175 Iowa 245 | Iowa | 1915
Appellant insists that the act is violative of the Constitution of the United States and of the state, because its provisions deny him the right to make said defense, and to have it tried by jury. If the act does not take these rights from defendant, the claim that taking them is a violation of the fundamental law is disposed of. A statute is not unconstitutional because a court misunderstands it.
Does the act deprive the employer who elects to reject the act of the right of submitting to a jury the defense that it was wholly guiltless ? While, as will presently be seen, appellee overlooks the effect of the concession made by him, he does and should concede that, before the act, the master had the right to make this defense, and still has, unless the act has taken it from him. We must, then, turn to the act itself. It provides that the employer may hereafter not avail himself of either or all of the following matters:
1. That the employe “assumed the risks inherent in, or incident to, or arising out of his or her employment.”-
2. Assumed “the risks arising from the failure of the employer to provide and maintain a reasonably safe place to work.”
3. Assumed the risks “arising from the failure of the employer to furnish reasonably safe tools and appliances.”
4. That the employer “exercised reasonable care in selecting reasonably competent employes in the business.”
Of the defenses so taken away, two, those we have numbered 2 and 3, involve the confession of specified acts of negligence on part of the employer, and an avoiding them with claim that the employe has so conducted himself as that he may not complain of injuries arising from such acts of negligence. Manifestly,' these provisions but take away a shield 'against negligence committed by the employer. No law which merely denies the right to excuse a specified negligent act which has been committed can have any bearing on whether it be a defense that no negligent act has been done.
Eliminating the defense that the master used reasonable care to insure competent fellows for the servant is no provision the master shall pay though wholly without fault. It merely provides that proper care in one named respect alone shall not be a defense.
Taking away the defense that the injury was caused by the negligence of a co-employe does just what it does. It provides merely that the employer may not be excused because one of his servants negligently injured another — a provision which leaves entirely open whether there remains the defense that the injury is due neither to the fault of the fellow servant nor to a fault of the employer.
Nothing thus far adverted to has attempted to make the employer pay damages for injuries suffered in and because of employment given by him, where he is in no manner blameable for such injury. If the act itself has created such absolute liability, it must be done, so far as anything like doing it in terms is concerned, by that part of it which is:
“It shall be presumed [A] that the injury to the employe was the direct result and growing out of the negligence of the employer; [Bj and that such negligence was the proximate cause of the injury; and in such cases the burden of proof shall •rest upon the employer to rebut the presumption of negligence.” See. 2477-m (Par. 4), Code Supp., 1913.
This is not a provision the employer has not the right to show that he was wholly free from blame, but that he must take the affirmative upon the claim that he is blameless; that the employe need not prove that the employer was at fault, but the latter must show he was not. That no more than this was intended is, we think, clear, because:
2. A consideration of other provisions in pari materia strongly indicates that there was no purpose to create absolute liability. For instance, Section 7 is that, if the injury is caused by a stranger and the master is made to pay compensation, he may recover over of the stranger whose fault is responsible for the injury.
4. It is not a natural construction that a statute has carefully defined how that shall be proven which it declares is no longer a defense; that it prescribes how a defense shall be established and, also, that such defense shall not be asserted; that a presumption of fact which the statute says may be rebutted establishes a liability, incontestably.
1. The words which declare presumption as to, and the burden of proof on, the absence of negligence on part of the employer, are addressed to cases that may arise under Section 41, Chapter 106, Acts of the, Thirty-fourth General Assembly. This chapter deals with the duty of a miner to properly support the roof of his work chamber and the counter-duty of the employer, and has provision as to visitation of the place of work, and giving proper instructions.
The Compensation Act deals with many employers and employes other than those connected with mining; and the provisions of its Section 4 are limited to cases in which the employer rejects the Compensation Act of which Section 4 is a part.
Said Chapter 106, Acts of the Thirty-fourth General Assembly, is not a workmen’s compensation act, and has no reference to the subject of compensation. Section 41 thereof is, in the rough, a regulation confined to the narrow subject of the duties of the mine foreman or pit boss. . And neither Section 41 nor all of the chapter depend on the rejec
Each of these defenses is eliminated by the act. As will presently be seen, the appellee also argues that the provision as to presumption and burden of proof is mere surplusage, because the act eliminates assumption of risks which are inherent in, incidental to or arising out of the employment. Manifestly, both positions cannot be sound. If taking away the defense of assuming the risks inherent to the employment makes mere surplusage of provisions as to presumptions of negligence against the master and his burden of proving freedom from negligence, then these provisions cannot be accounted for with the claim that they are not idle because they may operate on defenses such as assuming the risk of negligent fellow servants. If the elimination of one assumption of risk makes the provisions of Section 4 waste words, then the taking away of another assumption of risk cannot
If the elimination by Section 1 of three specified assumptions of risk which arise from default of the employer is to mean that the legislature thus exhausted the entire field of assuming the negligence of the employer, and that, consequently, the further provision of the section which takes away
This contention presupposes, too, what is contrary to common knowledge, that injuries arising from causes not inherent in, or incidental to the employment, and not due to the fault of the employer, do occur.
B.
Again, such argument presupposes that, whenever an employe has been denied recovery on the ground that his injuries arose from assuming such inherent risks, it was so universally a mere holding that the master was no contributor to the injury as that the legislature must have understood, when it took away the defense that there was such assumption, that it was eliminating the defense that the master had in no degree contributed.
It is true it has been held the servant may not recover where his injury is due to inherent risks assumed by him, because allowing such recovery would compel the master to pay for injuries for which he was not to blame. In Ives v. South Buffalo R. Co. (N. Y.), 94 N. E., at 433, right column, the New York Compensation Act is held to be invalid because the abolition of the defense of assumed inherent risks operates to dispense with proof that the master was negligent. This reasoning is sustained in 3 Labatt (2d Ed.), Sec. 1186a, p. 3188; 5 Labatt; Sec. 1647, p. 5047; and in Webb’s Pollock on Torts (Enlarged American Edition), page 196. But it is not sufficient that this is the holding of some authorities, nor
Here, as elsewhere, many texts and decisions are cited by way of illustration and argument — to point out, for instance, what the holdings on a subject are in other jurisdictions, to show that in those jurisdictions a position more drastic than the one we take is sustained. Unless it is said here, in terms, that references to such are an approval or adoption of them for this jurisdiction, our reference to or analysis of them must not be construed to mean that these shall be held to rule similar controversies when presented here.
The great preponderance does not place the defense upon the footing of a plea that the master should not pay for what he is not to blame for.
It is held in Bria v. Westinghouse, 117 N. Y. S. 195, that “the very doctrine of assumption of risk by a servant has reference to risks which exist by the negligence of the master, i. e., by his failure to use reasonable care.” Schmitt v. Hamilton Mfg. Co., 115 N. W. 353; Zentner v. Oshkosh Gaslight Co., 112 N. W. 449; Corrigan v. West Div. S. S. Co. (Wis.), 113 N. W. 441; and Walaszewski v. Schoknecht, 106 N. W. 1070, all decided by the Supreme Court of Wisconsin, alb
“It should be noted also that statutes which in terms abolish the doctrine of assumption of risk as a defense go no further than to abolish the defense where the servant is injured by reason of, the master’s negligence, and do not abolish assumption of risk where the master has not been negligent.”
In Holmes v. Mather, L. R., 10 Ex., at page 267, it is suggested that the defense rests both upon the absence of fault on part of the one whose act causes an injury, and the inability to recover for that which arises from taking ordinary risks. And other eases found themselves upon a dual basis, i. e., want of fault on part of the master, and denial of the right to recover for what flows from taking the ordinary and inherent risks of a calling. See Jenkins v. Phoenix Const. Co., 129 N. Y. S. 937; Southern R. Co. v. Foster (Va.), 69 S. E. 972. While the Ives case, supra, holds that the elimination in toto of this defense condemns the New York act because it makes the master pay when he is not in fault, it clearly indicates that there exists an assumption of risks due to the master’s negligence, which the legislature may abolish as a defense, there being in fact a New York statute which does entirely abolish such defense. In Martin v. Des Moines Ed. L. Co., 131 Iowa, at page 735, we say, arguendo, while speaking to the question of pleading with reference to burden of proof, and as to what must be affirmatively pleaded, that the expression “risks naturally incident to or inherent in the employment” excludes the idea of negligence. But in the same case, at page 736, we do recognize that, where one remains in service after he knows, or ought to know, his dangers, and does so without promise of remedy, this, also, constitutes an “assumption” — that of assuming the master’s negligence — which bars, recovery.
