce. 117 The state's police power can only interfere with, interstate commerce for self protection. In Railway Co. v. Hibson, 95 U. S. 465, L. Ed. 530- 1, in reaching the conclusion that the State of Mis- souri had unduly regulated interstate commerce, the court stated in effect that while the police power was not granted over such commerce to the federal government the rights were so nearly granted as to compel the courts to guard it with diligence against needless intrusion, and admitted the following principles : "We admit that the deposit in Congress of the power to regulate foreign commerce and commerce among the states was not a surrender of that which may properly be denominated police power." And further: ^Many acts of a State may, indeed, affect Com- merce, without amounting to a regulation of it, in the constitutional sense of the term. And it is sometimes difficult to define the distinction between that which merely affects or influences, and that which regulates or furnishes a rule for conduct." In the case of Mayor, Alderman, et al. of New York v. Miln, 11 Peters, 102, L. Ed. 660-62-64, there is an elaborate opinion on the police powers. In February, 1824, the legislature of New York passed an act providing that the master of every vessel arriving in New York from a foreign port, or from a port of any of the states other than New York, was required under certain penalties to report in writing the names, ages, and last local settlement 118 of every person who should, have been on board .the vessel during the voyage, and that if any of the pas- sengers should have gone on board any other vessel and landed at any other place with a view to pro- ceed to New York the same should be stated in the report. The corporation of the City of New York instituted an action under this law for debt against the master of the ship Emily to recover the penal- ties imposed by this act, etc. The defendant de- murred to the declaration and the judges of the cir- cuit court being divided in opinion as to whether or not this act regulated trade and commence be- tween New York and foreign ports and was there- fore unconstitutional, certified the case to the Su- preme Court. The court said on page 134 : "We shall not enter into any examination of the question whether the power to regulate commerce be or be not exclusive of the States, because the opinion which we have formed renders it unneces- sary ; in other words, we are of opinion that the act is not a regulation of commerce, but of police ; and that being thus considered, it was passed in the ex- ercise of a power which rightfully belonged to the And: "The power then of New York to pass this law having undeniably existed at the formation of the Constitution the simple inquiry is, whether by that instrument it was taken from the states and grant- ed to Congress; for if it were not it yet remains with them. 119 "If as we think, it be a regulation, not of com- merce but police, then it is not taken from the States." With respect to the difficulties of defining the po- lice power the court continues: "We choose rather to plant ourselves on what we consider impregnable positions. They are these: that a state has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States. That, by virtue of this, it is not only the right but the bounden and solemn duty of a state, to advance the safety, happi- ness and prosperity of its people, and to provide for its general welfare, by any and every act of legisla- tion which it may deem to be conducive to these ends ; where the power over the particular subject, or the manner of its exercise is not surrendered or restrained in the manner just stated. That all those powers which relate to merely municipal leg- islation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a state is complete, unquali- fied and exclusive." It is thus evident that while it is sometimes diffi- cult to draw the line between that which merely af- fects or influences, as distinguished from that which rules or conducts, commerce, yet the state has the right of self preservation or police and this subject has reached a condition where self preservation and 120 police require that its citizens be protected, and com- pensated. Except as herein shown the states can act as freely as foreign nations. A search of the Federal constitution fails to re- veal any delegation of the police power within the states; neither the Federal nor state constitution has prohibited it to the state, except to the extent of requiring equal, reasonable and lawful regula- tions. If the subject be a proper one for state control under this power, it needs no delegation to the leg- islature. In Beer Company v. Massachusetts, 97 U. S. 25, L. Ed. 989, in a liquor case, the court held that all rights are held subject to the police power of the state and that the legislature may provide for the discontinuance of that which is injurious to the health, notwithstanding individuals or corporations may thereby suffer inconvenience, saying : "If the public safety or the public morals re- quired the discontinuance of any manufacture or traffic the hand of the legislature cannot be stayed from providing for its discontinuance by any inci- dental inconvenience which individuals or corpora- tions may suffer. All rights are held subject to the police power of the state." In United States v. DeWitt, 9 Wall. 41, L. Ed. 593-4, through an opinion by Chief Justice Chase, the Supreme Court said, in relation to a. law making it a misdemeanor to mix certain kinds of oils: "As a police regulation relating exclusively to the internal trade of the states, it can only have effect 121 where the legislative authority of Congress excludes territorially all state legislation as for example in the District of Columbia. Within state limits it could have no constitutional operation. This has been so frequently declared by this court; results so obviously from the terms of the constitution, and has been so fully explained and supported on for- mer occasions, that we think it unnecessary to en- ter again upon the discussion." This makes it evident that the police power, gen- erally speaking, rests in the state government, ex- cept over such territory as Congress has the power of control. In Mugler v. Kansas, 123 U. S. 623, L. Ed. 205- 211-212, it is held first that lawful state regulation in the exercise of the police power to prohibit the manufacture and sale of liquors may be enforced against persons who at the time happen to own property whose chief value consists in its fitness for such manufacturing purpose without compensating them for the diminution in value resulting from such prohibitory enactments. The constitutionali- ty of this statute was upheld. Our Republican democratic form of government waSoc. Willougbby, Nature of State. Lowell's Essays on Government. "All men are created equal ; they are endowed by their Creator with certain inalienable rights, and among those are life, liberty and the pursuit of hap- piness." Declaration of Independence. Constitution of Nebraska. •Constitution of New Hampshire. Constitution of Vermont. Constitution of Virginia* — see others. All men, when they form a social compact, are equal in rights. Constitution of Connecticut. Constitution of Florida. Constitution of Oregon. Constitution of Texas. All freemen when they form a social compact, are equal in rights. Constitution of Alabama Constitution of Arkansas. Constitution of Kansas. 135 Constitution of Mississippi. The same principle is recognized in those foreign estates that have modern constitutions) all of which have been formed after our own system and some of them patterned from its provisions. Constitution of Switzerland. Constitution of Mexico. Constitution of Prussia. Constitution of Italy, etc. "All Swiss shall he equal before the law." Constitution of Switzerland, Art. 4. No person shall be judged by special law or spec- ial tribunal. Constitution of Mexico. "All Prussians shall be equal before the law." Constitution of Prussia, Art. 4. "All the inhabitants of the Kingdom, whatever their rank or title, shall enjoy equality before the law. All shall equally enjoy civil and political rights." Constitution of Italy, Art. 24. The law should be the same for all, both in pro- tecting and punishing. This equality is asserted to be a self evident truth which existed independently of any human law and before it. Ritchie, Natural Eights, pages 244-5. 136 It also seems to be the general rule that the mat- ter of equal protection of the laws is construed by the Federal Court as it is by our own state court, to permit reasonable classifications to keep abreast of progress if all unthm the class are treated alike. In Eolden v. Hardy, 169 U. S. 366, L. Ed. 780, it is said: "The 14th Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diver- sities in these respects may exist in two states sepa- rated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other no such right. Each state prescribes its own modes of judicial proceeding. If diversi- ties of laws and judicial proceedings may exist in the several states without violating the equality clause in the 14th Amendment, there is no solid reason why i&here may not be such diversities in dif- ferent parts of the same state. "The same subject was also elaborately discussed by Mr. Justice Matthews in delivering the opinion of this court in Hurtado v. California, 110 U. S. 516, 530 (28, 232, 237). 'This flexibility and capacity for growth and adaption is the peculiar boast and excellence of the common law. * * * The Con- stitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of English law and history; but it was made for an undefined and expanding future, 137 and for a people gathered and to be gathered from many nations and of many tongues. And while we take just pride in the principles and institutions of the common law, we are not to forget that in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not un- known. Due process of law, in spite of the absolu- tism of continental governments, is not alien to that code which survived the Roman Empire as the foundation of modern civilization in Europe, and which has given us that fundamental maxim of dis- tributive justice — suum cuique tribuere. There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age; and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and vari- ous experience of our own situation and system will mould and shape it into new and not less useful forms.' We have seen no reason to doubt the sound- ness of these views." Eolden v. Hardy, 169 IT. S. 366. Reasonable Classification. In Atchison, Topeka & Santa Fe By. Co. v. Mat- thews, 174 U. S. 96 (L. Ed. 909), the Supreme Court said: "The equal protection of the laws which is guar- anteed by the Fourteenth Amendment does not for- 138 bid classification. That has been asserted in the strongest language. Bwbier v. Connolly, 113 U. S. 27 (28 L. Ed. 823). * * * "But neither the amendment — broad and com- prehensive as it is — nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power, to prescribe reg- ulations to promote the health, peace, morals, edu- cation, and good order of the people, and to legis- late so as to increase the industries of the state, de- velop its resources, and add to its wealth and pros- perity. Class legislation, discriminating against some and favoring others, is prohibited, but legis- lation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment." And again: "It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. * * * Indeed, the very idea of classification is that of in- equality so that it goes without saying that the fact of inequality in no manner determines the matter of 'constitutionality." Atchison, Topeka & Santa Fe Ry. Go. v. Mat- thews, 174 IT. S. 96 (L. Ed. 909-915). So here the responsibilities may press more heav- ily upon one than another, but this design will be equality, and if all of a proper class or all in pro- portion to their accidents are treated alike that will be enough. 139 In Mallet v. North Carolina, 181 U. S. 589 (L. Ed. 1015), the court had under consideration a law of North Carolina providing that the state in a criminal case might have the allowance of an ap- peal from one district and not from another that was held not a denial of the equal protection of the laws, guaranteed by the Fourteenth Amendment. Validity of Minmg Inspection Law. In Consolidated Coal Co. v. Illinois, 185 U. S. 203, L. Ed. 872, the court had under consideration an act of 1897 in the state of Illinois, with respect to coal mines, which act exempted all mines from the operation of the act if they did not have to exceed five employees; it also confided to the in- spectors some discretion as to the number of times that each mine should be inspected, and the regu- lation of charges therefor. It was held that the act was not repugnant to the Fourteenth Amendment, the court saying at page ^75: "The regulation of mines and miners, their hours of labor, and the precautions that shall be taken to insure their safety, health, and comfort, are so ob- viously within the police power of the several states that no citation of authorities is necessary to vin- dicate the general principle. * * * It is true that the act of 1897 amended the former law of 1895, by limiting its application to coal mines, 'where more than five men are employed at any one time.' This is a species of classification which the 140 legislature is at liberty to adopt, provided it be not wholly arbitrary or unreasonable. * * * Again on page 877: "In enacting a law with regard to the inspection of mines, we see no objection, in case the legislature finds it impracticable to classify the mines for the purposes of inspection, to commit that power to a body of experts who are not only experienced in the operation of mines, but are acquainted with the de- tails necessary to be known to make a reasonable classification, although it may affect the amount of fees to be paid by the mine owners." Consolidated Coal Co. et al, v. Illinois, 185 U. S. 203, L. Ed. 873. This is a binding precedent for reasonable classi- fication and inspection. State Police Power Allows Classification on Rea- sonable Basis. Of course, as all other states, Minnesota has a police power, and it applies to the question of em- ployer and employe in dangerous employments. Our court has held valid a law requiring street railways to make enclosure to secure motormen from weather exposures. In State v. Dow S. Smith, 58 Minn. 35, in deciding this question, it said : "It has never been questioned that the police power of the state extends to regulating the use of dangerous machinery, with a view to protecting, not