Borgnis v. Falk Co.

147 Wis. 327 | Wis. | 1911

Lead Opinion

Winslow, O. J.

We are not certainly advised as to the exact ground on which the decision below was reached, but we assume that it was on the theory that the law in question was a valid law; that it was retrospective in its effect; and that if the defendant elected to become subject to the act the plaintiffs would be compelled to breach their existing contracts or submit to the terms of the act and thus lose valuable rights; and hence that equity might and should restrain their employer from electing to come under the law until their existing contracts had expired.

It seems to be true that this action might very well be disposed of without considering the question of the validity of the act in question. Ordinarily under such circumstances that course would be the proper one to pursue, for the question of the constitutionality of a statute passed by the legislature is not-one to be lightly taken up, and generally such a question will not be decided unless it be necessary to decide it in order to dispose of the case.- There are circumstances here present, however, which seem to call very loudly for immediate consideration of the question of the validity of the act in question, if under any view of the case it can be considered as involved. The legislature, in response to a public sentiment which cannot be mistaken, has passed a law which attempts to solve certain very pressing problems which have arisen out of the; changed industrial conditions of our time. It has endeavored by this law to provide a way by which employer and employed may, if they so choose, escape entirely from that very trquble- ■ some and economically absurd luxury known as personal in-. jury litigation, and resort to a system by which every employee not guilty of wilful misconduct may receive at once a , reasonable recompense for injuries .accidentally received in ;1 his employment under certain fixed rules, without a lawsuit and without friction.

A considerable number of employers have accepted the terms of the act, but unquestionably many are waiting until the question of the constitutionality of the act be authoritatively settled by this court. Uor is this attitude either blameworthy or surprising. If an employer elects to accept the act and proceeds to pay out the sums which it requires for a year or more, and then the act should be declared unconstitutional, it might well be that he would have paid out considerable sums which under the former system he would not be required to pay at all, because he was not negligent, and that he would also be subject to suits to recover additional sums by those who, without contributory negligence, had suffered injury and had received compensation under the law. The situation is-unquestionably one of much doubt and uncertainty among the' great industries of the state, and it must remain such until this court has spoken. Many employers of labor who have not accepted the law have taken that course, not because they have chosen definitely to decline the terms of the law, but because they do not know whether they will be protected if they accept and act under it. Such a condition of uncertainty ought not to be allowed to exist if it can be removed. This court cannot properly decide questions which are not legitimately involved in bona, fide lawsuits,* but it may properly decide all questions which are so involved, even though it be not absolutely essential to the result that all should be decided. The validity of the statute in question is a matter which may be legitimately considered in the decision of this case. If the statute be unconstitutional and void, then it is certain that the plaintiffs have no cause of action, because an election to accept the terms of a void statute could harm no one. Impressed with this view of our duty under the circumstances, we advanced the present case upon the calendar, and invited argument upon the main question as to the constitutionality of the statute, not only from the Attorney General on behalf of the state, but from any attorney interested in the question. In pursuance of this invitation the Attorney General and the Industrial Commission filed briefs, and oral argument was made by the Deputy Attorney General. The case has been fully presented, therefore, both by brief and argument, and we are now to consider whether there be any solid foundation for the attack made upon tbe law. In undertaking this task it will be necessary first to set forth in some detail its fundamental provisions.

It adds thirty-two new sections to the Statutes, the first-eight of which sections are as follows:

“Section 2394 — 1. In any action to recover damages for a personal injury sustained within this state by an employee while engaged in the line of his duty as such, or for death resulting from personal injury so sustained, in which recovery is sought upon the ground of want of ordinary care of the employer, or of any officer, agent, or servant of the employer, it shall not be a defense:

“1. That the employee either expressly or impliedly assumed the risk of the hazard complained of.

“2. When such employer has at the time of the accident in a common* employment four or more employees, that the injury or death was caused in whole or in part by the want of ordinary care of a fellow-servant.

“Any employer who has elected to pay compensation as hereinafter provided shall not be subject to the provisions of' this section 2394: — 1.

“Section 2394 — 2. No contract, rule, or regulation, shall exempt the employer from any of the provisions of the preceding section of this act.

“Section 239’4 — 3. Except as regards employees working in shops or offices of a railroad company, who are within the provisions of subsection 9 of section 1816 of the statutes, a» amended by chapter 254 of the Laws of 1907, the term ‘employer’ as used in the two preceding sections of this act shall not include any railroad company as defined in subsection 7 of said section 1816 as amended, said section 1816 and amend-atory acts being continued in force unaffected, except as aforesaid, by the preceding sections of this act.

“Section 2394 — 4. Liability for the compensation hereinafter provided for, in lieu of any other liability whatsoever, shall exist against an employer for any personal injury accidentally sustained by his employee, and for his death, if the-injury shall proximately cause death, in those cases where the-following conditions of compensation concur:

“1. Where, at tbe time of tbe accident, both tbe employer and employee are subject to tbe provisions of this act according to tbe succeeding sections hereof.

“2. Where, at the time of tbe accident, tbe employee is performing service growing out of and incidental to bis employment.

“3. Where tbe injury is proximately caused by accident, and is not so caused by wilful misconduct.

“And where such conditions of compensation'exist for any personal injury or death, tbe right to tbe recovery of such compensation pursuant to tbe provisions of this act, and acts amendatory thereof, shall be tbe exclusive remedy against tbe employer for such injury or death; in all other cases tbe liability of tbe employer shall be tbe same as if this and tbe succeeding sections of this act bad not been passed, but shall be subject to tbe provisions of tbe preceding sections of this act.

“Section 2394 — 5. Tbe following shall constitute employers subject to tbe provisions of this act within tbe meaning of tbe preceding section:

“1. Tbe state, and each county, city, town, village, and school district therein.

“2. Every person, firm, and private corporation (including any public service corporation), who has any person in service under any contract of hire, express or implied, oral or written, and who, at or prior to tbe time of tbe accident to tbe employee for which compensation under this act may be claimed, shall, in tbe manner provided in tbe next section, have elected to become subject to tbe provisions of this act, and who shall not, prior to such accident, have effected a withdrawal of such election, in tbe manner provided in tbe next section.

“Section 2394 — 6. Such election on tbe part of tbe employer shall be made by filing with tbe industrial accident board, hereinafter provided for, a written statement to tbe effect that be accepts tbe provisions of this act, tbe filing of which statement shall operate, within tbe meaning of section 2394 — 5 of this act, to subject such employer to tbe provisions of this act and all acts amendatory thereof for tbe term of one year from tbe date of tbe filing of such statement, and thereafter, without further act on bis part, for successive terms of one year each, unless such employer shall, at least sixty days prior to tbe expiration of such first or any succeeding year, file in the office of said board a notice in writing to the effect that he desires to withdraw his election to be subject to the provisions of the act.

“Section 2394 — 1. The term ‘employee’ as used in section 2394 — 4 of this act shall be construed to mean:

“1. Every person in the service of the state, or of any county, city, town, village, or school district therein, under any appointment, or contract of hire, express or implied, oral or written, except any official of the state, or of any county, city, town, village, or school district therein, provided that one, employed by a contractor, who has contracted with a county, city, town, village, school district, or the state, through its representatives, shall not be considered an employee of the state, county, city, town, village, or school district which made the contract.

“2. Every person in the service of another under any contract of hire, express or implied, oral, or -written, including aliens, and also including minors who are legally permitted to work under the laws of the state (who, for the purposes of the next section of this act, shall be considered the same and shall have the same power of contracting as adult employees), but not including any person whose employment is but casual or is not in the usual course of the trade, business, profession, or occupation of his employer.

“Section 2394 — 8. Any employee as defined in subsection 1 of the preceding section shall be subject to the provisions of this act and of any act amendatory thereof. Any employee as defined in subsection 2 of the preceding section shall be deemed to have accepted and shall, within the meaning of section 2394 — 4 of this act, be subject to the provisions of this act and of any act amendatory thereof, if, at the time of the accident upon which liability is claimed:

“1. The employer charged with such liability is subject to the provisions of this act, whether the employee has actual notice thereof or not; and

“2. Such employee shall not, at the time of entering into his contract of hire, express or implied, with such employer, have given to his employer notice in writing that he elects not to be subject to the provisions of this act; or, in the event that such contract of hire was made in advance of such employer becoming subject to tbe provisions of tbe act, sncb employee shall bave given to bis employer notice in writing tbat he ■elects to be subject to sncb provisions, or without giving either of such notices, shall bave remained in the service of such employer for thirty days after the employer has filed with said board an election to be subject to the terms of this act.”