Assumption of risk, waiver, and contributory negligence have been treated as interchangeable in Alabama —Eureka Co. v. Bass, 81 Ala. 200; and so of Donahue v. Enterprise R. Co., 32 S. C. 299 (11 S. E. 95); and also of Missouri—see Thorpe v. Missouri Pac. R. Co., 2 S. W. 3; Alcorn v. Chicago & A. R. Co., 18 S. W. 188; Bender v. St. Louis & F. R. Co., 37 S. W. 132.
In Schlemmer v. Buffalo, R. & P. R. Co., 205 U. S. 1, the doctrine is put upon peculiar ground — in effect, that, when the servant assumes the inherent risk, he may not recover, because so assuming is a species of negligence on his part; that the assumption in the broad sense “obviously shades into negligence as commonly understood,” and that “the preliminary conduct of getting into the dangerous employment or relation is said to be accomplished by the assumption of the risk.” The same case indicates strongly that there is little substantial difference between this assumption and contributory negligence, and the text of law writers, and the reports, are full of positive declarations that the two are practically interchangeable.
In Greef Bros. v. Brown (Kans.), 51 Pac. 926, assumption
If assuming, the risk amounts to contributory negligence, it cannot be that it ássumes only that for which the master is blameless, because there cannot be contributory, negligence unless there be negligence-to contribute to. .
We say, in Miller v. White Bronze Mon. Co., 141 Iowa, at 712, that “of course, facts showing contributory negligence may also prove assumption of risk,;”.. We say in-the. same case that ‘ ‘ assumption of risk is, in effect, á waiver of defects and dangers, and a consent on the part of the employe to assume them.” And that “this consent is held to take away the injurious character of defendant’s act,and is bottomed on the, old maxim, Volenti non fit injuria — that to which a party assents is no wrong.” Substantially, this is the holding of Thomas v. Quartermaine, L. R., 18 Q. B. 685, and in Rase v. Minneapolis, St. P. & S. S. M. R. Co. (Minn.), 120 N. W. 360.
In Yarmouth v. France, L. R., 19 Q. B. 647, it is said that, before the Employer’s Liability Act, there was this condition in the act of hiring,: that if there was a defect in the premises or machinery which was open and palpable, whether the
Mr. 'Labatt, in Vol. 5 of his work (2d Ed.), See. 1989, states that the principle embodied in the maxim is recognized, and will preclude recovery in circumstances appropriate for its application; and the following eases hold that the maxim is to be regarded as the embodiment of a comprehensive principle of which the servant’s contractual assumption of common risk is one application: Gibson v. Pacific R. Co., 46 Mo. 163; Louisville, N. O. & T. R. Co. v. Conroy (Miss.), 56 Am. Rep. 835; Devitt v. Pacific R. Co., 50 Mo. 302; Mundle v. Hill Mfg. Co. (Me.), 30 Atl. 16; Fitzgerald v. Connecticut R. P. Co. (Mass.), 29 N. E. 464; Creswell v. Wilmington & N. R. Co. (Del.), 43 Atl. 629.
And in Choctaw, O. & G. R. Co. v. Jones (Ark.), 92 S. W. 244, it is held that the defense of assumed risk comes within the principle expressed by the maxim.
' Some of the cases put it on the ground that it is a contract in the nature of a waiver in advance of damages that may accrue.
Very many cases hold that this so-called assumption of risk inheres in the contract of employment. Martin v. Des Moines Ed. Light Co., 131 Iowa 724; Miller v. White Bronze Monument Co., 141 Iowa, at 712; 8 Thompson’s Commentaries on Law of Negligence, White’s Supplement, Sec. 4608; Lovell v. De Bardelaben Coal & Iron Co. (Ala.), 7 So. 756; Faulkner v. Mammoth Mining Co. (Utah), 66 Pac. 799; Smith v. Baker,
In St. Louis Cordage Company v. Miller, (C. C. A.) 126 Fed. 495, the syllabus written by the circuit judge asserts that it rests on contract; the opinion rests it upon contract, and upon volenti non fit injuria, and in Glenmont Lumber Co. v. Roy, (C. C. A.) 126 Fed. 524, the same judge rests it on the “right to contract;” and see Narramore v. Cleveland, C. C. & St. L. R. Co., (C. C. A.) 96 Fed. 298, as construed in Green v. Western Am. Co. (Wash.), 70 Pac., at 314, 315, left column. On the other hand, it is held that the doctrine is not based on contract. Rase v. Minneapolis, St. P. & S. S. M. R. Co. (Minn.), 120 N. W. 360; Denver & R. G. R. Co. v. Norgate, (C. C. A.) 141 Fed. 247, 253; Choctaw, O. & G. R. Co. v. McDade, 24 Sup. Ct. Rep. 24; Texas & P. R. Co. v. Archibald, 18 Sup. Ct. Rep. 777; Central Vt. R. Co. v. Bethune, (C. C. A.) 206 Fed. 868; Worden v. Gore-Meehan Co. (Conn.), 78 Atl. 422.
We say, in Martin v. Chicago, R. I. & P. R. Co., 118 Iowa, at 151, that as to whether one who undertakes work with knowledge that his employer is ignoring the ordinance and continues at work without complaint, after ascertaining this, assumes the risk of the danger incident to this violation, the authorities are in sharp conflict; that those holding that such a risk is never assumed go on the theory that, as an assumption of risk is based on an. implied contract, it would be opposed to sound public -policy to prevent one to agree in advance to a violation of a statute or city ordinance; that others say assumption of risks is a term of the contract of employment by which the servant agrees that dangers of injury, obviously incident to the discharge of the servant’s ■ duty, shall be at the servant’s risk; that, on this theory, no right of action arises for the servant at all, because,' under the terms of the employment, the master violates no legal duty to the servant in failing to protect him from dangers the risk of which he agreed expressly to assume; and that, therefore,
Again, it is supported on certain grounds urged in economic theories, and at other times is imputed because of a conception of justice and convenience.
Now it is clear to demonstration that, whensoever it is held that the defense of assumption of risk is based on the doctrine that an injury is not done to the willing, and that to which a person assents is not esteemed, in law, an injury, or that it presents the defense of contributory negligence, or is held to be something other than a claim that the master is wholly free from fault, the defense is not rested upon the assertion that the master is free from fault, but that the servant made a venture with his eyes open to its possibilities, and must not complain of what results therefrom.
The foregoing all tends to demonstrate that the defense of assumption of inherent risks has been put upon so many bases as that, where the legislature expressly provides methods for controverting whether the master was shown to be wholly blameless, we should not impute to it a construction that the defense of assuming risks inherent to an employment is equivalent to a claim that an injury was due to no fault of the master. We should not impute this construction unless no other is possible. So far from finding this to be the situation, we think everything indicates that no such definition of the defense was in the legislative mind when it enacted the legislation now in hearing.
C.
In Parrot v. Wells-Fargo Co., 15 Wall. (U. S.) 524, the plaintiff, who was the common landlord of the defendants and other tenants, sought to hold the defendants liable for damages occasioned to the premises occupied by the other tenants by an explosion of nitro-glyeerine, which had been delivered for shipment to the defendants as common carriers. It appeared that the defendants were innocent, ignorant of the contents of the package containing the dangerous explosives, and that they were guilty of no negligence in receiving or handling them. Upon these facts, the Federal Supreme Court held that it was a case of unavoidable accident, for which no one was legally responsible.