only others, but those who are employed to use it; and if it be conceded, as it must be, that the 141 state may intervene by regulations in such a case, we do not see why it may not in such a case as this. "The act is within the police power. "When a subject is within that power, the ex- tent to which it shall be exercised, and the regu- lations to effect the desired end, are generally whol- ly in the discretion of the legislature. "The objection that this is class legislation is based on the fact that the act is confined to street cars propelled by cable, steam, or electricity, and does not include street cars drawn by mules and horses, or carriages or wagons; and it is assumed that here is an attempt at purely arbitrary classi- fication for the purpose of the act. "But, where an evil exists in a variety of cases, it is a sufficient ground for classification in legislat- ing, so as to include some and exclude others, that in the former the evil can be remedied, while in the latter it cannot be. This power has likewise been extended to protect fish and animals. State v. Mrozinski, 59 Minn. 465 ; State v. Roeman, 58 Minn. 393; State v. Tower Lumber Co., 100 Minn. 38, and to the regulation of foods, State v. Horgan, 35 Minn. 183, and oil in- spection, Willis v. Standard Oil Co., 50 Minn. 290 ; State ex rel City of Minneapolis v. Great Northern Railway, 98 Minn. 380-389, State ex rel City of Du- luth) v. Northern Pacific Railway Company, 98 Minn. 429-432. In Dobbins v. Los Angeles, 195 U. S. 223 (169), the court again, speaking of these various matters, with respect to municipal legislation, requotes from 142 H olden v. Hardy, to show that it is simply a ques- tion of whether the statute has been adopted in the exercise of a reasonable discretion, or whether the action is a mere excuse for an unjust discrimina- tion or the oppression or spoliation of a particular class, saying: "The state has undoubtedly the power, by appro- priate legislation, to protect the public morals, the public health, and the public safety; but if, by their necessary operation, its regulations looking to eith- er of those ends amount to a denial to persons with- in its jurisdiction of the equal protection of the laws they must be deemed unconstitutional and void." Ddbbms v. Los Angeles, 195 U. S. 223 (L. Ed. 169-175). This means all within the same conditions and classes. It may be taken then as the settled law of the Supreme Court, and, we think, equally so of the states, that a law necessary as a police regulation to protect employes, may be based on classification of the dangers of the employment, if the classifica- tions are based upon reasonable and not arbitrary grounds, and apply equally to all of the same class similarly situated. There is no difficulty about complying with this principle. 143 Due Process of Law. The due process of law provided by the Fifth Amendment applies, of course, to the Federal Gov- ernment, but as contained in the 14th Amendment it is a prohibition upon the states. This is a mat- ter then that must be understood. The Constitution of Minnesota provides: "Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property or character" (Const., Art. I, Sec. 8). We must not overlook the fact that this, too, is one of several constitutional provisions the intention of which was to secure each person within the state from injuries inflicted by others, and to grant him redress in case of such injuries. In short, the liability is enacted for a prevention, the redress is given for compensation. We must alike remember that this is the only provision, aside from the general scheme of government, which ex- pressly secures, by specific enactment, person, prop- erty, or character through remedial laws. It is the outgrowth of many centuries, it had a well defined meaning at the time of the adoption of this consti- tution ; it meant to "secure" — not "grant" — redress for injuries, as the law then viewed them, and into that law we must look for its interpretation. Von Hoist, Const. Law, 288-9. Under the Roman Law there were three legal maxims; "to live honestly, to hurt no one, to give every one his due." Bandars Justinian (Hammond), L. I., Title I., Parag. 3, p. 68. 144 Among the delicts was what Romans called in- juria. When specifically used this term had refer- ence to an injury done to the person or reputation, as in the case of an assault or slander. The Prae- torian law softened the rigor of the XII Tables, and allowed the injured person to recover such compensation as the nature of the case required. The injured party could bring either a civil or crim- inal action against the offender, and not only was the perpetrator of the injury liable, but any per- son who counseled him was also liable, and the damages might be aggravated by peculiar circum- stances. McKenzie ibed, 261-2. In England a portion of Magna Charta was : "No freeman shall be taken or imprisoned, or disseized or out-lawed or banished, or anyways de- stroyed, nor will we pass upon him, nor will we send upon him, unless by the lawful judgment of his peers or by the law of the land. We will sell to no man, we will not deny to any man either jus- tice or right." Hurd Habeas Corpus, 65-73. Spooner, in his essays on trial, makes an histori- cal and critical examination of the chapter and says that its legal import is: "No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or be outlawed, or exiled, or in any man- ner destroyed (harmed), nor will we (the king) proceed against him, nor send any one against him, by force or arms, unless according to (that is in ex- 145 edition of) the sentence of his peers, and (or 'or' as the case may require) the common law of Eng- land (as it was at the time of Magna Charta in 1215)." Hurd on Habeas Corpus, 73. Spanner's Trial by Jury, 49. In 1660, Pufendorf said: "In the series of 'absolute duties, or such as ob- liged men antecedently to any Human Institution, this seems with justice to challenge the first and noblest place, THAT NO MAN HURT ANOTHER, AND THAT IN CASE OF ANY HURT OR DAM- AGE DONE BY HIM, HE FAIL NOT TO MAKE REPARATION." Pufendorf, Law of Nature and Nations, Bk III, Oh. 1. After specifying that the "judicial power of the United States shall be vested in one Supreme Court," etc., the Constitution of the United States proceeds to say: "The judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under this authority," etc. Const, of U. 8., Art. Ill, Sec. 1 and 2. The Ordinance of 1787 provided that the inhabi- tants of the Northwest Territory should be entitled to "judicial proceedings according to the course of the common law." See Ordinance of 1787, Art. II. The various sections of Art. I, of the Constitution of Wisconsin, during the time it included Minneso- 146 ta, secured the equality of citizens, liberty of the press, right of redress through the courts for in- juries or wrongs committed. The Organic Act of Minnesota provided that the inhabitants should be possessed of the same rights as they were given un- der the Laws of Wisconsin at that time ; the sched- ule of the Minnesota Constitution provided for a continuance of those rights during the period of transformation; the Constitution of Minnesota in- cluded the same provisions; they are the funda- mental law of the state today. The constitutions of almost all the states have provision for remedies of the law and whether they say "in laws," "according to law of land," "due course of law," "all courts shall be open, and every man for an injury done him in his lands, goods, per- son or reputation, shall have remedy by due course of law," it matters not ; they mean the same. They are collected in Hough's American Constitutions, Vol. II. Due Process of Lam m the States. The bill of rights is similar in the different states, generally speaking. It is provided by Section 7 of Article 1 of the Constitution of Minnesota that no person shall be "Deprived of life, liberty or property without due process of law." In State v. Billings, 55 Minn. 467, the court said : "Due process of law requires an orderly proceed- ing adopted to the nature of the case, in which the 147 citizen has an opportunity to be heard, and to de- fend, enforce, and protect his rights. A hearing, or an opportunity to be heard, is absolutely essential." In the case of State ex rel Barber Asphalt Pav- ing Company v. District Court of St. Louis Coun- ty, 90 Minn. 457, the conditions were peculiar. The company had been awarded a contract for paving a portion of a street in Duluth. The contract pro- vided for percentage payments as the work pro- gressed. The work progressed until practically fin- ished; the company made request of the board of public works to make an estimate, which it did. It certified the estimate and the council passed a reso- lution ordering the payment and directing a draft to be drawn on the city treasurer. The company asked the city clerk to give an order on the treas- urer and he refused. Duluth had a charter provision allowing appeals to be taken to the court in such cases by the tax The respective quotations will show the views taken by the court, 90 Minn. 461-4 : "We have no doubt that the provision of the charter requiring the presentation of all claims to the city council for adjustment and allowance was an appropriate subject for charter supervision, and from that it would seem to follow logically that it was also proper to continue the subject, and provide the manner in which the determination of the city council allowing or disallowing a claim might be removed to the district court for judicial investiga- tion and determination; and we hold without fur- 148 ther remark that it was within the power of the framers to embody in the charter the provisions un- der consideration. "It is contended that the provisions of the char- ter are invalid, because they do not constitute due process of law. The charter provision was taken almost wholly from G. 'S. 1894, 644, providing for similar appeals from the board of county commis- sioners, which has been in force in this state for forty years or more, and the validity of which has never been questioned, so far as our information extends. On the contrary, the statute has been re- sorted to on numerous occasions, both by persons having claims against counties and by the county attorney at the instance of taxpayers. Thomas v. County Commrs. Scott Co., 15 Minn. 254 (324) ; Kroshus v. County of Houston, 46 Minn. 162, 48 N. W. 770 ; Davis v. County of Le Sueur, 37 Minn. 491, 35 N. W. 364. The statute is a very servicable one, and provides an orderly method of settling claims and demands against counties without the necessity of the formal commencement of an action in court, and the provision allowing the appeal at the in- stance of taxpayers was intended as a safeguard; and to assist in the protection of the public funds. Claims against such bodies must be presented to their administrative officers, and by them passed upon, from whose decision an appeal to the district court is provided, where, without formality of pro- cedure, the matter is brought to trial and speedy determination." 149 "This answers every purpose, and. is, 'due process of law.' "The administrative officers, the board of county commissioners or the city council, in passing upon and allowing or disallowing the claim®, act quasi judicially. They determine the legal rights of the parties, and there is no force to the suggestion that the charter is invalid because it provides for an ap- peal from a non-judicial to a judicial tribunal." In speaking of a decision of the U. S. Land De- partment in Lamson v. Coffin, 102 Minn. 493-500, our court said : "That was the only tribunal qualified or with jur- isdiction to determine the existence of the facts essential to the alleged right, and its conclusion therein precludes further inquiry by the courts." In Murray v. Hdboken, etc., Co., 18 How. 280 (L. Ed. 372), the Supreme Court also said: "It is true, also, that even in a suit between pri- vate persons to try a question of private right, the action of the executive power upon a matter com- mitted to its determination by the constitution and laws is conclusive." It would seem that the state can require claims against it to be presented first to another depart- ment than the courts; if a system were worked out by which the claims could be assumed by the state this could be done here, probably. We do not rec- ommend that system ; we prefer to adopt the prin- ciple upon which it rests. 150 But the Federal Constitution does not control mere forms of procedure in or regulate the practice of state courts. In Maxwell v. Dow, 176 U. S. 581 (L. Ed. 597), it is said: "A state cannot deprive a person of his property ■without due process of law, but this does not nec- essarily imply that all trials in the state courts, af- fecting the property of persons must be by jury. This requirement of the constitution is met if the trial is had according to the settled course of ju- dicial proceedings. * * * "Due process of law is process due according to the law of the land. This process in the states is regulated by the law of the states. Our power over that law is only to determine whether it is in con- flict with the supreme law of the land — that is to say, with the constitution and laws of the United States made in pursuance thereof — or with any treaty made under the authority of the United States." Maxwell v. Dow, 176 U. S. 581 (L. Ed. 597). It is thus sure that due process may be had ac- cording to the regular state practice without a jury trial. In a recent case, in speaking of procedure, the court said: 151 "It does not follow, however, that a procedure settled in English law at the time of the emigra- tion, and brought to this country and practiced by our ancestors, is an essential element of due pro- cess of law. If that were so, the procedure of the first half of the 17th century would be fastened upon the American jurisprudence like a straight jacket, only to be unloosed by constitutional amend- ment." Twining v. New Jersey, 211 U. S. 78. And: "'That (said Mr. Justice Matthews, in the same case, p. 529) would be to deny every quality of the law but its age and to render it incapable of prog- ress or improvement.' " Twining v. New Jersey, 211 U. S. 78. It then proceeds to call attention to the fact that among the notable decisions are those denying jury trial, both in criminal and civil cases. The opinion also says: "It is no longer open to contention that the due process of law clause of the 14th Amendment to the Constitution of the United States does not control mere forms of procedure in state courts, or regulate practice therein." Twining v. N. J., 211 U. S. 78 (L. Ed. 97). The court proceeds to follow that view with a holding that there must be sufficient caution to guard him against the arbitrary action of govern- ment. It makes quotations from its own opinions in the past to the same effect. 