Secs. 2394 — 9 and 2394 — 10 contain schedules fixing the ■amounts to be paid by way of compensation in case of disability or death where liability exists under the act, define and •classify dependents, and lay down rules for determining the weekly and annual earnings of the injured or deceased employee. Sec. 2394 — 11 requires the giving of a notice in writing within thirty days after the accident as a condition precedent to the recovery of compensation under the act. ■See. 2394 — 12 requires that the injured party shall submit to examination by a physician upon request of the employer, or when required by the Industrial Accident Board, and provides a penalty for refusal so to do. Secs. 2394 — 13 and 2394 — 14 create an Industrial Accident Board of five members, and define generally the methods of procedure of such board. The next seven sections are as follows:

“Section 2394 — 15. Any dispute or controversy concerning compensation under this act, including any in which the state may be a party, shall be submitted to said industrial accident board in the manner and with the effect provided in this act. Every compromise of any claim for compensation under this act shall be subject to be reviewed by, and set aside, modified, or confirmed by the board upon application made within one year from the time of such compromise.

“Section 2394 — 16. Upon the filing with the board by any party in interest of an application in writing stating the general nature of any claim as to which any dispute or controversy may have arisen, it shall fix a time for the hearing thereof, which shall not be more than forty days after the fib'-ng of such application. The board shall cause notice of such hearing, embracing a general statement of such claim, to be given to each party interested, by service of such notice on Trim ner-sonally or by mailing a copy thereof to -him at bis last known postoffice address at least ten days before suck hearing. Such hearing may be adjourned from time to time in the discretion of the board, and hearings may be held at such places as the board shall designate. Either party shall have the right to be present at any hearing, in person or by attorney, or any other agent, and to present such testimony as may be pertinent to the ■controversy before the board; but the board may, with or without notice to either party, cause testimony to be taken, or an inspection of the premises where the injury occurred to be had, or the time books and pay-roll of the employer to be examined by any member of the board or any examiner appointed by it, and may from time to time direct any employee claiming compensation to be examined by a regular physician; the testimony so taken, and the results of any such inspection •or examination, to be reported to the board for its consideration upon final hearing. The board, or any member thereof, •or any examiner appointed thereby, shall have power and authority to issue subpoenas, to compel the attendance of witnesses or parties, and the production of books, papers, or records, and to administer oaths. Obedience to such subpoenas shall be enforced by the circuit court of any county.

“Section 2394 — 17. After final hearing by said board, it •shall make and file (1) its findings upon all the facts involved in the controversy, and (2) its award, which shall state its determination as to the rights of the parties. Pending the hearing and determination of any controversy before it, the' board shall have power to order the payment of such, or any part, of the compensation, which is or may fall due, as to which the party from whom the same is claimed does not deny liability in good faith within ten days after the giving of notice of hearing provided for in the preceding section; and if the same shall not be paid as required by such order, the facts with respect to the liability therefor, and the determination ■of the board as to the rights of the parties, shall be embraced in, and constitute a part of, its finding and award; and the board shall have the power to include in its award, as a penalty for noncompliance with any such order, not exceeding twenty-five per cent, of each amount which shall not have been paid as directed thereby.

“Section 2394 — 18. Either party may present a certified copy of the award to tire circuit court for auv county, whereupon said court shall, without notice, render a judgment in-accordance therewith; which judgment, until and unless set aside as hereinafter provided, shall have the same effect as. though duly rendered in an action duly tried and determined by said court, and shall, with like effect, be entered and docketed.

/ “Section 2394 — 19. The findings of fact made by the board ; acting within its powers shall, in the absence of fraud, be conclusive; and the award, whether judgment has been rendered, 1 thereon or not, shall be subject to review only in the manner and upon the grounds following: Within twenty days from \he date of the award, any party aggrieved thereby may commence, in the circuit court for Dane county, an action against the board for the review of such award, in which action the-adverse party shall also be made defendant. In such action a complaint, which shall state the grounds upon which a review is sought, shall be served with the summons. Service-upon the secretary of the board, or any member of the board, shall be deemed completed service. The board shall serve-its answer within twenty days after the service of the complaint, and, within the like time, such adverse party shall, if' he so desires, serve his answer to said complaint. With its answer, the board shall make return to said court of all documents and papers on file in the matter, and of all testimony which may have been taken therein, and of its findings and award. Said action may thereupon be brought on for hearing-before said court upon such record by either party on ten days’ notice to the other; subject, however, to the provisions of law for a change of the place of trial or the calling in of another-judge. Upon such hearing, the court may confirm or set aside such award; and any judgment which may theretofore-have been rendered thereon; but the same shall be set aside-only upon the following grounds:

“1. That the board acted without or in excess of its powers...

“2. That the award was procured by fraud.

“3. That the findings of fact by the hoard do not support-the award.

“Section 2394 — 20. Upon the setting aside of any award! the court may recommit the controversy and remand the record in the case to the board, for further hearing or proceedings; or it may enter the proper judgment upon the findings, as the nature of the ease shall demand. An abstract of the judgment entered by the trial court upon the review of any award shall be made by the clerk thereof upon the docket entry of any judgment which may theretofore have been rendered upon such award, and transcripts of such abstract may thereupon be obtained for like entry upon the dockets of the courts of other counties.

“Section 2394 — 21. Said board, or any party aggrieved by a judgment entered upon the review of any award, may appeal therefrom within the time and in the manner provided for an appeal from the orders of the circuit court; but all such appeals shall be placed on the calendar of the supreme court and brought to a hearing in the same manner as state causes on such calendar.”

Sec. 2394 — 22 regulates officers’ fees, costs, and attorneys’ fees in the prosecution of claims. Sec. 2394 — 23 prevents assignment of the claim before payment and exempts the claim from being taken for debt. Sec. 2394 — 24 gives the claim preference over unsecured debts of the employer contracted after the passage of the law. Sec. 2394 — 25 provides that the making of a claim under the act shall operate to assign to the employer any 'cause of action in tort which the employee might have against a third party for the injury. Sec. 2394— 26 provides that the act shall not affect insurance companies, nor existing contracts of insurance, nor the right of the employer to insure against liability, and contains other clauses respecting the effect of amounts received by the employee by way of insurance or benefits. Sec. 2394 — 2*7 makes all contracts of insurance subject to the provisions of the act. Sec. 2394 — 28 provides that the employer may be relieved from liability under the act in a given case either (1) by depositing the present value of the total unpaid compensation, computing interest at three per cent, per annum, with a trust company to be designated by the board, or (2) by the purchase of an annuity approved by the board. Sec. 2394 — 29 requires the printing and furnishing of forms for the transaction of tbe business and. the keeping of records by the board) and requires the board to post or publish notices of the employer’s election to come under the act. Sec. 2394 — 30 appropriates a sufficient sum to carry out the provisions of the act; and sec. 2394 — 31 repeals all inconsistent acts.

Sec. 2394 — 32 is as follows:

“Section 2394 — 32. The legislature intends the contingency in subdivision 2 of section 2394 — 1 of this act to be a separable part thereof, and the subdivision likewise separable from the rest of the act, and that part of said section 2394 — 1 that follows subdivision 2, likewise separable from the rest of the act; so that any part of said subdivision, or the whole, or that part which follows said subdivision 2, may fail without affecting any other part of the act.”

By a later act passed at the same session of the legislature (ch. 485, Laws of 1911), an Industrial Commission, composed of three members, was created, which, among numerous other duties, is required to perform all the duties vested in the Industrial Accident Board aforesaid, and thus the last named board has passed out of existence. In re Filer & Stowell Co. 146 Wis. 629, 132 N. W. 584.

The act is quite long, as the complicated and delicate subject with which it deals manifestly requires, but its general purport and effect so far as this case is concerned may be briefly summarized.

It creates an administrative board to carry its provisions into effect; it divides all private employers of labor into two classes: (1) those who elect to come under the law, and (2) those who do not so elect; it takes away the defenses of assumption of risk and negligence of a co-employee from the second class (except that where there are less than four co-employees the latter defense is not disturbed), but leaves both defenses intact to the first class; it prescribes the manner in which an employer may elect to come under its terms, and how an employee may make his election and when silence on the part of the employee will he considered an election, hnt it does not in terms compel either employer or employee to submit to its provisions. It then provides a comprehensive scheme by which, after both parties have so elected, any substantial injury, whether the result be fatal or not, received by the employee in the course of or incidental to his employment (except those caused by wilful misconduct) shall be compensated for by the employer according to certain definite rules, which rules are to be administered by the administrative board aforesaid by means of simple procedure definitely laid down, which gives to both parties fair notice and hearing, and results in findings and an award which may be filed in the circuit court and become a judgment. It further provides that the findings of fact shall be conclusive and the award subject to review only by action in the circuit court for Dane county, in which it can be set aside only (1) if the Commission acted without or in excess of its powers, ( 2) if the award was procured by fraud, or (3) if the award is not supported by the findings of fact. It then provides that the judgment thus rendered shall be subject to appeal to the supreme court.