In Ohio & M. R. Co. v. Lackey, 78 Ill. 55, the question was whether the railroad company was liable under a statute which provided “that every railroad company running cars within this state shall be liable for all the expense of the coroner and his inquest, and the burial of all persons who may die on the cars, or who may be killed by collision or other accident occurring to such cars, or otherwise.” The act was held invalid because it attached this liability in cases where no default or negligence of any kind on part of the railroad company existed.
To the same effect are numerous cases arising under statutes imposing on railroad corporations absolute liability for killing or injuring animals upon their right of ways by running over them, which all hold such to effect a deprivation of property without due process of law. Jensen v. Union Pac. R. Co. (Utah), 21 Pac. 994; Zeigler v. South & N. A. R. Co., 58 Ala. 594; Birmingham Min. R. Co. v. Parsons (Ala.), 13 So. 602; Bielenberg v. Montana U. R. Co. (Mont.), 20 Pac.
And while statutes compelling fencing upon pain of additional liability are valid, it is said by Black, in his work on •Constitutional Law (2d Ed.), page 351, that even such statutes cannot go beyond imposing a penalty “in eases where the .fault lies at the door of the company. If the law attempts to make such companies liable for accidents which were not caused by their negligence or disobedience of the law, but by the negligence of others, or by uncontrollable causes, or does not give the company opportunity to show these facts in its own defense, it is void. ’ ’ See Steffen v. Chicago & N. W. R. Co. (Wis.), 50 N. W. 348; Lewis v. Flint & P. M. R. Co. (Mich.), 19 N. W. 744; Bennett v. Ford, 47 Ind. 264; Brown v. Collins, 53 N. H. 442; Gibbs v. Tally (Calif.), 65 Pac. 970; Denver & R. G. R. Co. v. Outcalt (Colo.), 31 Pac. 177; South & N. A. R. Co. v. Morris, 65 Ala. 193; Chicago, St. L. & N. O. R. Co. v. Moss, 60 Miss. 641; Birmingham, Min. R. Co. v. Parsons (Ala.), 13 So. 602.
We have no occasion to decide, and therefore express no opinion on, whether making the master liable absolutely is within the power of the legislature. All we do is to point out that, in the light of the cases to which we have referred, it was, at the time when the Iowa legislature acted, at least a :matter for reasonable difference of opinion whether holding the employer to respond when wholly free from blame is a valid exercise of legislative power. Upon this premise, we apply elementary rules of statute construction, to wit, that all doubts shall be resolved in favor of constitutionality (Dutton Phosphate Co. v. Priest [Fla.], 65 So. 282; Cincinnati, W. & Z. R. Co. v. Commissioners, 1 O. St. at 85), and that it is the duty of the court to give a statute such construction, if possible, as will not render it unconstitutional. Santo v. State, 2 Iowa 165, 208; State ex rel. Weir v. County Judge, 2 Iowa 280; Duncombe v. Prindle, 12 Iowa 1; Iowa Homestead Co. v. Webster County, 21 Iowa 221.
And in the words of the Supreme Court of the United States, in Harriman v. Interstate Com. Commission, 211 U. S. 407:
"If we felt more hesitation than we do, we still should feel bound to construe the statute not merely so as to sustain its constitutionality, but so as to avoid a succession of constitutional doubts, so far as candor permits.”
We must assume that the legislature had some knowledge of the state of the case law when it acted. Construing its act with desire to hold it valid, we should further assume that the law makers took this case law into consideration, and intended to avoid the doubts arising upon such consideration — intended to enact what was clearly valid rather than what seemed at least of questionable validity. We therefore should and do hold that, as the defense of assuming inherent risks of employment does not necessarily mean assuming injury for which the employer is blameless, and no other injuries, and as holding that such assumption does mean such injuries would be a construction which might raise doubts as to the validity of the act, it is our duty, under said rules of construction, to hold that the abolition of said defense of assumption did not enact that utter want of fault on part of the employer is no defense, and so make useless plain and apparently well-considered provisions of the same statute.
It will not be out of place to repeat here the text in 3 Labatt (2d Ed.), Sec. 1186a, pp. 3189, 3190:
"It should be noted that statutes which in terms abolish the doctrine of assumption of risk as a defense go no further*270 than to abolish the defense where the servant is injured by reason of the master’s negligence, and do not abolish assumption of risk where the master has not been negligent. ’ ’
We are abidingly of opinion that the act did not abolish the assumption of risk last referred to in the quotation.
The entire argument resolves itself into demonstrating that the legislature has and has been held to have the power to create absolute liability; that it is necessary and salutary that it should create it; and that the Constitution should be
“The right of property rests, not upon philosophical or scientific speculations, nor upon the commendable impulses of benevolence or charity, nor yet upon the dictates of natural justice. The right has its foundation in the law.”
That can be made or changed by the people, but not by courts.
“In a government like ours theories of public good or necessity are often so plausible or sound as to command popular approval, but courts are not permitted to forget that the law is the only chart by which the ship of state is to be guided.”
2.
Not only are these contentions irrelevant, but some of them are open to criticism that goes deeper than irrelevancy.
The rules for dealing with the fundamental law that are urged upon us present, in effect, an assertion that the judges of the present day may repeal the Constitution whenever, in their opinion, that instrument is out of harmony with “the light of twentieth century conditions and ideals.” This is akin to the other theory that judges should create law whenever convinced that it is salutary and demanded by the people.
We cannot close this subject with words more apt than those written by Mr. Justice Marshall, in concurring with the decision which sustains the validity of the Wisconsin Compensation Act (Borgnis v. Falk, 133 N. W. 209):
“The remarks on the court’s opinion which may suggest*273 to some that a different meaning is to be read out of the 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 the particular environment — probably was not so intended, but I sense danger of a contrary impression going out. Such ability to bend the fundamental law in the name of judicial interpretation, — the idea that an eighteenth century construction for an eighteenth century condition may not, and at the hands of the court does not have to, fit a twentieth century condition, — has been advanced by some, but not significantly at least by any court. On the contrary, it has met with universal condemnation. That it is wrong, every man of eminence that has ever written upon the subject in the past, as well as the very nature of the case and the very logic and limitations of judicial interpretation, bear witness. The fertile method of dealing with the Constitution has been characterized as one which has ‘furnished a mode of argument which would on the one hand leave the Constitution crippled and inanimate, or on the other give it an extent of elasticity subversive of all rational boundaries.’ Story, Constitution, 389.”
We concede freely that we should apply anything that is in the Constitution to conditions now existing, and that it was prophetic enough so that it may apply to what may not have existed when it was made. But we deny that we can put things into the Constitution or use it improperly because our present needs might be advantaged by so doing.
The court erred in denying the defense that defendant was wholly free from fault.
Division II.
Having held that the act does not take away the defense that the master was wholly free from negligence, and that,
I. There are some matters presented which should not be allowed to clog the disposition of what is truly here for decision.
It is the tendency of arguments asserting that legislation is violative of constitutions to be hypercritical, and the one at bar is not exceptional in this regard. In this, an appeal by an employer, it is urged that the right of rejection by the employe is unduly clogged; first, because of the requirements concerning the form and verification of the notice; and second,
As is said in Dutton’s case (Fla.) 65 So. 282, attacks upon the constitutionality of a statute will not be sustained on the ground that it may be so construed as to invade private rights secured by the Constitution, and that he who makes the attack must show that, in the case he presents, the effect of applying the statute is to deprive him of a constitutional right.
2.
Workmen’s acts and the like may validly interfere with existing contracts, if it be done by a proper exercise of the police power. See Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549; Philadelphia, B. & W. R. Co. v. Schubert, 32 Sup. Ct. Rep. 589; Sexton v. Newark Dist. Tel. Co. (N. J.), 86
There is no limit to the injection of academic discussions into an arraignment of a statute, if once the field of possibilities merely be entered. But the fundamental and justified reluctance of the judiciary to sit in judgment upon the acts of its co-ordinate readily accounts for it that it is the well-settled rule to indulge in no such interference by theorizing upon strained contingencies. In the language of Railway v. Commissioners, 1 O. St., at 84, approving City of Lexington v. McQuillan’s Heirs, 9 Dana (Ky.) 513:
“We should be justly chargeable with wandering from the appropriate sphere of the judicial department, were we, by subtle elaboration of abstract principles and metaphysical doubts and difficulties, to endeavor to show that such a power may be questionable, and on such unstable and injudicial ground to defy and overrule the public will, as clearly announced by the legislative organ.”