152 The effect then of this portion of this amendment is to deny to the state the right of taking away the citizens' property without due process of law and it must give the party reasonable notice and a fair hearing before decision. This, however, relates to process or procedure only, as the words would indi- cate; not to the right to take property if a consti- tutional law so provides upon complying with such process. The state's procedure is for the states so long as their acts are not arbitrary. There must be some time and place and a court to adjudicate the law of liability if desired. Maxwell v. Dow, supra,. Twinmg v. N. J., 211 U. S. 78. Trial by Jury in States. It may be said that the right of trial by jury is abridged. To this there are two answers : 1. The amount being fixed quite definitely by law, and arbitration first required, the right of trial by jury could still exist as it does now if the agree- ment were not reached. 2. If the right of action thus created should be held to be one not in existence at the time of the adoption of the constitutional provision, then that provision would not apply. In Board of County Com. v. Morrison, 22 Minn. 178, the court said : "Whether the tax payer is entitled to a jury trial in these proceedings is an important question, as it affects both the power of the state to collect its rev- 153 enues by a speedy and. convenient mode, and the se- curity of the citizen against oppression and illegal acts. It is claimed that because legal rights are in- volved and are to be determined, it is a proceeding at law, and that in all proceedings at law the right to a trial by jury is guaranteed by the constitu- tion." Board of County Com. v. Morrison, 22 Minn. 178-9. And after citing many special proceedings such as those in Eminent Domain, Assessment of Prop- erty, Appointing Guardians, Summary Convictions for Petty Offences, etc., the court said : "The general principle upon which these cases were decided was that the several constitutions in- tended only to preserve the right of trial by jury in those cases where it existed at the adoption of the respective constitutions, and that rights of persons or property coming in question in those contro- versies in which, before that time, the right was not recognized do not come within the meaning of the constitutional guaranties." See Minor v. Happersett, 21 Wall. 162. At the time of the adoption of our constitution no such risk as would be here involved — outside of fault — was a legal right. This would not be a com- mon law liability but a statutory one. The com- mon law liabilities for future may be repealed. Martin v. Pittsburg, etc., Co., 203 U. S. 284 (L. Ed. 184). This has been partially done every time the lia- bility has been lessened or changed. 154 This sort of Law Would not take Private Prop- erty for Public Use by Reason of Four Principles. (a) Under our social compact the private own- er has no ownership except that which is subject to reasonable control such as this would be. (b) The private individual has no right to com- plain of the taking of only so much property as is an aid to government operation by reason of the last above principle Mugler v. Kansas, 123 U. S. 623-665. Gibson v. United States, 166 U. S. 269, Adair v. United States, 208 U. S. 161. (c) It is not taking private property without due process of law within the constitutional pro- visions to require dangerous employments to be liable for the risks of the injury without any par- ticular fault in the special transactions. Freund's Police Power, Sec. 634. Chicago R. I. & P. v. Eaton, 183 U. S. 589. (d) Or to control private relations of employers and employes when it endangers public safety. Harbison v. Knoxville Iron Co., 183 U. S. 18. There is no Vested RigJvt Contrary to Incidental Injuries by Governmental Necessities. In the case of Gibson v. United States, 166 U. S. 269, L. Ed. 995, the Supreme Court said: "The 5th amendment to the Constitution of the United States provides that private property shall 155 'not be taken for public use without just compen- sation.' " 'But acts done in the proper exercise of govern- mental powers and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a tak- ing within the meaning of the constitutional pro- vision. They do not entitle the owner of such prop- erty to compensation from the state or its agents, or give him any right of action. This is supported by an immense weight of authority. Those who are curious to see the decisions will find them collected in Cooley on Constitutional Limitations, p. 542 and notes." In the case of Vanderburgh v. City of Minneapo- lis, 98 Minn. 329, the court said : "And it cannot be doubted that where private rights are invaded by legislative authority in the interests of the general public, there is a taking or damaging for public use, within the meaning of the constitution, entitling the injured party to compen- sation, except perhaps in cases where an exercise of the police power is involved." In the case of State v. Board of County Commis- sioners, 98 Minn. 89, on page 94, the court said : "A further doubt also arises whether the county or its officers could be held responsible in damages for work done for the public good in its government- al capacity under the police power or power of eminent domain (Lien v. Board of Co. Commrs. of Norman County, 80 Minn. 58, 82 N. W. 1094) and 156 whether such damages be not merely incidental to an authorized act." In Adair v. United States, 208 U. S. 161, it is said: "This court has said that 'in every well ordered society, charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may, at times, under the pressure of great dangers, be subjected to such re- straint, to be enforced by reasonable regulations, as the safety of the general public may demand." Adair v. U. S., 208 U. S. 161 (L. Ed. 436). If the police power could not make reasonable regulations the state could not exist. Indeed it would seem that substantially all the direct benefits of organized society are based on this limitation of personal rights that the public may benefit. This seems especially true in a gov- ernment based as is ours on the compact theory. In Conn, the court said : "The principle of the common law, that for a lawful, reasonable and careful use of property, the owner cannot be made liable, is not so wrought into the constitution or into the very idea of property that it cannot be departed from by the legislature where protection to persons or to property may re quire it." Orissell v. Housatonic R. R. Co., 54 Conn. 447. Johnson v. City of St. Lou-is, 172 Federal, 40 (8 C. C. A.). This whole question relates to the use of prop- erty; it may be machinery or the right of contract 157 — each equally property — but it is nevertheless, a limitation upon the use. This limitation is based upon the theory that the use is dangerous and the consequences must follow as a legal duty. Judged by the usual rule of following moral obligations with human law this legal duty is a proper one. Judged by the implied condition that law only rec- ognizes the ownership and use of property by vir- tue of the social compact, the owner is not an ab- solute one except in the private sense — his rights are always subservient to the necessary public con- trol. When he enters or adopts the social compact he impliedly so agrees. The Fourteenth Amendment secures the Liberty of Contract between Employer and Employe except when limited by the Police Power; the Exercise of the Police Power rests in the Legislative Depart- ment; the Courts interfere under the Constitution only to prevent Arbitrary power from being exer- cised under cover of the Police Power. The courts recognize that the employer and the employe do not stand on an equality in making their contracts. Narramore v. Cleveland, etc., 96 Fed. 298 (6 0. C. A. Judge Taft) . Holden v. Hardy, 169 U. S. 366. Harbison v. Knoxville Co., 183 U. S. 13. 158 Freedom of Contract is Liberty. This is the great Federal Constitutional question with respect to Wiorkmenfs Compensation Acts. Can we say that employer and employe must stand by reasonable regulations upon this question? In our opinion, Yes. The police power — the public power to protect the interests of humanity for public preservation — is the safety valve here. In Adair v. V. 8., 208 U. S. 161 (L. Ed. 436), Mr. Justice Harlan re-quotes from Lockner v. New York, 198 U. S. 45, as follows: "The general right to make a contract in relation to his business is part of the liberty of the individ- ual protected by the 14th Amendment of the federal constitution." Later on the court says: "Under that provision no state can deprive any person of life, liberty or property without due pro- cess of law. The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right." Adair v. U. 8., 208 U. S. 161 (L. Ed. 436). The court held in that case that the constitu- tion was violated in this respect by an Act of Con- gress interfering with the right to discharge em- ployes from membership in a labor union, because there was no reasonable connection between that union and the commerce clause; but the court was not unanimous even on that. 159 Mr. Justice McKenna and Mr. Justice Holmes wrote dissenting opinions, and contended that it would be for the value of all concerned, and within the powers and principles recognized by that court, to recognize the organization of the laboring-man with respect to interstate commerce; Mr. Justice McKenna saying: "We are dealing with rights exercised in a quasi- public business, and therefore subject to control in the interest of the public." Mr. Justice Holmes said: "But I could not pronounce it unwarranted if Congress should decide that to foster a strong un- ion was for the best interest not only of the men but of the railroads and the country at large." In Gray v. Building Trades Council, 91 Minn. 171-182, our court said : "A person's occupation or calling, by which he earns a livelihood and endeavors to better his con- dition, and to provide for and support himself and those dependent upon him, is property within the meaning of the law, and entitled to protection as such, and as conducted by the merchant, by the cap- italist, by the contractor or laborer, is, aside from the goods, chattels, money, or effects employed and used in connection therewith, property in every sense of the word." 160 Liberty of Contract not Absolute when applied to Employer and Employe in dangerous employments. In Holden v. Hardy, 169 U. S. 366 (L. Ed. 780), the Supreme Court held that the right of contact may be limited by the state police power with re- spect to the hours of labor in underground mines. After a somewhat extended discussion of what is meant by the police power of the state and the decisions resting thereon, and that changes under our system must be made to advance law to meet the changing conditions of society, the court said: "Of course it is impossible to forecast the char- acter or extent of these changes, but in view of the fact that, from the day Magna Charta was signed to the present moment, amendments to the struc- ture of the law have been made with increasing frequency, it is impossible to suppose that they will not continue, and the law be forced to adapt itself to new conditions of society, and, particularly, to the new relations between employers and employes, as they arise. * * * "This right of contract, however, is itself subject to certain limitations which the state may lawfully impose in the exercise of its police powers." In Atchison, etc., By. Co. v. Matthews, 174 U. S. 96 (L. Ed. 909), in discussing a statute of Kansas providing that in fire cases it should be sufficient for a prima facie case to establish that the fire was occasioned by the operation of a railroad, the loss and the damage. The court said : 161 "But neither the amendment — broad and compre- hensive as it is — nor any other amendment was de- signed to interfere with the power of the state, sometimes termed its police power, to prescribe reg- ulations to promote the health, peace, morals, edu- cation and good order of the people, and to legis- late so as to increase the industries of the state, de- velop its resources, and add to its wealth and pros- perity." In the case of Johnson v. Southern Pacific Ry. Co., 196 U. S. 1, it was held that the equipment of cars with automatic couplers might be required by congress. The court through the Chief Justice said : "The primary object of the act was to promote the public welfare by securing the safety of em- ployes and travelers." Johnson v. Southern Pacific Co., 196 U. S. 1 (L. Ed. 369). In Knoxville Iron Co. v. Harbison, 183 U. S. 13, in upholding a law of Tennessee which required persons paying laborers in store orders to redeem the orders if demanded at certain times, the court said : "But it is also true that, inasmuch as the right to contract is not absolute in respect to every mat- ter, but may be subjected to the restraints demand- ed by the safety and welfare of the state and its in- habitants, the police power of the state may, with- in defined limitations, extend over corporations ouf> side of and regardless of the power to amend char- ters. Atchison T. & S. F. R. Co. v. Matthews, 174 162 U. S, 96, L. Ed. 909, 19 Sup. Ot. Rep. 609." With respect to the limitations upon the right of contract, the court said : "It is undoubtedly true, as more than once de- clared by this court, that the general right to con- tract in relation to one's business is part of the lib- erty of the individual, protected by the 14th Amend- ment to the Federal Constitution ; yet it is equally well settled that this liberty is not absolute and extending to all contracts, and that a state may, without conflicting with the provisions of the 14th Amendment, restrict in many respects the indi- vidual's power of contract. Without stopping to discuss at length the extent to which a state may act in this respect, we refer to the following cases in which the question has been considered : Allgey- er v. Louisiana, 165 U. S. 578, L. Ed. 832, 17 Sup. Ot. Rep. 427; Holden v. Hardy, 169 U. S, 366, L. Ed. 780, 18 Sup. Ot. Rep. 383; Lockner v. New York, supra." Muller v. Oregon, 208 U. S. 411 (L. Ed. 551- 555). The majority opinion in the case of Lockner v. New York, 198 U. S. 45, refers to Eolden v. Hardy as one of the cases wherein the court has treated the police powers with liberal construction, yet the Lockner ease although