Eor all the essential purposes of this discussion it may truly be said that this is the law which is before us, and the question is simply whether there is any vital part of it which the legislature may not enact because the constitution forbids it.

It is matter of common knowledge that this law forms the legislative response to an emphatic, if not a peremptory, public demand. It was admitted by lawyers as well as laymen that the personal injury action brought by the employee against his employer to recover damages for injuries sustained by reason of the negligence of the employer had wholly failed to meet or remedy a great economic and social problem which modern industrialism has forced upon us, namely, the problem of who shall make pecuniary recompense for the toll of suffering and death which that industrialism levies and must continue to levy upon the civilized world. This problem is | distinctly a modern problem. In the days of manual labor, I the small shop with few employees, and the stage-coach, there I was no such problem, or if there was it was almost negligible. ¡ Accidents there were in those days and distressing ones, but | they were relatively few, and the employee who exercised any j reasonable degree of care was comparatively secure from in- ! jury. There was no army of injured and dying with con-I stantly swelling ranks marching with halting step and dim-j ming eyes to the great hereafter. This is what we have with ins now, thanks to the wonderful material progress of our ! age, and this is what we shall have with us for many a day to »come. Legislate as we may in the line of stringent require-i ments for safety devices or the abolition of employers’ eom- (' mon-law defenses, the army of the injured will still increase, f the price of our manufacturing greatness will still have to be paid in human blood and tears. To speak of the common-law personal injury action as a remedy for this problem is to jest with serious subjects, to give a stone to one who asks for bread. The terrible economic waste, the overwhelming temptation to the commission of perjury, and the relatively small proportion of the sums recovered which comes to the injured parties in such actions, condemn them as wholly inadequate to meet the difficulty.

In approaching the consideration of the present law we must bear in mind the well established principle that it must be sustained unless it be clear beyond reasonable question that it violates some constitutional limitation or prohibition.

That governments founded on written constitutions which are made difficult of amendment or change lose much in flexibility and adaptability to changed conditions there can be no doubt. Indeed, that may be said to be one purpose of the written constitution. Doubtless they gain enough in stability and freedom from mere whimsical and sudden changes to more than make up for the loss in flexibility; but the loss still remains, whether for good or ill. A constitution is a very human document, and must embody with greater or less fidelity the spirit of the time of its adoption. It will be framed to meet the problems and difficulties which face the men who make it, and it will generally crystallize with more less fidelity the political, social, and economic propositions which are considered irrefutable, if not actually inspired, by the philosophers and legislators of the time. But the difficulty is that, while the constitution is fixed or very hard to change, the conditions and problems surrounding the people, as well as their ideals, are constantly changing. The political or philosophical aphorism of one generation is doubted by the next, and entirely discarded by the third; the race moves forward constantly, and no Canute can stay its progress.

Constitutional commands and prohibitions, either distinctly laid down in express words or necessarily implied from general words, must be obeyed, and implicitly obeyed, so long as they remain unamended or unrepealed. Any other course on the part of either legislator or judge constitutes violation of his oath of office. But when there is no such express command or prohibition, but only general language, or a general policy drawn from the four corners of the instrument, what shall be said about this ? By what standards is this general language or general policy to be interpreted and applied to present-day people and conditions ? ■

When an eighteenth century constitution forms the charter of liberty of a twentieth century government must its general provisions be construed and interpreted by an eighteenth century mind in the light of eighteenth century conditions and ideals ? Clearly not. This were to command the race to halt in its progress, to stretch the state upon a veritable bed of Procrustes. '

Where there is no express command or prohibition, but only general language or policy to be considered, the conditions prevailing at the time of its adoption must have their due weight; but the changed social, economic, and governmental conditions and ideals of the time, as well as the problems which the changes have produced, must also logically enter into the consideration, and become influential factors in the settlement of'problems of construction and interpretation.

These general propositions are here laid down not because they are considered either new or in serious controversy, but because they are believed to be peculiarly applicable to a case like the present, where a law which is framed to meet new economic conditions and difficulties resulting therefrom is attacked principally because it is believed to offend against constitutional guaranties or prohibitions couched in general terms, or supposed general policies drawn from the whole body of the instrument.

Passing to the consideration of the contentions made in the present case, we note in limine that this is not a compulsory law: no employer is compelled to pay damages to an employee without having had his day in court. It is true that the argument is made that the law is practically coercive, but that argument is not regarded by us as sound, and will be taken up and treated later in this opinion. We are therefore relieved from all consideration of the question whether a compulsory compensation act offends against those clauses of the state and federal constitutions which guarantee all citizens against the' deprivation of property without due process of law. This-would be a question of greater difficulty than those which are presented in the present case. It was decided in the affirmative by the court of appeals of Hew York (Ives v. S. B. R. Co. 201 N. Y. 271, 94 N. E. 431), and in the negative by the supreme court of Washington (State ex rel. Davis-Smith Co. v. Glausen, 117 Pac. 1101, decided September 27, 1911), and we express no opinion upon it.

The contention which naturally seems to come first in order is the objection that the whole first section, abolishing the defenses of assumption of risk and negligence of a fellow-servant, is void, because, as it is said, public policy does not require tbeir abrogation in any bnt the hazardous trades, it being admitted that in these last named trades these defenses may properly be abolished.

The term “public policy” is frequently used very vaguely, and evidently is so used here. It is, however, quite a definite thing. Public policy on a given subject is determined either by the constitution itself or by statutes passed within constitutional limitations. In the absence of such constitutional or statutory determination only may the decisions of the courts determine it. Hartford F. Ins. Co. v. C., M. & St. P. R. Co. 70 Fed. 201; S. C. 115 U. S. 91, 20 Sup. Ct. 33. This court has said: “We know of no ground upon which a constitutional legislative enactment can be rightly spoken of as contrary to public policy” (Julien v. Model B., L. & I. Asso. 116 Wis. 19, 92 N. W. 561), and the remark is certainly correct. When acting within constitutional limitations, the legislature settles and declares the public policy of a state, and not the court. True, where the legislature has not spoken on a subject and the courts in the course of their duty have declared the principle of common law applicable thereto, public policy may be truly said to be thus created; but any public policy thus created by the courts may be at any time reversed or changed by the legislature, provided it act within constitutional lines. The people, acting directly by means of a referendum, or through their representatives in constitutional conventions or legislative bodies, are the makers of public policy, and it is only when the people have failed to speak in these methods that the courts can be said to have power to make public policy by decision. A constitutional statute cannot be contrary to public policy, — it is public policy.

The contention that a statute is unconstitutional because it is against public policy amounts to nothing more than a contention that it is unconstitutional, hence we address ourselves directly to that question and thereby gain something in clearness of thought.

■ Tbe two defenses which, the legislature has thus attempted to take away are not entrenched behind any express constitutional provision, nor were they originally created by legislative action. They were both evolved by the courts. At a time when industries of all kinds were comparatively simple and free from danger, when employees of a common master were few in number and generally acquainted with each other, and when a personal injury action was a rarity, it was thought not to be unreasonable that an employee should assume those simple risks which were plainly before him, and should not be heard to complain if he were injured by the careless act of a fellow-workman by whose side he had continued to work when he must have well known the nature and habits of the man. The precedent once made was generally followed, until it became buttressed by a multitude of decisions in practically all of the jurisdictions whose jurisprudence is founded upon the English common law. But, as has been pointed out earlier in this opinion, the conditions surrounding employer and employed have vastly changed during the last half century, and now the legislature, having become convinced that new conditions call for a change in rules of liability, have declared that such a change shall be made. They have changed the rule established by the courts because they deem another rule better fitted to deal with the problems of the time, or, in other words, because they deem it best to establish a changed public policy.

It is frankly admitted by appellant that it is within the legislative power to make this change with regard to the hazardous' trades, but not with regard to what are called the nonhazardous trades. But why not ? There are, of course, some occupations which are exceptionally hazardous, and it may well be that it would be within legislative discretion to classify these very hazardous occupations and remove the defenses as to them, while retaining them as to others less hazardous. Indeed, that very thing has been done and has been approved by the courts in tMs and many other states, especially in the case of railroads and to some extent with other industries. Minnesota I. Co. v. Kline, 199 U. S. 593, 26 Sup. Ct. 159; sec. 1816, Stats. (1898), as amended by ch. 254, Laws of 1907; Kiley v. G., M. & St. P. R. Co. 142 Wis. 154, 125 N. W. 464; sec. 1636j, Stats. (1898) ; sec. 1636jj, Stats, (ch. 303, Laws of 1905).