In Noble State Bank v. Haskell, 31 Sup. Ct. Rep. 186, the court said:
“In answering that question we must be cautious about pressing the broad words of the 14th Amendment to a drily logical extreme. Many laws which it would be vain to ask the court to overthrow could be shown, easily enough, to transgress a scholastic interpretation of one or another of the great guaranties in the Bill of Rights. They more or less limit the liberty of the individual, or they diminish property to a eer*278 tain extent. We have few scientifically certain criteria of legislation, and as it often is difficult to mark the line where what is called the police power of the states is limited by the Constitution of the United States, judges should be slow to read into the latter a noiumus mutare as against the lawmaking power.”
Again, in the same case, the court was asked whether the state could require all corporations or all grocers to help guarantee each other’s solvency, and where the line was to drawn, and the answer was: “The last is a futile question and we will answer the others when they arise.”
We should consider practical experience as well as theory in deciding whether a given plan in fact constitutes a taking of property, or something else that is in violation of the Constitution.
Division III.
The constitutionality of the act is challenged, speaking in general terms, because:
1. It interferes with the right to contract, generally, and, specifically, by fixing a scale of compensation to be made by the employer to the injured employe.
2. It makes arbitrary discriminations by means of improper classifications, and is, so, improper class law.
3. It improperly delegates judicial power and substitutes a hearing and determination which is not due process of law for the right to have due hearing in a proper court.
4. It misuses the taxing power in providing a system by which the employer takes out insurance to assure payment of compensation to his employe.
5. On the whole, it denies due process of law; deprives the defendant of property without due process, and abridges the privileges and immunities of the defendant as a citizen of the United States.
In essence, these are guards against contracts to reduce liability for negligence, and, so far from being an invasion of the right to contract, are precautions against allowing the employer to first accept the act and then avoid its provisions by subterfuge. It is no interference with the right to make agreement that the legislature enacts what it thinks will prevent the breach of an agreement entered into. What is taken away is not the right to bargain, but the right, by deviousness, to break the bargain made.
Aside from that the right to make contracts is not infringed by statutes aimed to insure compliance with contracts entered into, it should not be claimed at this late date that the legislature has no power to prevent contracts between master and servant which fix a low price for, and so stimulate, the killing and maiming of men — -contracts which the employe may feel compelled to make to obtain or retain employment.
Section 2071 of the Code, as amended by Chapter 49, Acts of the Twenty-seventh General Assembly, and Chapter 124, Acts of the Thirty-third General Assembly, which is not questioned, expressly provides as to employes of railroads, “No contract which restricts such liability shall be legal or binding.” This phase of th,e statute has had the approval of this court and of the Supreme Court of the United States. In the McGuire case, which was sustained by the Supreme Court of
2.
Section 3 provides that if, by or on behalf of the employer, any request, suggestion or demand be made that an employe or one seeking employment shall exercise his right to reject the act, there shall arise a conclusive presumption that the employe or applicant was unduly influenced to exercise this right; that the rejection made under such circumstances shall be conclusively presumed to have been procured through fraud, and be null and void.
Section 19 is that any contract or agreement made by any employer, or anyone acting for him, with any employe or other
Both these are charged to interfere with the freedom of contract. The first, which makes fraudulent rejection by the servant, if influence has been brought to bear by the employer, is nothing more or less than an exercise of the right of public self-defense. Assuming that there can be a valid compensation act, certainly the legislature may make provision against having the legislative intent as to such act thwarted. To put the ban upon such influences interferes with no right of contract, but simply heads off one method of evading or crippling the act. One underlying purpose of the statute is to promote acceptance by the employe. No valid right is infringed by making taboo the employment of methods that might press the employe to reject. The legislative policy with us is to discourage the sale of intoxicating liquors, and we have a statute, the validity of which has not seriously been questioned, that if one obtain the sale of liquor to him, in violation of law, and pay therefor, he may recover back the payment ; if he has not paid, he may defeat the seller’s suit for payment. No one thinks these infringe the right to contract; they are proper devices against interference with the policy of the law.
In view of the provision that all agreements to lessen the statute liability are wholly void, the provision concerning the presumption as to agreements made within twelve days after injury is of doubtful need or use. If such agreement made within the twelve days is not for less than the statute compensation, the act does not condemn it. If it is for less, said other provisions make it absolutely void, rather than presumptively fraudulent. But be that as it may, it again is an exercise of proper legislative policy to guard against the chance of obtaining contracts unfair to the employe, at a time when the legislature may well assume that his physical distress and possible financial condition make him unusually
To now, we have dealt with the question now'in review as though there were no poWer in the legislative branch to interfere with the making of a contract, unless its making is in some clear sense a defeat of legislative policy, exercised in forbidding just such contract. Whatever of this aspect the discussion has so far worn is due to an assumption for the sake of argument.
There is power in the legislature to abridge the right of contract in the exercise of what may be termed the general power of community self-defense&emdash;the police power&emdash;a power already herein adverted to.
3.
“The 14th Amendment, however, does not guarantee the citizen the right to make within his state, either directly or indirectly, a contract the making whereof is constitutionally forbidden by the state.” Hooper v. California, 155 U. S. 648.
The following acts have been sustained, against objection that they impinge upon the protection of cortracts and of the right to contract afforded by the Constitution of the United States: A statute fixing minimum charges for the storage of grain and prohibiting contracts for larger ones (Munn v. Illinois, 94 U. S. 113); prohibiting attorneys from contracting for a larger fee than $10 for prosecuting pension claims has been held to be a valid exercise of the police power (Frisbie v. United States, 157 U. S. 160); so of a statute making it unlawful for employes to work in laundries between the hours of ten P: M. and six A. M. (Soon Hing v. Crowley, 113 U. S. 703); an act making it unlawful for any contractor engaged upon a work of public improvement to require or permit any employe to work more than eight hours per day (Atkin v. State of Kansas, 24 Sup. Ct. Rep. 124); a statute which forbids a railway employe to contract to assume the risk of hazardous employment or unsafe place to work (Kilpatrick v. Grand Trunk R. Co. [Vt.], 52 Atl. 531); or contract excluding defense of other assumptions of risk (Missouri, K. & T. R. Co. v. Bailey [Tex.], 135 S. W. 601; El Paso & S. W. R. Co. v. Alexander [Tex.], 117 S. W. 927); preventing miners employed at quantity rates from contracting for wages upon the basis of screened coal, instead of the weight of the coal as originally produced in the mine (McLean v. State of
In Carter v. Craig (N. H.), 90 Atl. 598, there is sustained an act imposing a tax on property passing by deed, grant, sale or gift made to take effect in possession or enjoyment after the death of the grantor, with purpose to prevent the use of such conveyances to avoid the payment of taxes on property passing by will, against objection that it is a limitation on the freedom of contract secured by the bill of rights.
In Cunningham v. Northwestern Imp. Co. (Mont.), 119 Pac. 554, there is sustained the right of the legislature to pass laws regulating an extra hazardous business, such as coal mining, and to provide for benefits in case of injury or death, .and this is put upon the ground that it involves an intention to reduce economic waste, to obviate breaches and dissensions between employers and employes, raises the standard of citizenship,, lowers the general burdens of taxation thereby, promotes peace, order and morals, and, ultimately, that such an act is a proper exercise- of the police power. Under Giozza v. Tiernan, 148 U. S. at 662, this reasoning upholds all enactments which promote the health, morals and education of the citizen, and good order. In Crowley v. Christensen, 137 U. S.