holding against the validity of a law admits the rule to be that both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the state in the exercise of the police powers, saying : "The state, therefore, has power to prevent the 163 individual from making certain kinds of contracts, and in regard to them the Federal Constitution of- fers no protection." The reasonable control of moral conduct, health provisions and bodily protection have always been and must always be above the mere means of prop- erty. Indeed, in the case of Chesholm v. Georgia, speak- ing as a justice of the U. S. Supreme Court, 2 Dial- las, 419-454 : "Let a state be considered as subordinate to the people, but let everything else be subordinate to the state." Indeed in Holden v. Hardy, the court said : "These employments when too long pursued the legislature has judged to be detrimental to the health of the employes, and so long as there are reasonable grounds for believing that this is so, its decision upon this subject cannot be reviewed by the federal courts." At page 57 the court said : "This is not a question of substituting the judg- ment of the court for that of the legislature. If the act be within the power of the state it is valid al- though the judgment of the court might be totally opposed to the enactment of such a law, but the question would still remain. Is it within the po- lice power of the state, and that question must be answered by the court." It is upon this theory that the court is able to protect and preserve this power, and to hold as it did in Muller v. Oregon, 208 U. S. 412, L. Ed. 551, 164 that while the liberty of contract is a property right of the individual : "Yet it is equally well settled that this liberty is not absolute and extending to all contracts, and that a state may without conflicting with the pro- visions of the Fourteenth Amendment restrict in many respects the individual's power of contract." Indeed, fault need not necessarily be the basis of liability under the police power. Chicago v. R. I., etc., By. Co. v. Zernecke, 183 U. S. 582. Knoxville Iron, Co. v. Harbison, 183 U. S. 13. The police power is used to regulate insurance of private property and the control of employ- er and employe. See cases supra. Ins. Co. v. Dagg, 172 IT. S. 55. In the case of State v. Smith, 58 Minn. 35, in re- quiring the 'Street Railway Company to protect its motormen, the court said: "It has never been questioned that the police power of the state extends to regulating the use of dangerous machinery, with a view to protecting, not only others, but those who are employed to use it." No owner of property has the right to claim that a contract previously in existence has been changed in its obligations by reason of the exercise of the police power because the implication of the power always went with that contract as a matter of law. Stone v. Miss., 101 U. S. 814. 165 N. P. By. v. Duluth, 208 IT. S. 581. Beer Co. v. Mass., 97 U. S. 25. The police power can neither be legislated nor contracted away. See case last cited, also Cosmopolitan Club v. Va., 208 U. S. 376. A thief is not immune from restraint by the bill of rights, the sufferer from a contagious disease can- not go unrestrained to pursue his individual happi- ness or liberty ; the murderer cannot go unpunished because his body would be hurt by execution, nor can the owner of dangerous things, he can only claim due process of law. It is true that the thoughtless employer and employe would dis- like to be restrained for the general good but he who suffers from contagious disease is equally free from fault, yet equally dangerous in action. In the in- terest of the public he must be restrained or limited in his liberty and individual rights. The rights of his property are thereby invaded but only to the extent that the state determines necessary in the in- terests of public health. We might drive men to war for the public good; we might restrain them from leaving the state or the government in times of war; the right of habeas corpus may be suspend- ed in time of war ; military systems may be substi- tuted for civil authorities in time of war. All these things are unusual restraints upon individual lib- erty and civil rights but they are done, they are upheld, and necessarily must be so when proper circumstances arise for the protection of the pub- lic good. 166 Such Laws would demand Liberal Construction. This is true as a measure of necessity ; also as a matter of reasonable interpretation to further the general welfare. In Evans-Snider-Buel Co. v. McFadden, 105 Fed. 293 (8 C. C. A.), the court said: "When called upon to resolve questions like the one in hand, the courts have never deemed it nec- essary to close their eyes to the equities of the case, but have frequently permitted their judgments to be influenced by the consideration that that which the legislature has done in the way of disturbing rights acquired under existing laws was morally right, and in accordance with justice and fair deal- ing." In McCullough v. Maryland, 4 Wheaton, 416, in holding that Congress had not exceeded its powers in creating the national bank, Chief Justice Mar- shall said : "Let the end be legitimate; let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitu- tional. * * * But where the law is not pro- hibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative 167 ground. The court disclaims all pretentions to such a power." In Knox v. Lee, 12 Wall, 457, the court said : "It is not to be denied that acts may be adapted to the exercise of lawful power, and appropriate to it, in seasons of exigency, which would be inappro- priate at other times." With an evil as disastrous in totals as was our civil war, with twenty-three of the greatest foreign countries committed to the change; with several states acting through commissions to form scientific legislation on the question ; with a fair, almost ur- gent agitation by substantially all persons who un- derstand the evils and insufficiencies of the present system, it would seem to require a very ignorant and inhuman judge to hold that a law fairly drawn as a compensation act in dangerous employments, should be held an arbitrary, as distinguished from a discreet, legislative act. (For a fuller discussion of constitutionality see Report of Atlantic City Conference, July 29-31, pp. 54-216, article by H. V. Mercer). 168 Remedy. What then is the remedy? We answer : 1. Repeal the common law remedy as to hazard- ous industries. Smith v. Alabama, 124 TJ. S. 465. Martin v. Pittsburg, 203 U. S. 284. Snead v. Central of Georgia Ry. Co., 151 Fed. 608. 2. Enact a simple law defining the dangerous employments, and fixing a certain reasonable lia- bility on condition that the claimant in case of dis- pute will submit his cause to arbitrators before he can sue — .similar to the standard form of fire poli- cies now "hypnotically" required from the com- panies and the insurer. Wild Rice Lumber Co. v. Royal Ins. Co., 99 Minn. 190. 3. Let the amount of damages be finally fixed by the arbitrators, but allow appeal to determine le- gal liability. Hamilton v. The Liverpool & London & Olobe Ins. Co., 136 U. S. 242, 34 L. Ed. 419, and cases therein cited. With such law enacted on a reasonable and equal basis it ought to be supported in the interests of progress, and humanity. 169 The fallacy in the most of our objections lies in the fact that we fail to understand or appreciate the weight which must be given to the power to protect the public interests. The power of general welfare must always remain with the states subject only to reasonable and lawful regulations. A review of the origin and history of our consti- tutional system is sufficient without much reflection to convince the observing mind that our constitu- tional problems here are more imaginary than real. The difficulty lies not with the constitution but in the prejudicial awe with which we approach it. It was made not to rule, but to serve ; to protect, not to prohibit; to secure, not obstruct. It was the result of a revolution in the common law; it intended to prohibit and prevent the evils and hardships then known; to reasonably secure the future. The Anglo-Saxon was a progressive people. The colonists did intend to protect individ- ual rights, but above all, in their government, they wanted liberty— not license. The public was first, after that individuals. The fallacy in the most of our objections lies in the fact that we fail to understand or appreciate the weight which must be given to the power to pro- tect the public interests in all controversies between individuals. This is a power ever present, never lost; it cannot be sold or bartered; all property is held subject to its power of reasonable regulation and control. It is a condition precedent to all con- tracts ; a safety valve for all action ; a supreme fac- 170 tor in all private law. There are other rules with which and to which it must conform but even those rules are blended to protect the public so long as no distinction is made to work unjust and discrimi- nating hardship. The state must be first protected and reasonable latitude is allowed for that protection as based on the equities of the case. We yield to none in our appreciative reverence for the American constitutional system; yet there is a higher and broader patriotism than the one with which that Constitution is often approached. It is a fundamental law — organic, yet reasonable; broad, yet blending; restrictive, yet expansive. And the broader view of it is that private individuals must hold their property and liberty subject to such rea- sonable laws as the public necessity creates. None can know history and not appreciate the exigencies which gave birth to the bill of rights; yet none can know jurisprudence and not under- stand that there is a public right greater and broad- er than individual rights which must have greater and broader power for its protection and use. In- deed, the very fact that bills of rights are deemed necessary at all is based upon the theory that the state would otherwise have power to disregard them. This being true we look to the form of government to see from whence comes the protection for general welfare. What do we find? That certain powers have been delegated to the Federal government, but not the police power within the states. Certain pro- hibitions are delegated to the Federal government 171 to prevent the states from violating certain bills of rights, but even within them it exists except as lim- ited by the provisions above discussed and in the language of the United States Supreme Court : "A state has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation — the au- thority of a state is complete, unqualified and ex- clusive." Equal legal protection can easily be secured in police rights, so can due process of law. Neither confiscation of property nor the destruction of lib- erty follows from reasonable regulations, for the power is ever present and all rights of propety held subject to it. The allegiance granted in consideration for pro- tection implies this regulation. In Minor v. Eappersett, 21 Wallace, 160, the Su- preme Court of the U. S. said : "There cannot be a nation without a people. The very idea of a political community, such as a na- tion is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it al- legiance and is entitled to its protection. Allegi- ance and protection are, in this connection, recipro- cal obligations. The one is a compensation for the other: allegiance for protection and protection for allegiance." (See Hobbes Leviathan, Oh. II, Part III). 172 The Constitution is an instrument for protection of public welfare as well as private rights. In- deed, one of the principal purposes for forming the Federal Constitution as given in the preamble was to "Promote the general welfare." If the government could not preserve the gen- eral welfare, it would be but an instrument for license as distinguished from liberty. The Consti- tution was never intended to prevent, but to secure, government. It was not intended to deprive all men of protection, except the one whose rights are particularly called in question, but rather to leave the scheme of public protection without much sub- stantial alteration so long as operated in good faith and equally; and to protect the individual against arbitrary, unusual and unreasonable restrint. The power to protect this general welfare through the police power is inherent in, and remains with, the states, subject only to equal and reasonable law- ful regulation, and Federal security. To secure individual liberty restraints on public rights are necessary, but to preserve common liber- ty, including individual liberty, restrictions on in- dividual rights are imperative. Construing the constitutions then, in the light of their creation and objects we find nothing prevent- ing this public security, but only that protection necessary for the individual security co-ordinate with the public welfare. Since the first ten Amendments do not apply to state action, and the Fourteenth Amendment does not interfere with reasonable state action through 173 the police power, we find but small limitations in this regard. The state has never given, granted or bartered its police power to any one — it cannot do so. This be- ing true, no person can set up a vested right against the regulation ; none can claim injustice on account of it; no constitutional provision can be construed to prevent it — else that provision, if clear, would ab- rogate this power of the state that must ever stand as the bulwark of constitutional security. Since no individual ever acquires this public right; since no property is based upon it, but all held subject to it, the state does not take property by its exercise. It may be that the power to exer- cise has been dormant; that its exercise seems a taking; but it is in fact but an assumption of <* right always implied and always subject to exercise. It is, therefore, not a damaging to, or taking of, property of the individual — it is the assumption of a right which for failure to claim the individual may have used to his own advantage, yet charged with the knowledge of its true ownership. The present basis of fault is wrong in principle; insufficient in practice. With the experience of the more important for- eign countries committed to the doctrine of the change of basis; with the recognized necessity in a number of states to attempt to make the change; with the present conditions admittedly unsatisfac- tory; with the Supreme Court of the United States 174 committed to uphold laws, making some changes within the police power; and with two of the most noted