But because there is room for classification it does not follow that legislation without classification is unconstitutional. There are hazards in all occupations; indeed they follow every man from the cradle to the grave. What constitutional requirement, either express or implied, clothes these court-made defenses with exceptional sanctity as to the less hazardous industries, and warns off from them the sacrilegious hand of the legislature ? We are referred to none, and we know of none. It is admitted in the Ives Oase, supra> that both the fellow-servant defense and the contributory-negligence defense, being of judicial origin, may he changed or abolished by the legislature. See, also, the Opinion of the Justices of the Massachusetts Supreme Court on the Personal Injuries Act of 1911, 96 2ST. E. 308. We see absolutely no ground for the contention that these defenses may be lawfully abrogated as to the more hazardous industries, but must be forever held sacred as to the less hazardous industries. There may be a less persuasive reason for the change in the case of the latter class of industries, but this does not deprive the legislature of the power to make it.

But it is said that there is no proper classification here and hence that the law is fatally discriminating in its character. The two defenses are preserved intact to employers who elect to come under the law and taken away from those who do not so elect.

The rules governing classification are familiar and are in brief as follows: It must be based on substantial distinctions which make real differences; it must be germane to the purposes of tbe law; it must not be limited to existing conditions, only; and must apply equally to each member of tbe class. It seems to us tbat tbis classification fully meets these requirements. Certainly there will be very real differences between tbe situation of tbe employer who elects to come under tbe law and tbe employer who does not. If tbe consenting employer only employs workmen who also elect to come under the law, be can never be mulcted in heavy damages, and will know whenever an employee is injured practically just what must be paid for tbe injury. Surely tbis is a different situation from tbe situation of tbe man who is liable to be brought into court by an injured employee at any time and obliged to defend common-law actions upon heavy claims unliquidated in their character, tbe outcome of which actions none can foretell. On tbe other band, if, as seems quite likely, tbe greater part of tbe consenting employer’s workmen consent, but some do not, and these latter are still retained in tbe employment, tbe same considerations will apply with somewhat less force. On tbe one band there is a class of consenting employers employing wholly or largely consenting workmen, and having definite and fixed obligations to their workmen in case of injury. On tbe other band is a class of nonconsenting employers who have no such fixed obligations in case of injury to their workmen, but choose to meet every such workman in court and fight out tbe question of liability. There seems a very robust difference between these two classes. But after all there is another distinction which seems perhaps more satisfactory: the consenting employer has done his share, and it must be considered a considerable share, in rendering successful the legislative attempt to meet and solve a difficult social and economic problem. Even if it be true (which, as before stated, is not decided) that he may not be compelled under our constitutions, state and national, to assist in the solution of this problem, still does not his voluntary act in giving that assistance constitute a substantial distinction, making a real difference of situation between-him and tbe employer wbo refuses bis aid — a difference-wbicb justifies a difference in treatment ?

It seems to us that tbis question must be answered in tbe affirmative, and if it be so answered there can be no doubt as. to tbe legitimacy of tbe classification, for tbe reason that it. is quite apparent that tbe other conditions of valid classification are fully satisfied. There can be no doubt that the-classification is germane to tbe purpose of tbe law, and it is. not limited in its application to existing conditions only, and-, applies equally to each member of tbe class. •

Tbe minor classification by wbicb tbe fellow-servant defense is preserved to all employers employing less than -four-employees in a common employment is also attacked as having no proper legal basis, but it seems to us that tbe grounds of classification here are more persuasive even than in the-case just discussed. Tbe man wbo is employed with one or-two other men in a given employment, in all reasonable probability knows their characteristics well and will probably be with them a great part of tbe time. He will have ample opportunity to form a just judgment as to tbe risk of injury from their negligence wbicb be will run if be works with them, and will be enabled to shape bis own conduct accordingly; but tbe man wbo is one of a large number of men, many of whom be never sees, and some of these latter having duties to perform in distant places upon tbe due performance of wbicb bis own safety depends, has no opportunity to acquire any accurate knowledge of tbe characteristics of many of bis fellow-workmen, and cannot intelligently decide what risk be runs at tbe bands of such distant and unknown employees. Tbe difference in situation is not merely fanciful — it is real. In one case tbe employee knows or has tbe means of knowing what to expect from bis colaborers, in the other case be has neither tbe knowledge nor tbe means of knowledge. Of course, there will be cases on tbe border line where the difference in situation will be very slight, or perhaps entirely nonexistent. There will probably be no practical difference between the situation of the man who is one of four or five employees in a given employment and the situation of the man who is one of three, but this does not militate against the legitimacy of the classification: this is a necessary defect in all cases of classification based upon numbers. The question is not whether there may be some on one side of the line whose situation is practically the same as that of some on the other side, but whether there is a “distinction between the classes as classes, whether there are characteristics which, in a greater degree, persist through the one class than in the other which justify legal discrimination between them.” Stats v. Evans, 130 Wis. 381, 110 N. W. 241.

Passing from these questions of classification, we meet the objection that the law, while in its words presenting to employer and employee a free choice as to whether he will accept its terms or not, is in fact coercive, so that neither employer nor employee can be said to act voluntarily in accepting it.

As to the employer, the argument is that the abolition of the two defenses is a club which forces him to accept; and as to the employee, the argument is that if his employer accepts the law the employee will feel compelled to accept also through fear of discharge if he do not accept.

Both of these arguments are based upon conjecture. Laws eannot be set aside upon mere speculation or conjecture. The court must be able to say with certainty that an unlawful result will follow. We do not see how any such thing can be said here. No one can say with certainty what results will follow in the practical workings of the law. It may well be that many manufacturers, especially those employing small numbers of employees and in the less dangerous trades, will deliberately conclude that it will be better business policy to exercise greater care in guarding their employees from possible danger and greater discrimination in the employment of careful men, and reject tbe law entirely, running the risk of being able to prevent all or nearly all accidents. It seems extremely probable that the great bulk of workmen, especially of the unskilled classes, will be glad to come under the act and thus secure a certain compensation in case of injury, in place of that very uncertain and expensive thing, namely, the final result of a lawsuit. But whether this be so or not, it may be considered as reasonably certain that very many will elect to come under the act voluntarily and freely, and that those who do not will probably come from the ranks of skilled labor, who will deem the rates of compensation under the law as entirely inadequate, or will be careful workmen in the less dangerous trades who will see no gain in bartering their common-law rights for the restricted remedies furnished by the statute.- It cannot be said with any certainty that such men will be discharged for their failure to voluntarily come under the law. The probability would seem rather to be that they would be of a class which the employer would wish to keep in his employ, notwithstanding their attitude toward the law. These matters arc, however, purely speculative and conjectural; none can say what the practical operation of the law will be. It is enough for our present purpose that no one can say with certainty that it will operate to coerce either employer or employee.

We thus reach the conclusion that there are no valid constitutional objections to the first section of the law in question, and this conclusion obviates the necessity of any consideration of the provisions of sec. 2394 — 32, which aims to preserve the balance of the law intact in case the whole or some part of sec. 2394 — 1 should be considered invalid. We may say in passing that we know of no good reason why the legislature may not declare its intention that one part or section of a law is not a compensation for and that it may be separated from the balance of the act for the very purpose of saving such balance from being invalidated in case the first named part or section be beld unconstitutional. We think it would take a very extreme case of palpable absurdity or falsity in such a provision to justify any court in declaring ■such a declaration of legislative intent ineffective, if indeed a ■court could make such a declaration at all.

^ The next important contention is that the law is unconstitutional because it vests judicial power in a body which is not a couirt and is not composed of men elected by the people, in violation of those clauses of the state constitution which vest the judicial power in certain courts and provide for the ■election of judges by the people, as well as, in violation of the ■constitutional guaranties of due process of law. It was suggested at the argument that the Industrial Commission might perhaps be held to be a court of conciliation, as authorized to be created by sec. 16 of art. YII of the state constitution, but we do not find it necessary to consider or decide this contention. We do not consider the Industrial Commission a court, nor do we construe the act as vesting in the Commission judicial powers within the meaning of the constitution. It is an administrative body or arm of the government which in the course of its administration of a law is empowered to ascertain some questions of fact' and apply the existing law thereto, and in so doing acts qwm-judicially, but it is not thereby vested with judicial powep in the constitutional sense.