It may not be doubted that the exercise 'of the power must not be a mere pretense, and that its exercise is sanctioned only for uses properly within the scope of and the necessity for exercising the power — and that is all that may be claimed for the authorities that deal with the point, such as Cooley, Constitutional Limitations, Chapter 7; Winter v. Jones, 10 Ga. 190 (54 Am. Dec. 379); Railway v. Milwaukee, 97 Wis., at 422; Lawton v. Steele, 152 U. S., at 137; Yick Wo v. Hopkins,
It will be found that in the foregoing cases there were present laws or ordinances which were clearly a mere attempt to accomplish, in the guise of exercise of the police power, objects that were not a legitimate exercise of that power, or that the discussion proceeds upon what should be done when acts of the assembly or ordinances are of that character. None 'of this proves that “the entire chapter is unconstitutional and void (inter alia) because of being a false pretense merely.” That a duly enacted statute is a mere colorable use of the police power is surely not to be presumed. On the contrary, courts will presume that such act is a legitimate exercise of legislative power, and not an attempt to evade the Constitution. Hanly v. Sims (Ind.), 94 N. E. 401. The courts do not and should not readily find that the legislature entertained such purpose. In the case of McLean v. Arkansas, 211 U. S. 539, 547, it is held that a statute should not be set aside by the judiciary unless it “is unmistakably and palpably in excess of legislative powers. ” It is said:
“The mere fact that a court may differ with the legislature in its views of public policy, or that judges may hold views inconsistent with the propriety of the legislation in question, affords no ground for judicial interference . and it is not to be set aside because the judiciary may be of opinion that the act will fail of its purpose, or because it is thought to be an unwise exertion of the authority vested in the legislative branch of the government.”
In Lochner v. New York, 198 U. S. 45, an act regulating the hours of service- of employes in baking establishments; in Adair v. United States, 208 U. S. 161, an act prohibiting the discharge of a servant because he is a member of a labor union; in Street v. Varney Electrical Supply Co., 61 L. R. A. 154, a statute fixing a minimum wage of 20 cents an hour to
The manifest distinction is that the Iowa act leaves both employer and employe the liberty to accept or reject its provisions, and that its requirements in case of acceptance constitute a proper exercise of the police power — such exercise of it as would sustain compulsory acceptance.
As to this, we have to say, first, that such excepting has been quite generally sustained.
On complaint by a coal mining company
As we view it, substantially such differentiations as are here challenged have been sustained. Dirken v. Great Northern Paper Co. (Me.), 86 Atl. 320, sustains exclusion of those in domestic service and those engaged in agricultural pursuits; Deibeikis v. Link-Belt Co. (Ill.), 104 N. E. 211, the excepting those engaged in casual work and clerical and administrative employment in a branch of hazardous business. See Borgnis v. Falk (Wis.), 133 N. W. 209; Consolidated Coal Co. v. People of Ill., 22 Sup. Ct. Rep. 616. And see also, Soon Hing’s case, 5 Sup. Ct. Rep. 730; Ives v. South Buffalo R. Co. (N. Y.), 94 N. E. 431; Jacobson v. Commonwealth of Mass., 25 Sup. Ct. Rep. 358.
We shall see, presently, that the power to classify is primarily in the legislature, that the courts accord it the widest latitude in performing this function, and that a classification adopted by it will be sustained unless it is so palpably arbitrary as that there is no room for doubt that discretion has been abused by indulging in an unjustifiable discrimination. Certainly, we should not say the legislature discriminated thus in determining that there were substantial differences in hazard and situation between those within the act and household or domestic servants, farm laborers engaged in agri
On the other hand, there is nothing in the act to prevent those excluded from making contracts by which they may have all that the statute gives to those who accept it. There is nothing in the statute which prevents a farmer and his laborer from entering into contract that, if the laborer be injured in the course of the employment, the employer shall
If both those included and those excluded are each permitted to and can readily put themselves into the position of the others, there would seem to be, at most, a purely academic discrimination against either.
2.
3.
While it is undoubted that wholly arbitrary classification will not be sustained, such, for instance, as rests wholly on the nature of the employer’s business, when it should rest upon difference in the nature of the employment—Cleveland, C. C. & St. L. R. Co. v. Foland (Ind.), 91 N. E. 594; Indianapolis, T. & T. Co. v. Kinney (Ind.), 85 N. E. 954; or where the exaction of a peddler’s license is differentiated on whether the peddler be or be not a veteran of the Civil War—State v. Garbroski, 111 Iowa 496; or singling out from the general law of the state only such masters and servants as are railroad employers and employes; and though others are in like situation,—Chicago, M. & St. P. R. Co. v. Westby (C. C. A.), 178 Fed. 619, to which, however, Sonsmith v. Pere Marquette R. Co. (Mich.), 138 N. W. 347, 356, 360, runs counter, — yet these and others but settle that no discrimination which is palpably arbitrary and unreasonable will be sustained by the courts. But we get nearer to .the question in hand by looking into the cases in which confessed discriminations have been sustained, and the general rules upon which courts proceed in dealing with differentiations made by the legislature.
a. As to the general rules applicable, we find that in Gundling v. Chicago, 177 U. S. 183, it is declared that regulations of a lawful trade or business are of very frequent occurrence, and that “what such regulations shall be, and to what
b. It is not fatal that the act does not in legal effect cover the entire field subject to such regulation (Dutton v. Priest [Fla.], 65 So. 282); or singles out a particularly hazardous employment and subjects it to burdens not placed on other extra-hazardous employments (Cunningham v. Northwestern Imp. Co. [Mont.], 119 Pac. 554); or that it is limited to employes engaged in extra-hazardous work (State v. Clausen [Wash.], 117 Pac. 1101). In Cunningham’s ease, supra, it is held not to be an arbitrary discrimination that the act makes no difference between employers who are careful and others who are or may be careless. It does not avoid the act that it makes differences in the measure of damages. Minneapolis & St. L. R. Co. v. Beckwith, 129 U. S. 26. An act as to closing openings in floors has been sustained, although it distinguished between buildings in cities and buildings in villages as to some requirements, and distinguished between private residences and other structures as to the strength of supports required for joists. Chicago D. & C. Co. v. Fraley, 33 Sup. Ct. Rep. 715. In Field v. Barber Asphalt Pav. Co., 194
In Cargill Co. v. Minnesota, 180 U. S. 452, a law was sustained which required a state license of owners of elevators on railway right of ways, and not of owners of elevators not so situated. As said in Missouri Pac. R. Co. v. Mackey, 8 Sup. Ct. Rep., at 1163, it is simply a question of legislative discretion whether the same liability shall be applied to carriers by canal and stage coaches and to persons using steam in manufactures.
c. When legislation proceeds under any express power, say, to regulate the removal of causes, the discretion in applying the power and in excepting from the application of the statute is of the widest. McChesney v. Illinois Cent. R. Co., 197 Fed. 85, 86. And so of an exercise of the police power. Dutton v. Priest (Fla.), 65 So. 282. So there was sustained the singling out' railroads for a prohibition against letting Johnson grass or Eussian thistle go to seed. Missouri, K. & T. R. Co. v. May, 194 U. S. 267, 269. And so of a law confining what shall constitute a certain misdemeanor to acts of women between the ages of 15 and 30. People v. Coon, 67 Hun. (N. Y.) 523, 525.
d. It is not controlling that some inequality may be occasioned. Louisville & N. R. Co. v. Melton, 218 U. S. 36;
“Indeed, the very idea of classification is that of inequality, so that it goes without saying that the fact of inequality in no manner determines the matter of constitutionality.”
No rigid equality is required, and wide latitude by the courts is permitted in the discretion and wisdom of the legislature. Hayes v. Missouri, 120 U. S. 68; Bell’s Gap R. Co. v. Pennsylvania, 134 U. S. 232, 237; Orient Ins. Co. v. Daggs, 172 U. S. 557; Sonsmith’s case (Mich.), 138 N. W. 356, 360; Dutton’s case (Fla.), 65 So. 282.
e. It suffices if the differentiation “is practicable,”—Insurance Co. v. Daggs, supra,—and if the classification and discrimination is “judicious” — State v. Powers, 38 O. St. 54, 63.