presidents officially pointing with humiliation to our obsolete system, a third having publicily act- ed upon it; with all other financial risks of the industries rightfully assumed by the employer; with the risk of pain and suffering unavoidably cast up- on the employee ; can anyone doubt the necessity of correcting this condition or the propriety of chang- ing the basis of recovery from that of fault to that of risk of the industry — on a fair limit to both par- ties? With all this, and more history, it is apparent that the movement is based upon reason — not arbi- trary action. It would have been exceedingly easy for many states to have passed laws, if arbitrary laws would have done, but the action of these states as well as the Atlanta City Conference and other subsequent meetings conclude all question of arbi- trary action. It is no movement having the police power as a mere cloak, and no court can ever say — unless it say arbitrarily — 'that the movement was not without consideration or reasonable basis. It is a notable fact that while we have been boast- ing of our elaborate system of American constitu- tional and private law, some of the foreign coun- tries, a few of which like to say that they are un- hampered by constitutional limitations, have been seeking to enact laws to right this evil, and many of them have succeeded along the lines above indi- cated. We were the first in modern times to adopt a sue- 175 cessful written constitution in the sense of a funda- mental law that should under all circumstances be supreme to all other private laws. But from our constitutional system the organic act of Canada, the constitution of Australia, the constitutions of the Central and South American republics, of Mexi- co, of Norway and Sweden, of Prussia, of Italy, and many of the other European countries copied much ; in substance, if not in form, although some of them are theoretically built upon granted power from the Rulers. It would be surprising, if not humiliat- ing now if we should permit those countries to take from us a very large portion of the best of our con- stitution and yet reserve to themselves the right to dispose of evils which we cannot overcome by rea- son of our constitutional limitations. If we understand the facts correctly, there have been in single years recently as high as an average of one man killed or crippled on every 2 1-2 miles of single track railroad in the United States. Count- ing the family at five, you could hang two members of the family on every mile post of every single track railroad for the injuries received directly af- fecting them, in that occupation, in a single year. Indeed, the records of a recent year show approxi- mately 5 1-2 times as many men killed and injured in the peaceful pursuit of railroading as were killed and injured on the Union side in the dangerous oc- cupation of war, at the battle of Gettysburg. Prob- ably one half million men are partial victims of the industries of this county annually. This is greater than all the calamities of the Civil War. It would 176 indeed be a striking and sad commentary on civili- zation if we could not, or would not, legislate to right this wrong in some way that can be found. Now is it an abuse of discretion to say ihat such legislation is necessary in substantially all the coun- tries of Europe? Have all those countries acted arbitrarily upon the question? It has not been the lot of peasantry to be especially favored, unless there be motive for that favor. Neither has it been the lot of labor in this country to exercise unneces- sary special privileges. When the risk of building a railroad was consid- ered too great for private enterprise the government assumed it. When the state had created a system of railroads too powerful for private negotiations it created a railroad and warehouse commission to counter-bal- ance. When the government found that private citizens and its courts could not promptly handle the inter- state commerce problem it created a commission to simplyfy the process. When the states have found private enterprise unable to hold agricultural shows they have creat- ed public funds for general good. When they have found private education inade- quate to meet public demands they have created great educational systems and institutions; but on- ly recently have they awakened to the great fact that provision for laborers, mechanics and artisans is as necessary to the people and as just an obliga- tion of the state as are all these things. 177 The legislation is not only desirable, but impera- tive and may be made constitutional. 178 III. Practicability. For the main features we suggest a code in sub- stantially the following form : "An Act to Establish a Workers' 'Compensa- tion Code." The title "Workmens' Compensation Act," has acquired a sort of meaning, but "workers' " instead of "workmen®' " is proper because of the breadth of the subject, and applicable because it simplifies the wording of the law, and recognizes no distinction in age or sex. Code Defined. In Johnson v. Harrison, 47 Minn. 575, in sustain- ing the Probate code of Minnesota as against the provision in the Constitution, "no law shall embrace more than one subject, which shall be expressed in the title," our court, through Judge Mitchell, said: "The word 'code,' as now generally used, and as obviously used in this title means 'a system of law,' — 'a systematic and complete body of law.' "The term 'subject,' as used in the constitution, is to be given a broad and extended meaning, so as to allow the legislature full scope to include in one act all matters having a logical or natural connec- tion. To constitute duplicity of subject, an act must embrace two or more dissimilar and discord- ant subjects that by no fair intendment can be con- 179 sidered as having any legitimate connection with or relation to each other. All that is necessary is that the act should embrace some one general sub- ject; and by this is meant, merely, that all matters treated of should fall under some one general idea, be so connected with or related to each other, either logically or in popular understanding, as to be parts of, or germane to, one general subject. The large number of related or cognate matters often treated of under some comprehensive title, such as 'Crimi- nal Code,' 'Penal Code,' 'Code of Civil Procedure,' 'Private Corporations,' 'Railroad Corporations,' and the like, are familiar illustrations of what may be legitimately included in one act. Any construc- tion of this provision of the constitution that would interfere with the very commendable policy of in- corporating the entire body of statutory law upon one general subject in a single act, instead of di- viding it into a number of separate acts, would not only be contrary to its spirit, but also seriously em- barrassing to honest legislation. A well considered case on this question is that of Central of Georgia B. Co. v. Btate, reported in : 104 Georgia, 831-841. 31 S. E. 531. 42 L. B. A. 518. The code of Georgia was attacked in that case upon the theory that it was unconstitutional under a similar provision, but the court said: "There is quite a difference between a code of laws for a state and a compilation in revised form of its statutes. The code is broader in its scope, 180 and more comprehensive in its purposes. Its gen- eral object is to embody as near as practicable all the law of a state, from whatever source derived. When properly adopted by the law-making power of a. state, it has the same effect as one general act of the legislature containing all the provisions em- braced in the volume that is thus adopted. Our legislative annals afford many instances of the adop- tion, by one comprehensive enactment, of large mas- ses of law, which were never read on three several days in both branches of the legislature. See also Ex parte Thomas, 113 Ala. 4, et seq." This decision favors legislation by reference. We call attention to the above decision to show that if the legislatures of the various states should seek to adopt by reference a table of statistics or other general outline by which the liability could be ascertained, that might be done without incum- bering the law with the details. It is also necessary to show the extent to which the courts will go to uphold a system of law as against these constitu- tional provisions. In speaking of the objects of this Constitutional provision the court of Minneso- ta, in the above case, said : "Its object, therefore, was not to prevent compre- hensive, but surreptitious, legislation." And again : "No one need be misled by a title to an act which declares that its purpose is to adopt a certain code or system of law ; nor is there anything in such an act to occasion any alarm that it would pass con- trary to the wishes of the people by virtue of im- 181 proper combinations among members of the legis- lature. What the Constitution looks to is unity of purpose." The court gave a very thorough discussion of these questions. It appended a note saying that it had requested of, and received from, the Honorable Jos. E. Lamar, one of the codifier® of the law, an able brief, which had been of great assistance in their work. It would seem that no more authority is necessary to establish the principle that a code in its correct sense means a system of law and that when a system of law is so entitled as to indicate that it means to be a complete system on the sub- ject, nothing further is needed either to prevent fraud or to sufficiently indicate by the title the na- ture of the legislation included in such code. Any- one' hunting a criminal code would not expect the title of the code to be an index to, or a definition of all the crimes in the body of the act, but would ex- pect appropriate sub-headings. We have not examined the constitutions of the various states to ascertain how many have similar provisions. It is enough for the purposes of the Min- nesota Commissioners that the provision is found in their constitution. As a title is needed to meet the purposes of the states which do and those which do not have such provision, and as no other single title would be appropriate, this would seem to be suffi- cient reason for adopting this title, — uniformity be- ing especially desirable. The Code averages the old liability, regulates the speculation and creates certainties. It is advan- 182 tageous to the employe first; to the employer next and to the state least. In the interests of the employe, the state and the employer it must be protected. It is essential, therefore, that the Courts view the system with that degree of liber- ality consistent with breadth of view and judicial foresight. The Courts should exercise the judgment of the state, tempered by her conscience, grounded upon her law and enforced by her executive. It is not for them to say whether the state wisely choos- es, through its legislative department to create such laws. The policy is for the legislature and not the court. In this the legislature stands above the Courts, and with this judgment the Court has no right to interfere except in so far as the people themselves with their sovereign power above the leg- islature have limited it through the fundamental law. It is, therefore, the business of the court with respect to such laws, to say that if the legislature acted on its judgment, not arbitrarily, then it is not for the courts to interfere. The judgment of the legislature is binding, but if the courts do find that the legislature under cover of complying with this power, has in fact defrauded the state by enacting laws which have no foundation in judgment and on- ly intended to operate as arbitrary control, then and only then, has the court the power or the right to interfere. In the case of Eolden v. Hardy, 169 U. S. 365 (L. Ed. 780), the second subdivision of the syllabus- reads: "The protection of the health and morals, as well as the lives of citizens is within the police 183 power of the state legislature." It is said on page T89 : "Of course, it is impossible to forecast the char- acter or extent of these changes, but in view of the fact that, from the day Magna Charta was signed to the present moment, amendments to the structure of the law have been made with increasing frequen- cy, it is impossible to suppose that they will not continue, and the law be forced to adapt itself to new conditions of society, and, particularly, to the new relations between employers and employees, as they arise." After viewing a number of decisions upon the police power and estimating that it is within the power of the legislature to judge as to those mat- ters, the opinion then uses this language: "These employments when too long pursued, the legisla- ture has judged to be detrimental to the health of the employees and so long as there are reasonable grounds for believing that this is so, this decision upon this subject cannot be reviewed by the Federal Courts." In Lockner v. New York, 198 U. S. 45 (L. Ed. 937), the court said: "This is not a question of substituting the judgment of the court for that of the legislature. If the act be within the power of the state, it is valid, although the judgment of the court might be opposed to the enactment of such law." In Muller v. Oregon, 208 U. S. 411 (L. Ed. 551), Mr. Justice Brewer said: "Constitutional questions, it is true, are not set- tled by even a consensus of present public opinion, 184 for it is the peculiar value of a written constitution that it places in unchanging form limitations upon legislative action and thus gives a permanence and stability to popular government which otherwise would be lacking. At the same time when a question of fact is debated and debatable, and the extent to which a special constitutional limitation goes is af- fected by the truth in respect to that fact, a wide- spread and long continued belief concerning it is worthy of consideration. We take judicial cogniz- ance of all matters of general knowledge." The Muller case gives us hope that the Supreme Court would, in the natural course of events, look at the present demands throughout the country upon this question in determining whether or not the leg- islature acted upon an unreasonable basis. In oth- er words, when it comes to the point that practical- ly all of the foreign countries of any note have passed legislation of this character and that all of the bigger corporations throughout the country rep resenting the men of the advanced commercial and humanitarian thought have seen fit to take up the subject and treat upon it from the standpoint of both humanity and business; when the greater men of the country who have turned their attention