There are many such administrative bodies or commissions, and with the increasing complexity of modern government they seem likely to increase rather than diminish. Examples may be easily thought of, — town boards, boards of health, boards of review, boards of equalization, railroad rate commissions, and public utility commissions all come within this class. They perform very important duties in our scheme of government, but they are not legislatures or courts. The legislative branch of the government by statute determines the rights, duties, and liabilities of persons and corporations under certain conditions of fact, and varying as the facts and conditions change. Manifestly the legislature cannot remain in session and pass a new act upon every change of conditions, hut it may and does commit to an administrative hoard the duty of ascertaining when the facts exist which call into activity certain provisions of the law, and when conditions have changed so as to call into activity other provisions. The law is made hy the legislature; the facts upon which its operation is dependent are ascertained hy the administrative board. While acting within the scope of its duty, or its jurisdiction, as it is sometimes called, such a hoard may lawfully he endowed with very broad powers, and its conclusions may he given great dignity and force, so that courts may not reverse them unless the proof he clear and ■satisfactory that they are wrong. Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Commission, 136 Wis. 146, 116 N. W. 905. Rot only this, hut many such hoards are created whose decisions of fact honestly made within their jurisdiction are not subject to review in any proceeding. State ex rel. Coffey v. Chittenden, 112 Wis. 569, 88 N. W. 587; State ex rel. Vilas v. Wharton, 117 Wis. 558, 94 N. W. 359 ; State ex rel. Cools v. Houser, 122 Wis. 534, 561, 100 N. W. 964; State ex rel. McManus v. Trustees, 138 Wis. 133, 119 N. W. 806. It is important to notice the limitation contained in the last sentence: the decision of such a board may he made conclusive when the board is acting within its jurisdiction, not otherwise. Hence the question of its jurisdiction is one always open to the courts for review; it cannot itself conclusively settle that question and thus endow itself with power. If no appeal from its conclusions be provided, the question whether it has acted within or exceeded its jurisdiction is •always open to the examination and decision of the proper court by writ of certiorari. The instances where the question of jurisdiction of such bodies has been examined and decided in certiorari actions are so numerous that it seems unnecessary to cite them. In such cases it is considered that 'clear violations of law in reacting the result reached by the’ board, such as acting without evidence when evidence is required, or mating a decision contrary to all the evidence, constitute jurisdictional error and will justify reversal of the board’s action, as well as the failure to take the proper steps to acquire jurisdiction at the beginning of the proceeding. State ex rel. Augusta v. Losby, 115 Wis. 57, 90 N. W. 1135.

Thus, in the case before us, the jurisdiction of the Industrial Commission to entertain any claim for compensation under the act rests upon two facts which must exist, viz. r (1) that both employer and employee have elected to come under the act, and (2) that the injury was received in service-growing out of or incidental to the employment as the result, of accident, and not of wilful misconduct.

The Industrial Commission must, of course, decide these-questions in any case where they are raised, but it cannot decide them conclusively, for they are jurisdictional questions-on which its right to act at all depends. They must be open to review in some court of competent jurisdiction, otherwise-the parties would be denied due process of law. The tribunal only has authority over those who have voluntarily elected to give it authority, and if it can decide finally that' a man has given consent when he has not it assumes the functions of a court. If the act before us took away from the-courts the power to consider these jurisdictional questions,, either expressly or by necessary implication, the contention that judicial power had been vested in the Oommission, contrary to the command of the constitution, would be of greater-force, but we think that the act does not do this, or attempt to do it. True, it says that the findings of fact made by the Oommission shall, in the absence of fraud, be conclusive; but it provides for an action in the circuit court for Dane county, in which the board’s award may be set aside upon either of three-grounds, viz.: (1) that the board acted without or in excess of its powers; (2) that the award was procured by fraudy and (3) that the findings of fact do not support the awardif****

We regard the expression “without or in excess of its powers” as substantially the equivalent, or at least as inclusive, of the expression “without or in excess of its jurisdiction,” as those words are used in certiorari actions to review the decisions of administrative officers and bodies. We know of no other construction that can be logically given to them, and it seems to us that they were designedly and advisedly inserted by the framers of the bill to meet the very objection which is now made. With this'construction, it is certain that the constitutional powers of the courts have not been invaded, and that no man without his consent can be brought under the law or is deprived of his right to “due process of law” thereby.

There are some further objections which will be more briefly considered. It is said that even if it be held that the act is not coercive, still when employer and employee consent to come under the law they in effect wholly stipulate away their rights to resort to the courts, and that such agreements are void, citing Fox v. Masons’ F. Acc. Asso. 96 Wis. 390, 71 N. W. 363. The case cited, however, recognizes the companion principle that agreements to arbitrate special matters, such, for instance, as the amount of the loss under an insurance policy (or, as in the present case, the extent of an injury or disability, and the like), which do not go to the whole groundwork of the controversy, are universally sustained. As we have seen, these special matters are the only matters which the board may conclusively decide under this law. If there be a controversy as to fundamental rights, namely, whether the parties have consented, or as to whether the injuries resulted from wilful misconduct, these issues are still open to the court upon the appeal.

In considering the question as to how far consent may go in matters of this kind, a case not cited in the briefs or mentioned in tbe oral argument should, we think, be referred to here, viz.: the ease of Van Slyke v. Trempealeau Co. F. Mut. F. Ins. Co. 39 Wis. 390. In this case it -appeared that the legislature had passed a law providing that in case of the filing of an affidavit of prejudice against a circuit judge the parties might, if they chose, stipulate that a member of the bar should act as judge and try the case with all the powers of the regularly elected judge of the court. Acting on this law, the parties in the case agreed that Mr. John J. Cole should try the case, and he did so, rendered judgment for the plaintiff, and the defendant appealed. The court held (Chief Justice RyaN writing the opinion) that, the constitution having vested all the judicial power of the state in the courts and provided for the election of judges for such courts, the legislature could confer no judicial power on other officers-or persons, nor authorize the parties to an action to do so, hence there was no trial before a court, and no judgment. The question as to whether the defeated party might not be prevented from raising any objection by his voluntary waiver was not considered or mentioned; but in any event the case has no bearing here, and is only mentioned in order to show that it has not been overlooked. It only decides that neither the legislature nor private parties can make a judge out of a private citizen and endow him with the power to hold a court contrary to the direct command of the constitution. As the Commission in the present case is not a court, but simply an administrative board, the doctrine laid down in the case cited has no application.

Again, it is said that the act compels municipalities to levy taxes for other than public purposes, since all workmen injured in the employ of the public are to be compensated, and thus taxpayers will be deprived of their property without due process of law. We have not been quite able to appreciate the force of this point, and we find no argument upon it in the brief. We shall only say that the manner in which the state or tbe public shall treat its workmen is peculiarly a matter for tbe legislature to determine. No one is compelled to work for tbe public, and, if be does, be takes bis situation on tbe terms wbieb tbe public gives. We know of no reason wby tbe public, acting by its lawmaking power, may not provide that its employees shall have as part of their compensation certain indemnities in case of accidental injury in tbe public service. When a law does so provide, tbe raising of tbe funds to discharge those indemnities becomes plainly a proper public purpose.

Objection is made to those clauses of sec. 2394 — 16 which' provide for tbe giving of notice of claim by mail, and allow testimony to be taken without notice to either party, and tbe claim is made that this is not “due process of law.” Were tbe Commission a court these objections would probably deserve serious consideration, especially tbe latter one. But, as we have seen, tbe Commission is an administrative board merely. It is common knowledge that such boards are frequently given power to investigate and determine facts without notice to tbe parties of each successive step in tbe proceedings. Tbe proceedings before such boards are not expected to be as formal and cumbrous as tbe proceedings of courts; indeed, tbe greater flexibility which such bodies must possess if they are to discharge their duties seems to demand greater freedom of action. If notice, either actual or constructive, of tbe commencement of tbe proceedings before such a body be required to be given to tbe parties interested and they be given full and free opportunity to be beard and present evidence, it is generally held sufficient, even though notice of intermediate steps in tbe proceeding be not required or given. Schintgen v. La, Grosse, 117 Wis. 158, 94 N. W. 84. In case of a board like the present, which only acts on tbe rights of parties who have consented that it may so act, tbe reason of tbe rule is far stronger. '

Some contention is made in tbe brief that minors cannot be treated in tlie same manner as adults, and that the provision of the law which declares that a minor who is legally entitled to work shall have the same power of contracting for service as an adult is objectionable, because it allows the employer to decide whether the law shall treat his minor employees as adults. The objection seems to us fanciful and elusive. There is no claim that the legislature may not endow minors with the right to make contracts otherwise lawful, and, if this be so, it seems to us to be the end of the discussion. After the minor is so endowed he becomes for the purposes of the act an adult, or at least on the same plane. Uo adult employee of a private employer can elect to come under the act unless his employer has first elected to do so. So the employer has the power to decide whether any of his employees, infant or adult, shall have the privileges of the act if they continue to work for him. This is practically all there is of the matter, and we see no substantial distinction between the effect of the law upon the adult and its effect upon the minor.