While not without limit, there are inhibited only “clear and hostile discriminations against particular persons and classes, especially such as are of an unusual character, unknown to the practice of our governments.” Bell’s Gap case, supra. Laws exhibiting differentiations are not reviewable unless “palpably arbitrary” (Insurance Co. v. Daggs, supra); are “purely fanciful and arbitrary” (Matheson v. Minneapolis St. R. Co. [Minn.], 148 N. W. 71; wholly without a reasonable or practical basis (Dutton’s case [Fla.], 65 So. 282); “so manifest as to leave no room for reasonable doubt” (Sexton v. Newark Dist. Tel. Co. [N. J.], 86 Atl. 451). The courts have no right to interfere unless the classification made is so clearly arbitrary as to be violative of constitutional rights (Cunningham’s case [Mont.], 119 Pac. 554); may interfere only if it is arbitrary to unreasonableness and unjustly discriminative (Dutton’s case, 65 So. 282, 283); or where it is the plainly evinced legislative purpose to make unjust discrimination, or a false and unnatural classification has been resorted to for the purpose of giving a special law
In Jeffrey v. Blagg, 35 Sup. Ct. Rep., at 169, speaking to a classification under which certain defenses were left those who employed less than five, and taken from those who employed more than five, the Supreme Court of the United States said:
“This court has many times affirmed the general proposition that it is not the purpose of the 14th Amendment in the equal protection clause to take from the states the right and power to classify the subjects of legislation. It is only when such attempted classification is arbitrary and unreasonable that the court can declare it beyond the legislative authority. Lindsley v. Natural Carbonic Gas Co., 31 Sup. Ct. Rep. 337, and previous cases in this court cited on page 79. That a law may work hardship and inequality is not enough. Many valid laws, from the generality of their application, necessarily do that, and the legislature must be allowed a wide field of choice in determining the subject-matter of its laws, what shall come within them, and what shall be excluded. ’ ’
In Gundling’s case, 177 U. S. 183, the same court says:
“Unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law, they do not extend beyond the power of the state to pass, and they form no subject for Federal interference. ’ ’
It is an elementary principle in determining the constitutionality of a statute that any reasonable doubt must be solved in favor of the legislative action. Gates v. Brooks, 59 Iowa 510. The violation of the Constitution should be clear and apparent before the act may be declared void. Reed v. Wright, 2 G. Gr. 15. The power to set aside' a law is not to be resorted to unless the-, base be clear, decisive and unavoidable.
Surely, the excepting from the act said employes, and the claimed difference in consequences attaching respectively to rejection and acceptance by master and servant, are not so manifestly and palpably arbitrary, and such misuse of the conceded power to classify, as that we should hold the statute void on account of these differentiations.
It will be noticed that the condition precedent is that such insurance shall be maintained by “every employer, subject to the provisions of this act.” (See. 42.) While this clearly shows that no employer is compelled to insure unless he has accepted, and thus become subject to, the act, we shall, for present purposes, deal with this point as though such, employers as are named in the act were compelled thereby to perfect and maintain such insurance.
Concede, for the sake of argument, that this part of the statute works a taxation of the employer. Is there any fundamental objection to such a tax as this ? It is undoubted that the taxing power may not be used as a subterfuge to accomplish that which is not legitimately for the taxing power; undoubted that its exercise, no matter in what form, can be sustained only where the exaction is, in the sense of the law, for a public use. As is not unusual, the difficulty is not in ascertaining the rule, but in applying it. Why have such statutes as this been upheld as not being violative of the due process clause, and upheld generally?
A compulsory insurance law to provide workmen’s compensation by the method of insuring in a state fund has been sustained in the Clausen case (Wash.) 117 Pac. 1101, against the objection that it was violative of the due process clause of the Federal Constitution, and sustained as being a reasonable police regulation. What amounts to a compulsory tax, akin in principle to the taxation involved here, is upheld by the Supreme Court of the United States in Noble’s case (Guaranty of Deposit Act), 31 Sup. Ct. Rep. 186, and followed in Assaria St. Bank v. Dolley, 31 Sup. Ct. Rep. 189, upholding compulsory taxation of the banks concerned. Jensen v. Southern Pac. R. Co., the most recent pronouncement by the Court of Appeals of New York, 109 N. E. 600, 604, recognizes that the reasoning in the Noble ease sustains what may be called, taxation features of workmen’s compensation acts;' and the
An analysis of these decisions demonstrates that they proceed on the reasoning that the statute does not impose on the employer a liability to pay an employe or his dependents any sum of money whatsoever, but does require that he shall secure to all his employes compensation guaranteed by insurance — require that he do this under regulation by the state on penalty for failure to comply, a penalty imposed on the theory that he commits an unlawful act when he does that or omits that through which the employes and their dependents will suffer, and, so suffering, inflict an injury upon the state. They hold that compensation acts do not enforce individual liability growing out of contract, or liability for a tortious act or omission; that their basic aim is social justice; that they exercise a highly intelligent selfishness in recognizing that there is no ultimate advantage in obtaining products at too low rates on the fictitious basis that such fates include all the cost of the product, when, in truth, the selling price is below cost, because part of the cost is thrown upon the most helpless of the people, in the first instance, which “saving,” and more, is ultimately thrown upon the general community, in expense of litigation over accidents, of caring for pauperized victims of the accidents, and in the indefinable, but none the less real and serious, damage to the state growing out of distress and pauperism thus permitted to exist. We so reach the satisfactory conclusion that the only inquiry we need to address ourselves to is whether the so-called taxation involved in the maintenance of insurance be — if a tax, or, though a tax, a tax for a public purpose — sustained by the police power; and we think the cases answer in the affirmative, and that independent thought sustains them. •, \ f •
To paraphrase the inquiry, is such requirement a means of promoting the public welfare; is the premium to be paid an exaction for public use when exacted in order to make more certain that an injured employe shall receive the compensation provided by the legislature? That, in a sense, this is a provision for the benefit of the employe rather than One directly for the benefit of the public at large may be conceded. But does the concession present a case of improper exercise of the police power? True, it has been held that the taxing power may not be invoked to aid a private enterprise upon the ground that its establishment would be a benefit to the people of the community. Loan Association v. Topeka, 20 Wall. 655, 663, 664. In re Justices (Mass.), 30 N. E. 1142, declares it is not within the power of the legislature to give a city power to purchase fuel for sale to its citizens, although they may be indigent, in rigorous winters, and have great difficulty in obtaining fuel. True, also, the same authority has declared (In re Municipal Fuel Plants, 66 N. E. 25) that, if at any time it should be made to appear that conditions were such that fuel could not be obtained by private enterprise, the court might hold that the municipality was authorized to enter upon the business of conducting fuel yards for the same reasons which authorize one to acquire and maintain water, gas and light plants. Acts have been condemned which appropriated public money for seed grain, and loans to farmers whose crops have been destroyed by hail or storms in a given year (Deering v. Peterson [Minn.], 77 N. W. 568); and authorizing townships to issue bonds and use the proceeds to provide destitute citizens of those townships with provisions and with grain for seed and feed (State v. Osawkee Township, 14 Kans. 418). So of legislation authorizing a city to issue bonds in order ■ to loan money to owners of buildings to enable them to rebuild property destroyed in the great Boston fire of 1872 (Lowell v. City of Boston, 111 Mass. 454); and k similar act
But when all is said, rules of law that such taxes are not sanctioned, and that certain instances of taxation were, therefore, unwarranted, and beyond the power of the legislature, do not settle whether some other attempt at taxation is or is not within the ban. The quarrel is not over the rule that the tax must be for a public use, but over whether its exercise in this case exacts a tax for other than public use. On this problem, ascertaining how far the courts may inquire into the character of the use for which the tax is intended, and of the cases wherein taxation has been sustained, will be found more helpful than the study of cases in which the i4ght to tax has been denied. At the outset, we find the clearly established rule that the courts must not interfere unless the exercise of the police power is an arbitrary invasion of substantial private rights, by means of “illegal or palpably unjust hostile and oppressive exactions, burdens, discriminations or deprivations” (Dutton v. Priest [Fla.], 65 So. 282); that the legislature, being familiar with local conditions, is primarily the judge of the necessity of such enactments; and that the court should not interfere, no matter what its opinion of the wisdom or necessity of the act, unless the same “is unmistakably and palpably in excess of legislative powers, . . . and has no reasonable relation to the protection of the public health, safety or welfare.”