that way, whether representing labor or capital, are practically unanimous upon the demand; when al- most a quarter of the states have appointed commis- sions to look into the matter with a view and hope of passing humanitarian legislation upon the ques- tion ; when the public interest is burdened with one of its greatest expenses from the financial stand- 185 point, one of its most wasteful and deplorable bur- dens from the standpoint of waste and injury to humanity; when the burdens have reached the point where they are far in extent annually of the injur- ies which came to human beings in the Civil War of the sixties, it would be a very peculiarly consti- tuted court that would not consider, as Mr. Justice Brewer says they do consider, the trend of public opinion, the overwhelming necessity, and that the legislature had grounds for the exercise of its judg- ment. "Be it enacted by the Legislature of the State of : Section 1. Dangerous employment defined. That every employer in the State of conducting an employment in which there here- after occurs bodily injuries to any of the em- ployees arising out of, and in the course of, such employment, is for the purposes of this act hereby denned to be conducting a dan- gerous employment, at the time of such occur- rence and thereafter, and consequently subject to the provisions of this act and entitled to the benefits thereof." The definition of dangerous employment here given is studiously meant to be a broad one. It is not dependent upon classification of industries on the basis of manufacture, mining, railroading, or other segregated employments. Its purpose is to so define dangerous employment that every employ- ment which is in fact dangerous will be so defined exactly in proportion to the dangers that actually occur. Under this definition, an employment which 186 has but one accident, is a dangerous employment. If it has two accidents, or a hundred accidents, it is for each of those accidents a dangerous employ- ment. Being a dangerous employment for each accident which it has, and not dangerous unless it has those accidents, the definition is especially equitable in two aspects. It induces those operating the same sort of employment to so keep their accidents down, that they will not be held to be operating a dangerous employment, or be penalized for such operation un- less and until it is demonstrated that in that em- ployment they have accidents. It is of common knowledge that different men running precisely the same machinery in plants similarly situated, may by various schemes of negligence and carelessness in their work or by want of repairs, or failure to guard, or in many other ways increase the dangers incident to such employment. He who is able to preserve humanity by protection ought not to be penalized except in so far as his work is injurious. And he who is not cautious in the protection of the human machinery under his care needs the stimulus of higher penalty in proportion to the accidents which he has. This definition covers every employment in the state in which accidents happen. It may seem in a measure unfair to place this upon every industry, but upon second thought, nothing can be better than to place exactly the same regulations against every industry that has accidents, and make it in propor- tion to the accidents, so that the unit of determin- 187 ing liability shall be the basis of accidents occurring in the employment and arising out of it rather than the number, and that the unit of recovery will be that to which each individual is entitled as distin- guished from that which would require a person having many accidents in the employment to pay for each of those and refuse the same privilege to those who happen to be injured in other employ- ment where accidents equally as serious do occur, but do not occur as frequently. We do not define the term which we use here as bodily injuries, under the word "accident," because the term accident does not have a uniform meaning throughout the United States, and might be misin- terpreted by some court as a matter of construc- tion. According to the use of the term "accident" in the English Compensation Act, it is defined by their present decisions to be used in the ordinary sense of the word. Although this was not at first the rule that the lower courts of England applied to the word "accident." The House of Lords in reaching the definition now used, cited the case of United States Mutual Accident Association v. Bar- ry, 131 U. S. 100, where a policy of insurance had provided for the payment of indemnity for bodily injuries effected through external violence and ac- cidental means. In the lower court in the Barry case, the court had charged the jury that the word "accidental" was used in the ordinary popular sense of meaning; "happening by chance; unexpectedly taking place, not according to the usual course of things, and not as expected." The Supreme Court 188 of the United States reviewed some cases and sus- tained the theory that the injury, one received by a physician jumping from a platform four or five feet high to the ground, when two other physicians jumped off with him at the same time, was, an accident, citing with approval Martin v. Trav- eler's Insurance Co., 1 Foster and Finn, 505, which allowed a recovery in a case where a person had a similar policy and injured his spine by lift- ing a heavy burden in the course of his business. The objection was made that the injury was not ac- cidental, but the plaintiff was permitted to recover. The following authorities sustain the proposition that the term accident should be used in the sense ordinarily and popularly applied to it: Fenton v. Thorly Co., 72 Law Journal, K. B. D., 787. Ruegg's Employers Liability & Workmen's Compensation, 7th Ed. 250. Notwithstanding these authorities, able as they are, we find that a variation of the definitions of ac- cident leaves that word an extremely dangerous one to use. For instance, the term accident has been restricted in such peculiar ways, that in some jurisdictions it means accidents in the sense defined above by the Federal Court, but in others it has been defined as a word of limited meaning to the effect that an accident is an occurrence to which hu- man fault does not contribute. (See Aetna, Life Ins. Co. v. Bandecker, 86 Fed. 282 (8 .€. A.) ; Robert v. Wall, 4th Ed. Employers' Liability) . If, therefore, we should put the word "accident" into 189 this section, there would be room for misinterpreta- tion or misconstruction. The word would mean one thing in one state and another thing in anoth- er state and the certainty which we hope to avoid by this act, or rather which we hope to make by this act would be avoided by the very language which ought to seem simple to laymen. And with a view of conclusively removing as far as possible the feasibility at least, if not the possibility of liti- gation, we have eliminated the word accident and instead have used the term, "in which hereafter oc- curs bodily injuries," instead of saying in which hereafter occurs "accidents," or "accidents result- ing in injuries." The term "employes" needs no special definition. The words arising out of the course of employment have been sufficiently defined by the British act, as have the words in the course of such employment, that it would seem there is little difficulty in deter- mining what the meaning of those terms is, if the court cares to follow the British act. If not, then it seems there ought not to be much difficulty in determining the practical facts and the underly- ing principles. It seems under these circumstances that in the interest of breadth and simplicity, the act is proper in this form. The intention is to make it sufficiently broad to cover every employment in which there occurs injuries arising out of the course of this employment. From the standpoint of policy this will be re- sented as taxes are resented in the first instance by some persons in every vocation because the act is 190 not limited to vocations in which, they do not hap- pen to be themselves engaged, but, considering the purposes of such legislation, these objections ought not, and, we believe, will not, prevail. (a) The primary and essential feature which all humanity ought to seek, is the lessening of the dan- gers in our present employments. The dangers to the present employes throughout the United States are beyond the comprehension or even the slightest suspicion of the average citizen. The injuries and the deaths from the' commercial industries of this country, if accurately estimated, would probably amount to as many every year as the Civil War did for the whole term. Incomprehensible and shocking as this may seem, yet the statistics, so far as they are obtainable, tend to bear it out. If this is not a sufficient cause for the state to prevent ac- cidents, then no sufficient reason could exist and be based upon humanitarian grounds. The economic loss is but an incident, yet if reckoned properly, is probably the greatest loss of any single economic loss in the country. Its remote consequences upon either past or future prosperity cannot be either told or reasonably estimated. It is a great cal- amity in the nation and every liberty loving citizen, irrespective of his humanitarian feelings, ought to be willing to lessen the accidents and help bear the burdens that are thrust upon society by his de- mands for products as he would help bear the cost of war in time of a national calamity. Under these circumstances, it is certainly true that it is neces- sary that something be done. Those who bear the 191 physical pain in most instances bear much. Those who do not bear the physical pain, but who make it necessary by their demands that it exist, should be willing to stand their share, and a good share at that, of the economic loss. (b) It is a matter of economy with the em- ployer. You may say that this has proven so in some of the older countries. If it were possible for a single business institution of sufficient organization, abili- ty and foresight to control all the industries throughout the United States and be responsible for the wrecks of society, one of its first acts would be to lessen the accidents and make definite provis- ion for those who were afterwards left unfortunate. Indeed, many of the greater corporations through- out the United States are foreseeing this as a pol- icy of economy. But, like other great subjects, many need legislation to require their action. Fault not Necessarily the Basis of Liability Here. In Freund's Police Power, Section 634, the au- thor says : "If the rule of absolute liability is held to be unconstitutional, it must be on the ground that justice and equality forbid that a person be required to make good the loss of another, unless some fault or culpability can be imputed to him. This is the position taken by the courts of Alabama, Montana, Wyoming and Utah. But while the common law does, require fault of some kind as a general prin- 192 ciple, it has always recognized some exceptions (trespass of cattle, fire, etc.) and it cannot be said that the rules of the common law represent the only and final conclusions of justice. The principle that inevitable loss should be borne not by the person on whom it may happen to fall, but by the person who profits by the dangerous business to which the loss is incident, embodies a very intelligible idea of justice, and which seems to be in accord with mod- ern social sentiment. Moreover, the rule of absolute liability is established in our law in the case of fires caused by locomotives and has been sanctioned by the United States Supreme Court (165 U. S. 180). It also underlies the rule of respondeat su- perior, since the employer cannot relieve himself for liability for acts done by the servant within the scope of his employment, by proof of the greatest possible care in the selection of the servant. Logic and consistency therefore, demand that liability ir- respective of negligence should not be denounced as unconstitutional. The required element of causa- tion may readily be found in the voluntary employ- ment of dangerous instruments or agencies." The case of Chicago, Rock Island & Pacific Rail- way Company v. Zernecke, 183 U. S. 582, L. Ed. 339, was an action brought by the administratrix of the estate of Zernecke, deceased, to recover dam- ages, under a statute of the State of Nebraska, for the death of Zernecke, caused by the derailment of the train of defendant upon which Zernecke was a passenger. The statute in question provided as follows: 193 "Every railroad company, as aforesaid, shall be liable for all damages inflicted upon the person of passengers, while being transported over its road, except in cases where the injury done arises from the criminal negligence of the person injured, or when the injury complained of shall be the viola- tion of some express rule or regulation of said road actually brought to his or her notice." Neb. Comp. Laws, 838. The defendant in its answer denied the plain- tiff's allegation of negligence, and alleged that the derailment was caused by some person unknown to the company, and not in its employment or under its control who wilfully, maliciously and felonious- ly removed and displaced from the track certain spikes, nuts, angle-bars, etc., and otherwise tore up and destroyed the track. The defendant upon the trial offered witnesses to sustain the allegations of its answer. This testimony upon objection by the plaintiff was rejected. In this case the court said : "The specific contention is that the company is deprived of its defense, and not only declared guilty of negligence and wrong doing without a hearing, but adjudged to suffer without wrong doing, indeed even for the crimes of others, which the company could not have forseen or have prevented. "Our jurisprudence affords examples of legal lia- bility without fault, and the deprivation of proper- ty without fault being attributable to its owner." 