The foregoing considerations are believed to fully meet and dispose of all the objections made to the law which could reasonably be claimed to be fatal to the entire law if sustained. There are many objections made to single sections or clauses of the law which we do not find it necessary or advisable to treat at this time. Even should some or all of them be sustained, it is our judgment that the sections or clauses so questioned could not be said to be so far compensations for or inducements to the balance of the law that the entire law must fall. In our judgment it is better to reserve these questions for consideration when an actual case arises which calls for the decision of the court upon them. It is well-nigh impossible for the human mind to call up and contemplate in advance all the considerations which ought to be considered in passing upon the validity of the various incidental clauses of a new and complicated law. The concrete case and its actual circumstances and effects are apt to throw much light upon tbe question and suggest considerations wholly un-thought of when viewing the matter abstractly in advance of any actual experience.

Among these contentions which we now pass without decision, perhaps the most important is the contention that so much of sec. 2394 — 16 as provides that the board or any member thereof, or any examiner appointed thereby, shall have power to issue subpoenas, obedience to which shall be enforced by contempt proceedings in the circuit court. This seems to present a serious question worthy of careful examination, and we intimate no opinion upon it now.

Other minor contentions, which we do not consider it necessary or advisable to pass upon now, are to the effect that the clauses are void which empower the-Commission (1) to declare and enforce penalties against the employer for failure to perform certain orders of the board made pending hearing (sec. 2394 — 17) ; (2) to set aside or modify contracts of settlement previously made by the parties (sec. 2394 — 15) ; and (3) to regulate the amount of contingent attorney’s fees and permit one claimant to make a contract which it may refuse to allow another to make (sec. 2394 — 22).

Before closing we shall briefly refer to another question which was not much discussed on the argument, namely, the question whether the law applies or was intended to apply to persons who, like the plaintiffs, are employed under contracts of service made prior to the passage of the law, and which do not expire until some definite date in the future, and, if so, whether the law can apply to them without impairing the obligations of their contracts, and thus violating the constitution. As to the first branch of this question, we think that the language of the act leaves no doubt as to the intention of the legislature. The entire act by express terms was to become effective September 1, 1911. Its provisions are broad and without express exception. Eead according to their grammatical meaning, they include all employers and employees who occupy those relations at the time the law becomes effective. If there was an intention to exclude any from its terms, that intention has been carefully concealed. We conclude that it was intended to include all employers and employees, whatever the term of service. The question whether the act as so construed affects an existing contract of service expiring at some distant period in the future is easily answered in the negative, as it seems to us. Certainly the law does not affect the service to he rendered or the wages to be paid in any way. Neither the obligation of the workman to faithfully do his work, nor the obligation of the employer to faithfully pay the stipulated wage, nor the remedy in case of breach by either party, is in any way affected. What, then, is affected?' Plainly no provision of the contract. But, if the employer elects to come under the law, the employee must choose whether he will come under it or not, and if he does not wish to come under it he may run the risk of being discharged, or if he wishes to retain his employment he may feel compelled to elect to come under the law and thus-lose his right to bring an action at law in case of a personal injury sustained in the employment. But all this does not in any way affect the contract of employment; that remains absolutely unimpaired in all its terms. The right to bring an action in the future in case of a possible tort not yet committed is no part of the contract of employment. That right arises out of the relation of employer and employee and is subject to change by the lawmaking power at any time. The employer does not contract that it shall remain intact. There is no vested right in a mere remedy for a hypothetical wrong. At most the law cannot be said to do more than change the remedy for a tort which is yet to happen, and may never happen. The legislature may change the remedies for torts yet to be committed at any time, and such changes cannot be said to make any change in mere contracts of service-existing between the parties. This seems very patent. The legislature has at many times within the last two decades passed laws very materially changing.tbe liabilities of employers to employees for injuries resulting from the negligent acts of the employer, e. g. tbe laws requiring the protection of machinery, abolishing assumption of risk in such cases, abolishing the co-employee rule as to railway companies, and changing the rules as to contributory negligence. In no case has the claim ever been made that these laws in any way affected or impaired existing contracts of service for terms expiring in the future, although many cases must doubtless have occurred where those laws were applied to parties who were under such contracts.

We have now discussed all of the contentions made against the law which we deem entitled to detailed treatment, and we find no serious difficulty in sustaining its fundamental and essential provisions. . As said in the beginning of this opinion, this law forms the answer of the legislature to a very widespread demand. It is a legislative attempt to reach within constitutional lines some fair solution of a serious problem which other nations, not restricted by written constitutional inhibitions, have solved or partially solved years ago. Doubtless the law will need and will receive changes and amendments-as time shall test its provisions and demonstrate its. weak points. It would be unreasonable to expect that a law covering so important a subject along lines not before attempted should be perfect, or very near perfect, upon its first enactment. If experience shall demonstrate that it is practicable and workable and operates either wholly or in great measure to put an end to that great mass of personal injury litigation between employer and employee, with its tremendous waste of money and its unsatisfactory results, which now burdens; the courts, the long and painstaking labors of those legislators and citizens who collaborated in framing it will be fittingly rewarded by a result so greatly to be desired. That result will mean a distinct improvement in our social and economic conditions.

The effect of our conclusions upon the result in the present case is yet to be considered. Tbe complaint was sustained and tbe injunction granted on tbe ground apparently that, tbe law being valid, tbe plaintiffs would-be greatly injured if tbeir employer elected to become bound by it, because they would be obliged either to break tbeir existing contracts or lose tbeir common-law remedies for tbeir employer’s torts. Granting all that plaintiffs claim as to tbe necessary results of tbeir employer’s election, it is very certain that no irreparable injury results to them. If tbeir employer breaks bis contract of employment because tbey decline to accept tbe new law, tbey have adequate legal remedies for tbe recovery of damages. If, on tbe other band, tbey elect to come under tbe law themselves, tbey lose no vested or contract right, and are not damaged in tbe eyes of tbe law by tbe change in tbeir remedies for future torts. In either event there is no cause of action in equity, and no ground for an injunction. Tbe complaint should have been dismissed on tbe pleadings.

By the Court. — Judgment reversed, and action remanded with directions to dismiss tbe complaint.

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Concurrence Opinion

Tbe following opinion was filed November 16, 1911:

BabNbs, J.

(concurring). I concur in tbe opinion of tbe Chief Justice except in so far as it is said in effect that our constitutions may mean one thing today and something different tomorrow, depending on whether conditions and ideals have in tbe meantime undergone a change. I regard our constitutions as immutable except when changed in tbe manner therein prescribed. Judges in interpreting our fundamental laws may at one time reach conclusions different from those which would be reached at another time. This does not argue that tbe constitutional provision under consideration has undergone any change, but demonstrates that judges, being finite beings, made a mistake at one time of tbe other. No act of tbe legislature should be declared unconstitutional unless it is clearly so. This is elementary. By bewing closely to this line, there is little clanger of the courts committing any serious blunders in interpreting our organic laws. If a legislative act measured by this standard trenches on the constitution, it should be held void regardless of whether or not the provision violated is out of harmony with twentieth century conditions and ideals. To hold otherwise is to say that the courts may change our fundamental laws. This would be a clear usurpation of power never vested nor intended to be vested in the courts, and one which was reserved to the people themselves. I am a firm believer in constitutional government. I do not share the belief that our constitutions have.become archaic or that they have outlived their usefulness. If the opinion of the court is intended to mean that it is a doubtful question whether our constitution should he preserved or thrown in the “scrap heap,” I do not agree with it.

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Concurrence Opinion

Marshall, J.

(concurring). The result, itself, meets with my unqualified approval. Some language in the court’s opinion, however, respecting the constitution, I fear will be construed in a different way than the writer thereof, or any member of the court, intended or would sanction, tending to impair the lofty character of, the fundamental law as significantly maintained by this court. I am not alone in that. Other language appears which does not express my personal views. True, none of such is matter of decision or even judicial dicta, but if left unchallenged, it is liable to misleadingly indicate a trend of judicial thought here which, I am safe in saying, does not exist. I choose to avoid responsibility therefor. It, seemingly, is my duty to do so. In discharging that duty I wish not to take from the dignity of the court’s able opinion on the vital questions presented for solution. I do not understand they involved any new constitutional, or any question of difficulty, giving rise, under any circumstances, to desire a broader fundamental spirit than has been, long firmly entrenched in the jurisprudence of this country..