In Broadhead v. City of Milwaukee, 19 Wis. 658, 686, it is said that:
‘ ‘ To justify the court in arresting the proceedings and in declaring the tax void, the absence of all possible public interest in the purposes for which thfe funds are raised must be so clear and palpable as to be perceptible by every mind at the first blush.”
In Sharpless v. Mayor of Philadelphia, 21 Pa. St. 147, 174, it is declared that a tax law must be considered valid
It is not a sufficient ground for the interposition of the judiciary that in a sense the tax is to be used for what is both a private and a public benefit; or that others than the taxpayer are benefited.
In Noble State Bank v. Haskell, 31 Sup. Ct. Rep. at 300, the levy and collection from every bank existing under state laws of an assessment based on deposits, for the purpose of creating a depositors’ guarantee fund, saving harmless a depositor if any such bank becomes insolvent, is held to be for a public use, although, judged from the proximate effect of the taking, the use seems to be a private one. It is said, at pages 186, 187, to be a valid exercise of the police power; that such enactments are to be upheld where the state thinks the public welfare requires them; that such an assessment is not primarily even a private benefit, but tends to make the banking business safe, which is a benefit to the public, because resorting to a bank as a place to keep money is almost compulsory. To the same effect is State S. & C. Bank v. Anderson (Calif.), 132 Pac. 755.
The principle has been accepted early in holding that what was, in terms, a tax on owners of dogs to raise a fund for reimbursing the owners of sheep which were killed by dogs, was, in truth, a police regulation. That is the holding of People v. Van Horn (Mich.), 9 N. W. 246. And this decision has been followed in a line of cases collected in a note in 17 L. R. A. (N. S.) p. 855. A very interesting and valuable decision which sustains such dog tax is McGlone v. Womack (Ky.), 111 S. W. 688. It holds that the purpose of such tax is a public one, and the question of the impossibility of determining who is at fault is discussed as it would be in a workmen’s compensation act, and the reasonable character of the tax is established, though it must be said that three justices dissented.
In the Haskell case, supra, at page 188, it was said that it'
In a word, a tax law must be considered valid unless it be for a purpose in which the community has no interest (Sharpless case, 21 Pa. St. 147, 174); or “if there be the least possibility that it will be promotive in any degree of the public
4.
If a tax raised aids in a scheme to prevent the vast economic waste which arises from personal injury litigation, and if it be to the interest of the public to care for the victims of industrial accidents to the extent, at least, of making compensation sure and free from expense, then such tax is for the benefit of the public, though it be at the same time beneficial to a class of citizens. The inquiries to be answered in testing whether an enactment purporting to be for the promotion of the public good is fairly within the field of the police power, are, according to State v. Redmon (Wis.), 14 L. R. A. (N. S.) 229, well stated in Freund’s Police Power, § 143, thus:
“Does a danger exist? Is it of sufficient magnitude? Does it concern the public ? Does the proposed measure tend to remove it? Is the restraint or requirement in proportion to the danger? Is it possible to secure the object sought without impairing essential rights and principles?”
To this we are moved to add that the test is not whether these conditions do exist, but that the courts may not avoid such taxation unless it is palpable that the legislature had no right to assume that such conditions existed, and that being passed, that the legislature palpably exceeded its powers to deal with these conditions, if they do exist, or may reasonably have been held to exist.
We think the authorities and sound reasoning leave no room for doubt as to how we shall answer whether this was a justified exercise of the police power. That what the act does in this regard is a valid exercise of the police power is decided
“The support of paupers and the giving assistance to those who, by reason of age, infirmity or disability, are likely to become such, is, by the practice and the common consent of civilized countries, a public purpose. ’ ’ See State v. Davidson (Wis.), 88 N. W. 596 (90 N. W. 1067); State v. Cassidy, 22 Minn. 312; Charlotte, C. & A. R. Co. v. Gibbes, 12 Sup. Ct. Rep. 255; Consolidated Coal Co. v. People of Illinois, 22 Sup. Ct. Rep. 616; People v. Squire, 12 Sup. Ct. Rep. 880.
In re Shattuck (N. Y.), 86 N. E. 455, bases its decision upon the statement: “In view of the quite universal rule that charitable uses and public uses are synonymous;” and in Trustees of Firemen’s Fund v. Roome, 93 N. Y. 313, it is held that a particular business could be taxed to support burdens of the government related to such business, and that the support of volunteer firemen disabled by accident, disability, or old age, and their families, is a public purpose.
In principle, the bank deposit guaranty decision is a holding that the taking justified by that statute is a proper exercise of the police power. It does not have a provision more in the public interest than that involved in this case, and the mutual benefits to the parties immediately concerned were not as direct. A compulsory scheme of insurance to secure injured workmen in hazardous employments, and their dependents,
And in Adler v. Whitbeck, 44 O. St., at 565, it is held that the inevitable accidents and personal injuries resultant from modern industrialism are a source of burden to the general-public beyond those of the pursuits of men in general, and it is within the legislative power to tax the industries responsible for that added public burden.
Applying the doctrine of the bank deposit guaranty decision, we find that in this case the mutual benefits are direct. Granted that employers are compelled, to insure, and that there is in that sense a taking, they insure themselves and their employes from loss, not others. The payment of the required premium exempts them from further liability. The theoretical taking, no doubt, disappears in practical experience. As a matter of fact, every industrial concern, except the very large ones which insure themselves, have, for some time, been forced by conditions, not by law, to carry accident indemnity insurance. The difference is that a relatively small part of the sums thus paid actually reached injured workmen or their dependents.
5.
We do not find the argument persuasive that the act has induced insurance associations to combine and to place the rate of insurance at prohibitive figures. There is no evidence in the record that this is so, notwithstanding that, it; argument, reference is made to the biennial report of the Iowa Industrial Commission, speaking to Iowa coal mines. If proven, it would not be controlling; because, first, if the rates are made prohibitive, the employer will reject the act, and there will be no insurance taken, which will automatically lead extortioners to mend their way, to avoid killing the goose that lays golden eggs; second, there are more direct and better methods of dealing with combinations such as' are here charged to exist, than
We hold that the insurance features of the act do not invalidate it.
If the parties in interest fail to reach an agreement in regard to compensation under the act, either party may notify the commissioner, who thereupon forms a committee of arbitration of three, of which the commissioner is one, and is chairman. The other two shall be named respectively by the two parties. If a vacancy occurs, it shall be filled by the party whose representative is unable to act. (See. 27.) Then come provisions as to the oath to be administered the arbitrators, and other provisions as to filling vacancies. (Secs. 28, 29.)
It is next provided that the' committee shall make such inquiries and investigations as it shall deem necessary, where the inquiry shall be held, and that the decision of the committee, together with a statement of evidence submitted before it, its findings of fact, rulings of law, and any other matters pertinent to questions arising before it, shall be filed with the commissioner. Unless a claim for a review is filed by either party within five days, the decision becomes enforceable under the provisions of the act. (See. 30.) The commissioner has power to subpoena, administer oaths, examine such books and records of the parties to a proceeding or investigation as relate to questions in dispute or under investigation, and may make rules and regulations, not inconsistent with the act, for carrying out its provisions. (Sec. 25.)
If a claim for review is filed, the commissioner shall hear
Any party in interest may present certified copy of an order of the commissioner or decision of the committee as to which no claim for review is made, within the time allowed for such presentation, or present a memorandum of agreement approved by the commissioner, and all papers in connection with same, to the district court, whereupon said court shall render decree in accordance therewith, and notify the parties. Such decree shall have the same effect, and in all proceedings in relation thereto shall thereafter be the same, as .though rendered in a suit duly heard and determined by said court. But there shall be no appeal from said decree upon questions of fact; nor where the decree is based on an order or decision of the commissioner which has not been presented to the court within ten days after the commissioner gives notice of its filing. Upon the presentation to the court of a certified copy of a decision of the commissioner, ending, diminishing or increasing a weekly payment under the provisions of the act, the court shall revoke or modify the decree to conform to such decision. .(Sec. 34.)