194 This case has been followed in Chicago, R. I. & P. v. Eaton, 183 U. S. 589, and in Chicago, Burlington & Qumcy B. R. v. Wolfe, 187 U. S. 638. Minnesota Constitution. The bill of rights is similar in the different states, generally speaking. It is provided by Section 7 of Article 1 of the Con- stitution of Minnesota that no person shall be "Deprived of life, liberty or property without due process of law." Street railways may be required under this pow- er to furnish employees cages that are warm for winter work. See State v. Billmgs, 55 Minn. 467. Section 2. Liability of employers. That every employer shall be liable to pay compen- sation to every such employe so injured, or in case of his death, to his legal representatives, as hereinafter denned and apportioned for all bodily injuries received by such employe aris- ing out of, and in the course of, such employ- ment in this state disabling such employe from regular services in such employment for more than ten days, according to the schedule of rates contained in Section three of this act, on the condition precedent only, that, in case of dispute as to the amount to be paid for such in- juries, or the failure or refusal to agree upon or to pay the same, such employe or the legal representatives thereof shall substantially com- ply with the provisions of this act. Liability of employers. The scheme of this sec- tion is that every employer operating a dangerous 195 employment shall be liable according to the provis- ions of the act. The liability being conditioned up- on the fact that the employe shall submit his claim to arbitration in case of dispute somewhat on the theory of the fire insurance policies having the ar- bitration clauses which the laws, like those of Min- nesota, provide. It may be well to investigate the question, or rather to meditate upon the question here, as to whether or not when the employe con- tributes this conditional clause ought not to be re- ciprocal. This needs to be considered from the standpoint of the remote consequences, of such an amendment. It will be noticed that this clause says, "disabling such employe from regular services in such employment for more than ten days," the purpose of that being that trivial accidents will not be considered, but only those of sufficient import ance to interrupt the earning capacity to a reason- able extent. This will avoid many evil features that would otherwise operate to the detriment of the system. Among them the following: (a) If every fellow who mashed his finger suffi- ciently to make it difficult to labor for a day or for three days, or five days should be entitled to recov- er under such act, the tendency might be to lay off for a few days as often as possible, and it would be difficult to tell for a few days, in some cases, wheth- er a man was justified. (b) By putting the term at some reasonable number of days ahead, the petty accidents that are so trivial that the expense of investigation would cost more than the injury itself would be eliminat- 196 ed. The total number to be reckoned and paid would be likewise reduced. (c) The total cost would be very much increas- ed by reason of the great numbers that might have a mashed finger, a swollen toe, or many other trivial ailments that might be traceable to the course of employment, and yet would make it no more diffi- cult for the human being to operate his functions relatively than many of the ailments that come to us all in the regular course of business from colds or exposure or trivial ailments. (d) The laborers themselves in investigating such trivial accidents would not have the same re- lative opportunities of ascertaining the merits that they would if the accidents were those that ran a reasonable length of time so that they could get their lines of information started. The liability being based upon the condition precedent, that the person who seeks the liability shall comply with the system, is of itself reasonable. Such a system could not exist unless the employer could have reasonable notice to protect himself against the numerous cases that might arise under circumstances where the liability would be practi- cally absolute. The essence of the system for the employe is, certainty, implicity, rapidity. There- fore, when certainty exists, the employer is entitled to know when the question arises so that he may have the matter properly investigated. Under the- certainty that would exist, it would be necessary for him to know, and to know as outlined in this Code that it was intended that claim should be made 197 and under the theory of rapidity it is valuable to him and it is essential to the employe, if the sys- tem is to reasonably operate, that notice he reason- ably given, and that the controversy, if any, should be reasonably and speedily determined. The fact that it depends upon a condition precedent, or up- on conditions precedent, is of no more importance with respect to the merits of this system than un- der the common law system now prevalent in this state. A system of procedure, a scheme of reme- dies longer drawn out, more complex, more expen- sive, and more uncertain exists at the present. It is to make the uncertain, certain ; the slow, quick ; the complex, simple remedies, that this Code is to be adopted. And as the liability is to be certain against the employer, it is but fair and just that the employe shall be required to prove his case in the simple method here required. Section 3. Compensation allowed. The compensation herein and hereby allowed, if es- tablished as herein provided, having arisen out of and in the course of such dangerous employ- ment within this state, shall be on the follow- ing basis : (a) For immediate death or for death ac- cruing within five years as a result of such in- juries, or for injuries causing total incapacity for that service for five years or more, 60% of the amount of wages the injured was receiving at the time of the accident for a period of five years, provided, such payment shall not con- tinue longer than to aggregate $3,000. (b) For total or partial disability for less than five years, 60% of the wages the injured was receiving at the time of the injury so long 198 as there is complete disability for that service and that proportion of the said percentage which the depleted earning capacity for that service bears to the total disability when the injury is only partial or after it becomes only partial. (c) In addition to the foregoing payments, if the injured loses both feet or both hands, or one foot and one hand, or both eyes, or one eye and one foot or one hand, he shall receive, dur- ing the full period of five years, 40% of the wages which he was receiving at the time of such accident; or if he loses one foot, one hand, or one eye, the additional compensation there- for shall be 15% of his said wages; or if he be otherwise maimed or disfigured, then, for such maiming or disfigurement, during the time it shall continue not to exceed five years, he shall receive therefor such proportion of 40% as such maiming or disfigurement bears in deplet- ed ability in the employment to the relative loss of the members specified herein ; provided, that in no case shall all of the payments re- ceived herein exceed in any month the whole wages earned when the injury occurs, nor shall the said 40% when all received, or any portion thereof, and the said 60% when all received, or any portion thereof, continue longer than to make all sums aggregate $5,000. Under section three, sub-division (a), it is eas- ily seen that it is the purpose to fix the value of to- tal incapacity or death on the basis of 60% of the wages for a period of five years, if the disability con- tinues during that length of time. The object in this is quite evident. If we place it at 50% as many countries do, for six years it would be the same amount of money. If we place it at 100% for three years, it would be the same amount of money, 199 but if the same amount were allowed for a period of three years, the family would have had no rea- son to economize; the three years would soon pass and then their aid would end. Placed upon a basis of 60% for five years, they must then appreciate that the earning capacity is decreasing, that they must begin to seek some other means of livelihood and by the end of five years a self-supporting fam- ily, rather than a pauperized one, would remain. This argument applies with more strength too as against lump sum settlements. Such settlements would, in most instances, occasion the placing of money in the hands of people unable, for want of experience or foresight to preserve it. Through shrewdness, fake schemes, occasionally through dis- sipation, not infrequently through incompetence, and often through the reckless feeling of superficial riches that fund would disappear. Sub-division (b) is meant, as is evident, to allow upon the same theory, where the disability contin- ues for a period less than five years. Sub-division (c) intends to increase this 60% for the loss of members of the body, but to limit the total to full wages for five years, not to exceed $5,000.00. % Section 4. Repeal of other liabilities. The right to compensation and the remedy there- for, as herein specified, shall be in lieu of all other causes of action for such injuries and awards upon which they are based as to all per- sons covered by this act, whether formerly au- thorized or allowed by, or as the result of, eith- 200 er state statute or common law, and no other compensation, right of action, damages or lia- bility either for such injuries or for any result thereof, either in favor of those covered by this act or against such employer based on state law, shall hereafter be allowed for such injuries to any persons or for any of the injuries cover- ed by this act so long as this law shall remain in force, unless, and then only to the extent, that this law shall be specifically amended. Section 4 is intended to repeal all other liabili- ties, for all matters covered by this act. This only goes to further the scheme of carrying out this sys- tem under a Code. It is not unreasonable to apply this remedy in lieu of all others; in fact, no other scheme could reasonably be followed, as we view it. It is our opinion from observation of the English law, or rather English laws, that the weakness of that system lies in the fact that, instead of an in- direct liability, there are three distinct liabilities, elective to the injured: the common law liability; the Liability's Act; the Compensation Act. This leaves all of the uncertainties of the old system ; it adds certainties of the new. It leaves all of the risks of the old system ; it adds direct liabilities of the new. It leaves all the waste of the old system possible ; it requires protection against all the cer- tainties of the new. It does not tend to lessen cost in theory ; it does not tend to make reasonable reg- ulations under the extreme cases of the old system. It does not simplify complications between employ- er and employe to further the mutual advantages, or lessen the burdens of the state. We cannot con- 201 scientiously believe that a dual or triple system under those circumstances is proper. Section 5. Conditions precedent to right of recovery. That as a condition precedent to such right to compensation, such employe or the legal representatives thereof, as the case may be, shall within ten days after knowledge of such injury, unless there be valid excuse for delay and then immediately after such excuse is removed, cause a written notice thereof in substantially the form designated in para- graph — (form to be provided) of this act, to be served upon the said employer by leaving a copy thereof addressed to the employer with the person in charge of such employee while he was so working, if that person is still in said employ, or with some superior agent, officer, or person in charge of said business at any office thereof within this state in the same way that a summons can now be served or by serving upon the defendant in any other way that a summons could be served; and in case of a dispute between the employe and the said em- ployer, or in case of the failure of such em- ployer and employe to agree upon such claim or in case of failure or refusal of such employer to pay, such employe shall submit his claim for compensation hereunder both as to the na- ture of the injuries and the amount to compen- sate therefor under this act, to a board of three arbitrators, as hereinafter specified, in substan- tial compliance with the form contained in Section 8 hereof. Under section five it is made a condition prece- dent to the right of recovery that the employe or the legal representatives shall give the notice to the employer and in case of dispute submit their claim for compensation, both as to the nature of the injuries and the amount of compensation therefor 202 to the Board of Arbitrators. And it is intended by the scheme of this law that the Board's decision be final upon those two things, giving the right of ap- peal to the Courts only to show fraud of arbitrat- ors or want of jurisdiction or legal liability. The idea is that the litigation at the present time largely centers around two questions of fact : first, Is there a liability under the present law, as a question of fact; second, If the liability does exist, what is the extent of the injury. It is of the essence of this law that the liability be certain ; that it be easy to de- termine the facts and that when the facts are deter- mined the amount of liability be easily determined. It is not left to the wandering scheme or the errors of an unrestrained and hypnotized jury; neith- er is it controlled by a court. It is left to the judgment of the arbitrators with a reasonably cer- tain basis fixed upon which their judgment can be measured fairly, viz., according to the earning car pacity and the nature of the injuries. They find the earning capacity and the nature of the injuries, then find the amount of damages by reason of those things; both sides have the right to appeal to the Court to ascertain whether or not these come within the law and whether they have been classified under the spirit of the law. Objection will, of course, be raised on the part of some that this is an attempt to dispense with jury trials. It is — for the pur- poses of these cases — but the purpose is not to de- prive the employe of the advantage of the jury trial nor to secure the employer behind the pecu- liar attitude of the judge as to what is the common 203 law; but rather to define the rights so that there is little room for dispute, and then place it in the hands of able and practical men who have not the right or the power to vary the decision greatly up or down, as now may be done. The object is to so fix the scheme and the system that every fellow is reasonably secure and can recover a fair compen- sation according to his injuries and his earning ca- pacity if he is injured in employment and the in- juries arise out of the course of that employment — this a jury cannot always do. Section 6. Board of arbitration and awards. There is hereby created a Board of Arbitration and Awards, known as "Board of Awards" with jurisdiction throughout the state of to arbitrate the questions arising here- under and make awards consistent herewith, which is now and shall remain subdivided into districts with the same numbers and co-ordi- nate with the judicial districts of this state as they now are and may hereafter be changed, which board shall consist of three members from each judicial district, which members shall be non-partisan in polities, appointed by , and hold their offices dur- ing a period of years; except for fraud, or want of jurisdiction the findings and awards made herein shall be final and conclu- sive as to the nature of the injuries and the amount of compensation. 