The law approved is a very mild piece of legislation. While I would not suggest it is too moderate for now, — for-that is not within my province, — yet I would not indicate that, the legislature responded as fully as it might to the need, for a system as directly as practicable, laying the personal injury burdens of production upon the things produced, where' they belong, as should have been efficiently recognized long ago, and would have been had the lawmaking power appreciated that it is its province, not that of courts, to cure infirmity in the law. If criticisms, unjustly and freely directed toward the latter and the human instrumentalities thereof,, merely because of their fidelity to duty to maintain the laws-as given, had been turned upon the former for failure to better conserve human happiness in the industrial field in the light of twentieth century conditions, untold suffering might have been prevented, which only the people’s representatives, could prevent. Tardy recognition of such duty casts no reflection upon legislative actors of today. Who can say but. that they would have had the same ideals as now, and effected the same results long ago if opportunity had been offered, them to do so % It has been, in the past, far easier to criticise a power which was helpless to supply a remedy, than to suggest one or move legislative power to adopt one.

I am constrained to write the foregoing to give deserved-credit to the patient, earnest, efiicient labor of the lawmakers-who placed the enactment in question upon the statute book of this state. It would give them too little credit to record,, merely, that they bowed to public demand, and too little - credit to this court to leave room for the thought that it has-been'influenced by any such demand to give the constitution any new shade of meaning to sustain the enactment, or that it would change, or arrogate to itself, power or disposition to-change, fundamentals in any sense, bj judicial interpretation.

As to tbe subject of tbe enactment, advanced thinkers in economics, law, and legislation have been at tbe front and tbe public has been slow to follow. It took tbe industrious, able, patient, tactful legislative committee over two years of activity, to educate tbe people up' to willingness to accept on trial tbe mild law before us. Opposition bad to be overcome by education on all sides. Tbe legislature responded not so much to a general demand, as to a constitutional command, to conserve, in tbe light of tbe present, tbe public welfare.

Tbe remarks in tbe court’s opinion which may suggest to some that a different meaning is to be read out of tbe constitution now than formerly; that it may have meant one thing when framed and later another, and now be held differently, according to judicial interpretation to meet social necessities as recognized by human instrumentalities in tbe particular environment, — probably was not so intended, but I sense danger of a contrary impression going out. Such ability to bend tbe fundamental law in tbe name of judicial interpretation,— tbe idea that an eighteenth century construction for an eighteenth century condition may not, and at tbe bands of tbe court does not have to, fit a twentieth century condition,— has been advanced by some, but not significantly at least by any court. On tbe contrary, it has met with universal condemnation. That it is wrong, every.man of eminence that has ever written upon tbe subject in tbe past, as well as tbe very nature of tbe case and tbe very logic and limitations of judicial interpretation, bear witness. Tbe fertile method of dealing with tbe constitution has been characterized as one which has “furnished a mode of argument which would on tbe one band leave tbe constitution crippled and inanimate, or on tbe other give it an extent of elasticity -subversive of all rational boundaries.” Story, Const. 389.

Manifestly, there can be but one right interpretation or construction of tbe constitution. It is said to bave been constructed of general declarations, so that, in letter and spirit, it might abide indefinitely and would have to so abide, dealing with all conditions and all ages, except as amended in the manner therein specified. Considerately with that, there can be but one viewpoint for interpretation, and that is the one from which the framers of the system builded. That is unmistakably indicated in Marbury v. Madison, 1 Cranch, 137; Martin v. Hunter's Lessee, 1 Wheat. 304.

We speak of the constitution in a general sense, — the American system, commencing with the federal model and including the state constitutions framed in harmony therewith. In all writings thereon, from Chief Justice Marshall to date, the idea that it cannot be properly judicially changed to suit the notions of the times, and that there will appear little need therefor when the real nature thereof is comprehended, is made prominent. It was that idea, largely, which moved one eminent writer to speak of it as the “greatest single achievement of the eighteenth century,” and another to characterize it as the “most wonderful work ever struck off at a given time by the brain and purpose of man.” Truly, it cannot be said of that which was so unequaled in the eighteenth century, and, we may well add, was unequaled in the nineteenth and has been since, that it can take the cast, so1 to speak, from time to time of its environments as judicial instrumentalities may view it through the vista of conditions in prcesenti. All history says No. The very inconsistency of the contrary says No. The absence of any necessity for, and the destructive danger of, any such quality say No.

A new remedy for a new condition within the boundaries of reason is within legitimate police authority. Who could wish more? How could more exist and human liberty, — ■ natural, inherent rights be safe? Would it not be well to recur to the classic rule for testing legitimacy of legislative enactments, given by the most eminent judicial expounder of the constitution of which the history of American jurisprudence bears record:

“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 consist with the letter and spirit of the constitution, are constitutional.” McCullough v. Maryland, 4 Wheat. 316, 421.

With that and the significance of the declared purpose and central thought of the constitution in mind, much of the supposed difficulty which has stimulated suggestions of competency to, and necessity for, bending it by a usurpations method of interpretation, will disappear.

How are we to determine when the purpose of a law, in the field of police power, and unaffected by any express prohibition, is legitimate ? It seems the answer is easy. Look first to the purpose of the constitution, found in the declaration, “Grateful to Almighty God for' our freedom, in order to secure its blessings, form a more perfect government, insure domestic tranquillity and promote the general welfare,” we “do establish this constitution.” [Const. Preamble.] Then to the central thought, — the very substructure, — upon which the whole was builded: “All men are born equally free and independent, and have certain inherent rights; among these are life, liberty, and the pursuit of happiness.” [Const, art. I, sec. 1.] There is voiced a broad spirit, covering as this court has, in effect, many times said, a field as limitless as are human needs. The language was not used for mere rhetorical ornamentation or effect, but to suggest the permissible scope of legislation in the zone of general welfare, its extent and its limitations. Durkee v. Janesville, 28 Wis. 464, 471; State ex rel. Zillmer v. Kreutzberg, 114 Wis. 530, 90 N. W. 1098; State v. Redmon, 134 Wis. 89, 114 N. W. 137; Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885.

So here, as it seems, the initial-question was this: Is the purpose of the law legitimate, within the broad dominating spirit mentioned? Tbe answer must be Yes, as tbe manifest purpose is to promote every element of tbe central tbougbt of tbe constitution. Anything fairly witbin that bas always been and must, necessarily always, be beld legitimate. Keeping in mind that in tbe selection of means tbe legislature bas a very broad comprehensive field in which to freely make a choice, tbe next question is, Are tbe means contemplated reasonably appropriate to tbe end to be attained ? Not are they the best means, but are they proper means, in that they are not witbin any express prohibition and tend to conserve rather than to destroy? All must agree in tbe affirmative on that in harmony with tbe best tbougbt of all tbe more civilized nations of Europe. Tbe difficulty here bas been, want of appreciation of tbe great economic truth, that personal injury losses incident to industrial pursuits, as certainly as wages, are a part of tbe cost of production of those things essential to or proper for human consumption, and tbe more directly they are incorporated therein tbe less tbe enhancement of cost and tbe better for all.

True, tbe old remedies for losses mentioned have been inefficient and wasteful. They are, economically speaking, unscientific and have always been. It is more apparent now than formerly by reason of greater and more numerous modern activities and methods, that is all. In truth, tbe infirmity from an economic standpoint, and from tbe standpoint of man’s duty to bis fellow men, bas always existed, though tbe quantum of regrettable results and useless waste bas greatly increased by tbe multiplication of human activities and physical instrumentalities.

So it will be seen, I think, that while particular means may be reasonably appropriate to a legitimate purpose under some conditions characterizing a particular period, and not have been at a prior time, no change in tbe constitution is involved in remedying t^e misfit. Tbe end being proper tbe legitimacy of means may be dependable upon conditions, tbe ques-tioiL turning more on matter of fact thaU anything else. The change of mere means does not require a fundamental change, so long as legitimacy of end and reasonable appropriateness ■of means shall be kept efficiently in view.

Want of appreciation, in my judgment, of. the constitution from the viewpoint suggested, has led some to advocate judicial changes to meet new conditions, while others, have insisted that many amendments, made in the prescribed way, practically substituting a new system for that of the Fathers, are necessary or advisable, and still others have maintained the broad liberal view suggested, which was early entrenched in the jurisprudence of this country by the judicial writings •of Chief Justice JohN Maushall. That idea renders changes of any kind unnecessary to' legislative competency to legislate to any extent which reasonably promotes a constitutional object. Anything further would destroy, or tend to ■destroy, instead of promote public welfare. Such idea is the •safe one and the right one from the viewpoint, I think, of the Fathers. It is the one sturdily maintained by this court. It is the one I feel competent to say, all members of this court 'would now maintain and that nothing in its opinion should be otherwise taken.