204 The simplest remedy, already well justified for property insurance, is to fix a definite liability by law for hazardous industries on condition that the amount of da/mages be submitted to arbitration — repeal the common law. Arbitration of insurance problems like this might be required by the state m furtherance of its po- lice power. This is a risk ; it is really an insurance problem and, as such must be treated. This does not mean that prevention of accidents, could not be otherwise lessened. But it does mean that a® an insurance problem it may be and necessarily must be treated as an insurance problem. As such the law would be the same. The field is quite well laid out; the constitutionality well determined. As insurance it comes within the police power. Under that power the form of contract covering the dangers may be regulated — the remedy simplified. In Minnesota we have a standard form of fire in- surance policy which requires (Rev. Stat. Minn. 1905, Sec. 1640) : 1640. Standard Policy. — No fire company shall issue on property in this state any policy other than the standard form herein set forth, the blanks for which may be filled in print or writing, and no con- dition, stipulation, or term, other than those there- in provided for, whether as to jurisdiction, limita- tion, magistrate, certificate, or otherwise, shall be valid if inserted in any such policy, except as fol- lows: (then follows certain exceptions). 205 In Wild Bice L. Co. v. Royal Ins. Co., 99 Minn. 190-192, the court said: "A glance at the history of the standard form of policy makes it very clear that the legislature of this state intended to deprive fire insurance com- panies of the right to add to or change the terms and conditions of the prescribed form. * * * "The conclusion is inevitable that the legislature intended to deprive the parties of the right to make insurance contracts in any form except as prescrib- ed by the statute. * * * "The prescribed form with the changes thus au- thorized is the only form of fire insurance contract authorized by the laws of the state." Wild Bice L, Co. v. Boyal Ins. Co., 99 Minn. 190-93-95. In State v. Beardsley, 88 Minn. 20-25, it is said : "It has been held that the insurance code applies to foreign, mutual, unincorporated associations, as well as those properly incorporated, and that neith- er can do business in this state without a license. Seanums v. Christian Brothers Mill Co., 66 Minn. 205, 68 N. W. 1065. The supervisory provisions of the insurance code are a legitimate exercise of the police powers of the state, and there is no discrim- ination in favor of our own citizens." State v. Beardsley, 88 Minn. 20-25. Why could not any dangerous employment giv- ing rise to the necessity of exercising police power, be required to make a standard form of contract with a similar clause? It is only another kind of insurance. 206 If such contract can be required as a condition of performing that dangerous business and the con- tract specified by the state, then the state could just as well say that the r'ghts exist in every contract of employment and the liabilities flow therefrom by virtue of the law without contract. Arbitration as a Condition Precedent to Suit. The Minnesota standard form of fire policy pro- vides : "In case of loss, except in case of total loss on buildings, under this policy, and a failure of the par- ties to agree as to the amount of loss, it is mutually agreed that the amount of such loss shall be re- ferred to three disinterested men, the company and the insured each choosing one out of three persons to be named by the other, and the third being se- lected by the two so chosen. The award in writing by a majority of the referees shall be conclusive and final upon the parties as to the amount of loss or damage, and such reference, unless waived by the parties, shall be a condition precedent to any right of action, in law or equity, to recover for such loss; but no person shall be chosen or act as referee, against the objection of either party, who has acted in a like capacity within four months. "No suit or action against the company for the recovery of any claim by virtue of this policy shall be sustained in any court of law or equity in this state, unless commenced within two years from the time the loss occurred." E. L. Minn. 1905, Section 1640. 207 In Schu/fer v. Bockford Insurance Co., 77 Minn. 291, it is said: "Most of the authorities cited by counsel are merely to the effect that an appraisal of the amount of the loss, if not waived, is a condition precedent to the right to bring an action to recover for the loss. Nobody disputes that proposition." Like total loss by fire, death might be so regarded here. The employe could be relieved of certain things where his loss was total. Provision that oth- ers could make his proofs could be added. Arbi- tration by a regular state tribunal eould be provid- ed as a condition to suit, and the award filed as a basis for a judgment. A law leaving the general question of liability to be determined and simply providing a reasonable method of estimating and ascertaining the amount of the loss is unquestionably valid. Viney v. Bignold, L. R. 20 Q. B. D. 172. Collins v. Locke, 4 App. Cas. 674. Scott v. Avery, 5 H. L. Cas. 811 on page 847. In Pres't, etc. D. & H. Canal Co. v. Pa. Coal Co., 50 N. Y. 250, it is said: "The distinction between the two classes of cases is marked and well defined. In one class the parties undertake by an independent covenant or agree- ment to provide for an adjustment and settlement of all disputes and differences by arbitration, to the exclusion of the courts, and in the other they merely, by the same agreement which creates the 208 liability and gives the right, qualify the right by providing that before a right of action shall accrue certain facts shall be determined or amounts and values ascertained, and this is made a condition precedent either in terms or by necesisary implica- tion." In Wolff v. Liverpool L. & G. Ins. Co., 50 N. J. L. 453, the court said : "But the present case, plainly, stands outside of that class, for here the stipulation to refer, instead of being independent of the promise to pay the loss, is attended with the further stipulation, that until such appraisal, such payment shall not be due. Such a provision qualifies, and consequently incorporates itself with the general promise to pay the loss. It is clear, beyond all possibility of controversy, that the agreement between the assured and the company was, that if they could not agree on the amount of the loss, the sum recoverable should, if an arbitra- tion were requested, be the amount found by the award. Such an agreement is both legal and rea- sonable, and it is not perceived that any authority exists, which holds a contrary doctrine." In Hall v. Norwalk Fire Ins. Company, 57 Conn. 105, it is said : "If parties make an arbitration agreement which has the effect to oust the courts of jurisdiction, it is held to be invalid, (although more recent decisions question whether this doctrine is sound in princi- ple,) but it has always been held both by the courts of England and of the United States, that arbitra- tions to settle particular questions which are aux- 209 iliary to the jurisdiction of courts, such as the amount of damages, or the amount of the loss by fire under policies of insurance, are binding in law, and indeed highly favored by courts." In Reed v. Washington Insurance Co., 138 Mass. 572, the court said : "There is no doubt that an appraisal of value, or an award of the amount of damages, can be made a condition precedent to a right of action. In such a case the agreement is not to refer a cause of action, but that a cause of action shall arise upon the ap- praisal or award, which is preliminary to, and in aid and a condition of, the right of action." In Hamilton v. The Liverpool & London & Globe Insurance Co., 136 U. S. 242, 34 L. Ed. 419, it is said: "The appraisal when requested in writing by either party is distinctly made a condition prece- dent to the payment of any loss, and to the mainte- nance of any action. "Such a stipulation, not ousting the jurisdiction of the courts, but leaving the general question of lia- bility to be judicially determined, and simply pro- viding a reasonable method of estimating and as- certaining the amount of the loss, is unquestionably valid, according to the uniform current of author- ity in England and in this country. Scott v. Avery, 5 H. L. C&ses, 811; Viney v. Bignold, L. R. 20 Q. B. Div. 172; Delaware & H. Canal Co. v. Pennsylvania Coal Co. 50 N. Y. 250 ; Reed v. Washington Fire & M. Ins. Co., 138 Mass. 572-6; Wolff v. Liverpool & L. & G. Ins. Co., 50 N. J. L. 453; Hall v. Norwalk F. 210 Ins. Co., 57 Conn. 105, 114. This might be done here. The injured would be entitled to appear before the arbitrators and submit evidence of his cause. Redvoer v. N. Y. Ins. Co., 92 Minn. 306. The arbitrators would be disinterested. Produce Refrigerator Co. v. Ins. Co., 91 Minn. 210. The arbitrators would sit in a body and be gov- erned by the rules of common law arbitrators mak- ing their acts quasi judicial but without so many technicalities as in a law suit. See cases, supra. Christianson v. Norwich Union Fire Ins. Co., 84 Minn. 526-530. In the last case it is said : "The board of referees provided for under the standard policy is a quasi-court subject to the prin- ciples governing common law arbitration. Such board should sit in a body, and receive evidence offered by the respective parties submitting the same to the usual tests of cross examination. While its individual members are prohibited from private- ly collecting evidence from different sources, a rea- sonable latitude is allowed them in the examina- tion of the premises, remnants of goods, and causes of the fire, for the purpose of better understanding and weighing the evidence on the principal question before them, viz., what is the just damage to the property involved? But, while a certain liberality is permissible in acquainting themselves with the circumstances surrounding the fire without the me- 211 dium of witnesses, such board is not selected for the purpose of seeking evidence secretly and determin- ing the amount of the loss by reason of such person- al knowledge. See authorities cited in 2 Am. & Eng. Eve., 641-655. This court has practically stated the rule in Momess v. Germcm Am&ricwn, Ins. Co., 50 Minn. 341, 52 N. W. 932. The referees must constitute a body of disinterested men, whose busi- ness it is to proceed in a judicial and impartial man- ner to ascertain the facts in controversy." Indeed, the last session of the Minnesota legisla- ture (Chap. 167, G. L. 1909) provided for health and accident policies; it also created our commis- sion to investigate this question. Section 7. (The law shall provide for com- pensation, expenses and secretary, and prob- ably that the Clerk of Courts act as Clerk and make annual report to Commissioner of La- bor). Section 8. Remedy. (a) Every person claiming the benefits of compensation under this act, may issue to the employer from whom he claims the same a no- tice of claim in substantially the following form : First : You are hereby notified that has this day filed the original of this notice of claim against you with the clerk of the Board of Awards in Dis- trict No and that you are required to answer the same with a copy served' upon the undersigned within ten days. Second : Said was in your employ as a at on or about the day of 19.... 212 and received an injury of the supposed gener- al nature following: by reason of the following accident (describe it) and that such injury arose in and out of the course of said employment and has lasted more than ten days and it is claimed that you are liable to pay compensation for % of the wages which were $ per at the time of such injury, and for % for maiming and crippling. (b) Answer. The answer shall 1. Admit or deny the employment. 2. Admit or deny that an injury was receiv- ed at the time and place. 3. Admit or deny that the injury, if any, was in the course of employment and that it arose out of the course of employment. 4. Set up the injury claimed if different from the injured's claim. 5. Admit or deny or correct the amount of wages. 6. Give notice of any special claim to be urged to defeat compensation. (c) Reply. The reply shall so far as possi- ble, admit or deny the specific statements of the answer which contradict or bar the complaint. (d) Hearing. As soon as the reply is filed with proof of service the clerk shall set such claim for hearing in its order at the earliest date possible and notify both parties by mail, thereof. Section 9. Award. The Board of Awards shall make its award upon a full hearing, by both parties held after notice and shall consid- ed the whole record and may visit the premises if within its district and make such awards as it shall decide to be consistent with the spirit and powers of this act, and in the following form: 1. Title. 213 2. We find in the above case that the in- jured received injuries arising in and growing out of the course of such employment when he was receiving as wages the sum of $ per payable 3. That the injuries appear now to be and are as follows : 4. That for disability the compensation to be paid is hereby found and awarded against the employer of at % of sucn wages payable to the following persons in the respective proportions for and as said wages were paid and (if injuriesi uncertain) this proceed- ing is hereby adjourned to the day of for further considera- tion. Section 10. How risk may be ms-^eA. That any such employer, or any associpi t»*i of em- ployers, may keep the risks createtfv^f this law fully covered by insurance, in so/ j^nt associa- tions, or insurance companies aplpfoved by the insurance department of this state, for policies covering the full liability under this law, and thereby relieve themselves from any further re- sponsibility with respect to paying such com- pensation, and if any such employer or employ- ers shall so insure such risks they shall be en- titled to take and keep from the wages of their laborers, on a pro rata basis of the wages,