If the constitution is to efficiently endure, the idea that it is capable of being re-squared, from time to time, to fit new legislative or judicial notions of necessities in prwsenii, instead of new legislation being tested by it, must be combated whenever and wherever advanced, and wrong impressions in regard to the matter carefully guarded against. To even, -significantly, speak of making the constitution adaptable to new conditions by means of interpretation, when the selection -of new and constitutional means, adaptable to such conditions, is meant, is liable to confuse and weaken that high regard all should have for the fundamental law as a broad, definite, certain, comprehensive, unvarying and unvariable •system, other than by the means therein pointed out. Dark will be the day, if that day will ever come, for the people of' this country, and dark to the people of all countries whose attention is directed here for lessons in constitutional government, when our system shall not he held up hy the courts as speaking the same at one time as at the other, except in so-far as changes shall be made in the particular way. That is. the doctrine of Marbury v. Madison, 1 Cranch, 137. No one-can read that great exposition of our system without appreciating how illogical it is to speak of interpretation as an instrumentality for giving, from time to time, a different cast to the fundamental law. The whole spirit of the court’s logic condemns such reasoning as heresy. Note the significance of this: “The exercise of this original right” to make a system of government “is a very great exertion; nor can it-nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the-authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.” In that connection the court added, in unanswerable logic, that the constitution is not only the paramount law but is absolutely unchangeable by ordinary means; that laws adaptable to it. are legitimate, and laws so called, not so adaptable, are not laws at all. It was designed to govern the legislature and the courts as well. That conception is of something high above either legislatures or courts, to vary it. How can that be done by indirection, miscalled interpretation and construction, — a method of rounding a syllogism with a conclusion based on false premises? Interpretation of that sort would enable courts to evade and render useless the most carefully drawn enactments whether of fundamental or subsidiary law.

So, in short, I think the law in question is a reasonably appropriate means to effect a constitutional purpose; that the-constitution needs no bending whatever in order to sustain it in its essential features, and none would be proper if the contrary were the case.

Tbe foregoing I can but regard out of harmony with this, in its letter: “changed social, economic, and governmental conditions and ideals of the time, as well as the problems the changes have produced, must logically enter into the consideration and become influential factors in the settlement of problems of construction and interpretation,” so far as it is pregnant with the thought that the fundamental law is judicially changeable. The words “problems” of “construction” and “interpretation,” I think were unfortunately used, if the thought was merely of problems of whether new enactments to cope with new conditions aré within or without the legitimate field of legislative activity, haying regard to appropriateness of means to effect a constitutional end. The latter might bé, as I have suggested, at one time and not a half century theretofore, because changed conditions may render an end legitimate, within the unchangeable scope of the fundamental law, which earlier was not, or the selected means to effect that end might be reasonably appropriate at one time, though not so. a century, more or less, theRetofore.

Why treat judicial interpretation of law as a process of following changing ideals, social problems, and ideas, since its sole office is to solve uncertainties as to the intent at the time of the enactment ? Interpretation commences where begins uncertainty, — obscurity as to the meaning the lawgivers purposed putting into the enactment and succeeded, discover-ably, in expressing, literally or inferentially. In short, the gist of the matter is the intent when the law was made, not what one can make the language say in a different environment from that of its origin to accomplish a .desired purpose. No bending is permissible for the latter purpose, but for the former the very letter may have to give way to the spirit. State ex rel. Heiden v. Ryan, 99 Wis. 123, 74 N. W. 544; State ex rel. Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Commission, 137 Wis. 80, 117 N. W. 846; State ex rel. McGrael v. Phelps, 144 Wis. 1, 128 N. W. 1041. The expounder is to “look to the whole and every part of the law, to the intent apparent from the whole, to the subject matter, to the effects and consequences, to the reason and spirit, and thereby ascertain the ruling idea present” in the lawgiving body’s mind at the time of the enactment, and then, so far as such idea can reasonably be spelled out of the enactment, give effect to it though it violates the letter. Wis. Ind. School v. Clark Co. 103 Wis. 651, 659, 79 N. W. 422.

True, the constitution is a very human document in the sense that it is a collection of words recognizing, characterizing, and guaranteeing the natural rights of man, — all that are essential to public welfare in the social state, but it is not so in the sense of creating such rights. The right to life, to liberty, to happiness, to equality one with another, are not of human creation. They are of Divine origin, though by human instrumentality some one or more of them might be taken away. It is to prevent that, in the main, the constitution was framed. So anything not expressly prohibited which reasonably conserves those God-given rights, is within its saving grace. Anything which clearly or materially impairs or destroys any one of them, is condemned by it. It were better to inculcate the idea that it is not subject to change with the change of times and conditions, though such new conditions, by logical process, may well be the deciding factor as to whether legislative means resorted to for a particular end are within or without the unchangeable constitutional principles. Manifestly it must have been the latter conception of the constitution which so inspired statesmen of the first century of the republic with veneration for it. That might well have inspired Webster to love it, “to have a profound passion for it,” to “cherish it day and night,” to “live on its healthful saving influence,” and to “trust never, never to cease to heed it until” he should “go to the grave of his fathers,” to “earnestly desire not to outlive it.” It is good to draw inspiration from those lofty sentiments. I would not by word or deed, to any extent, give rise to the thought that tbe ancient dignity of onr system, in judicial conception here, bas changed.

At no period bas appreciation of tbe great work of tbe Fathers been more important than now. We need to sit anew, in thought, at their feet, — revive knowledge that tbe result was wrought by a body of men, — representatives of tbe great seats of learning of tbe English-speaking race of two hemispheres and otherwise men of broad experience, many of whom had been students of all federal governments of all prior ages in preparation for the special task, — as the historian declared, “the goodliest fellowship of lawgivers whereof this world has record,” — a body dominated by specialists, inspired “by ennobling love for their fellow men,” and the thought that they wrought, not for their age alone, but for the ages to come, and, so, sought to avoid the infirmities of previous systems of government by the people, by carefully providing that no change in letter or spirit should occur except in a particular and most deliberate and conservative way.

Appreciating that the report of this case will be widely read and commented upon within and without the field of judicial administration, I particularly desire to aid in creating and promoting correct impressions respecting the dignity of the abolished defenses and the responsibility of courts for their existence.

True, such defenses are of judicial origin, hut not as that term, without explanation, might be understood by laymen. They are so in the same sense that a large part of the law upon which rights and remedies dependáis of such creation. Nevertheless, all such is as much the law of this state, to be respected by the courts, as any part of the constitution or any act of the legislature. It did not originate with the courts of our age or century. It has not been within the competency of this court at any time to change it. The defenses in qriestion became a part of the law of the mother country through its judicial administration long before the Revolution. The law of such country, so far as adaptable to our conditions here, was adopted when our independent government was formed and became the common law of this country. It was in full force in the territory of Wisconsin when our state was admitted into the Union. All officers were sworn to maintain it,- — that part relating to the law of negligence as well as the rest, — and were bound to do so with as much fidelity as if incorporated into the written law. When the constitution was adopted the unwritten law was substantially given the cast of written law and as such firmly entrenched as fundamental, subject to legislative change, by sec. 13, art. XIV, of the constitution in these words: “Such parts of the common law as are now in force in the territory of Wisconsin, not inconsistent with this constitution, shall be and continue part of the law of this state until altered or suspended by the legislature.”

Every judge of every court has been sworn to maintain the common law as thus entrenched in our system till changed by the legislature. So from the viewpoint of the present, the law of negligence, — including the defenses in question,— does not lose in dignity when compared with an act of the legislature, because ages ago it had judicial origin. It was, as we have seen, with deliberation adopted by the people when they organized our state government. No court in our time has had competency, we repeat, to change or create or destroy in that field. Power in that regard was expressly reserved to the legislature. It has been free to act in the matter, within such reasonable limits as not to violate guaranteed rights, for over sixty years, while the courts have been powerless to do more than to determine, to the best of their ability, the law as fundamentally adopted, or subsequently changed, by the lawmaking power, and apply it.

Under the power reserved to the legislature as aforesaid, it was competent for it to abolish the defenses in question and to do it in such a way as to create inducement for employers to, voluntarily, become parties to the new system designed to better conserve human life and human happiness. Call the method “constitutional coercion,” if thought best. That casts no discredit upon the method, for where coercion is necessary reasonable coercion is legitimate, no guaranteed rights being infringed upon.

It is needless to add that I heartily indorse all said in the court’s opinion regarding the importance of the legislation which has received approval. May it be the beginning of a well rounded out constitutional system, making every one who consumes any product of labor for hire pay his proportionate amount of the cost of the creation representing the personal injury misfortunes of those whose hands have enabled him to secure the objects of human desire, thus minimizing the sufferings which axe the natural incidents of industry and ■should be borne, so far as they represent pecuniary sacrifice, by the mass of mankind whose desires are administered to by such industry.

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Concurrence Opinion

The following opinion was filed November 22, 1911:

Case Details

Case Name: Borgnis v. Falk Co.

Court Name: Wisconsin Supreme Court

Date Published: Nov 14, 1911

Citation: 147 Wis. 327

Court Abbreviation: Wis.