Any payment to be made under the act may be reviewed by the commissioner, at the request of either of the parties, and on such review it may be ended, diminished or increased, subject to the maximum or minimum amounts provided for in the, act, if the commissioner finds that the condition of the employe warrants such action. (See. 35.)
Process and procedure under the act shall be as summary as reasonably may be. (See. 25.)
It is interposed that these work an improper delegation of judicial power, and a denial of judicial hearing; that the
2.
It is not wholly clear that here there is a delegation of judicial power. It might perhaps as well be claimed that what has really been delegated is not judicial power, but power by award and resulting entry of decree to apply the measure of damages created by legislative act, — a delegation of legislative rather than of judicial power; and Chief Justice Marshall said, in Wayman v. Southhard, 10 Wheat. 1, that Congress can delegate “what powers it might rightfully exercise itself,” and grants of legislative power to subordinate municipal corporations and administrative boards have uniformly been sustained. See Martin v. Witherspoon, 135 Mass. 175. According to Sabre v. Rutland R. Co. (Vt.), 85 Atl. 694, such acts confer the power upon investigation to apply the general provisions of law to particular circumstances and situations, and may validly leave much of detail to the discretion of a commission ; though they may in a sense clothe an administrative body with quasi judicial functions in some respects, this is authorized by the police power, and confers power merely to determine facts upon which existing law shall operate — which is a conferring of auxiliary or subordinate legislative powers. The act takes away the cause of action on the one hand, and the ground of defense on the other, and merges both in a statutory indemnity, fixed and certain. State v. Clausen (Wash.), 37 L. R. A. (N. S.) 487.
In State v. Superior Court (Wash.), 120 Pac. 861, the public utilities act conferring certain powers on the public service commission is said to be valid against objection that
Others of the authorities proceed on the reasoning that the commission and arbitration boards are not courts; that the hearing before them is not the hearing the denial of which is inhibited by the due process clause; that there is no adversative proceeding; that such bodies have, at most, only quasi judicial function; that they are an administrative body or arm of government which, in the course of its administration of a law, are empowered to ascertain some questions of fact, and apply that law thereto; that such are not thereby vested with judicial power in the constitutional sense; that such are executive tribunals, charged with the duty of administering an act of legislature, and of applying the terms of that act to specific cases under the sanction of an agreement to which all persons affected by that act are parties.
3.
It is said in State ex rel. Atty. Gen. v. Hawkins, 44 O. St. 98:
“What is judicial power cannot be brought within the ring-fence of a definition. It is undoubtedly power to hear and determine; but this is not peculiar to the judicial office. Many*311 of the acts of administrative and executive officers involve the exercise of the same power. Boards for the equalization of taxes, of public works, of county commissioners, township trustees, judges of election, viewers of roads, all, in one form or another, hear and determine questions in the exercise of their functions, more or less directly affecting private, as well as public rights. . . . ‘ The authority to ascertain facts and to apply the law to facts when ascertained, appertains a's well to the other departments of the government as to the judiciary.’ ”
While, says In re Stockyards Company, 149 Iowa 5, 11, it is, of course, true that the power to tax, that is, the power to provide the method of taxation and specify the subject-matter to be taxed, is legislative, the determination of questions of fact as to whether particular property comes within the statutory description and particular persons are persons required to pay taxes on property, as well as the determination of the correctness of the method pursued in any particular case, may well be, and often is, strictly judicial. It holds that, so far as the determination involves the interpretation of the law and the decision of issues of fact on evidence submitted in accordance with the rules of law, it is necessarily judicial in its nature, and that such questions may be left to special tribunals or officers exercising quasi judicial functions, or provision may be made for their determination by courts of law.
We said, in Denny’s case, 143 Iowa, at 474:
‘ ‘ Of course, the legislature may provide for a review in the courts of the action of a tribunal, legislative in character, which it has required to determine issues of a judicial nature. ’ ’
■ In Sabre v. Rutland R. Co. (Vt.) 85 Atl. 694, there is sustained an act creating a Board of Railroad Commissioners, and held that it does not conflict with the constitutional provisions as to the distribution of the powers of government, since that provision does not require an absolute separation of functions, but permits those of an administrative office or body to be, to a large extent, judicial and legislative in character; and see In re Stockyards Company, supra.
In State v. Mountain Timber Co. (Wash.), 135 Pac. 646, it is held that, as it was the fundamental idea of the industrial insurance act to provide more certain, speedy and adequate compensation for injured employes, there, is, therefore, a valid exercise of the police power, and that the provision for its execution by the industrial insurance commission, without the intervention of the courts, is valid, because necessary to carry the idea into effect, even though it might be considered a delegation of judicial power to the commission, and in some cases deny right of trial by jury, contrary to the state Constitution.
4.
The following have been held to be a warranted delegation of judicial power: To the commissioner of internal revenue, power to designate marks, brands and stamps required by the act defining butter and imposing a tax on the manufacture of oleomargarine (In re Kollock, 17 Sup. Ct. Rep. 444) ; an act which permits a hearing by the secretary of war on whether a bridge is an unreasonable obstruction to navigation, and authorizes him to require changes that will, in his judgment, render navigation reasonably safe and unobstructed (Union Bridge Co. v. United States, 27 Sup. Ct. Rep. 367; President, etc., Bridge Co. v. United States, 30 Sup. Ct. Rep. 356); one authorizing a public service commission to investigate the necessity of gates at a crossing near a station used by a large number of persons in going to and from a station, and if it found it dangerous, to require the erection of gates (Sabre v. Rutland R. Co. [Vt.], 85 Atl. 694); one authorizing the superintendent of banks to take possession of the property
If we assume that the statute would be void if it operated to oust the courts of all jurisdiction to try controversies between employer and employe, it is an immaterial concession in the cases where the act is rejected. For, when rejected, the courts are not ousted of jurisdiction in tato; and, as we view it, not deprived of it at all. Where the act is rejected, the full dispute between the parties is still submitted by ordinary proceedings, and tried in the usual way. True, some mere rules of procedure are changed, some defenses are eliminated, and there is some change in burden of proof. Even if it be assumed that these changes are unauthorized, the objection is not sustained that, on rejection of the act, the courts no longer have jurisdiction to try suits for the injury of an employe.
2.
A somewhat more difficult question arises when the provisions of the act are accepted. In that case, if the parties cannot come to an agreement, compensation fixed by statute schedule is awarded by arbitration provided for in the act. In a sense, then, the acceptance of the statute operates to take from the courts so much of the controversy as is determined by the applying of the statute schedules through the agency of the statute arbitrators. Before we reach the question whether, if this constitute a total ouster of the jurisdiction of the courts, it would invalidate the act, we, of course, have to determine whether such total ouster is so effected. We are forced to deal with this question as one of first impression, because no decision that sustains the Compensation Act of other states is applicable. The Washington act and that of
3.
It does not constitute an agreement for complete ouster of the jurisdiction of the courts to provide by contract for the arbitration of special matters, such as agreement concerning the amount of loss due under an insurance policy, an agreement how some facts shall be fixed, and leaving ultimate liability or nonliability to be settled by the courts. Certain facts may be fixed by a person selected by contract for that purpose, so long as the ultimate question at issue may still be litigated in the courts. Supreme Council v. Forsinger, 125 Ind. 52; Whitney v. National Mas. Accident Assn., 52 Minn. 378; Insurance Co. v. Morse, 20 Wallace 445; Stephenson v. Piscataqua F. & M. Ins. Co., 54 Me. 55; Mentz v. Armenia Fire Ins. Co., 79 Pa. St. 478; Reed v. Washington F. & M. Ins. Co., 138 Mass. 572; Fox v. Masonic Frat. Accident Assn., 96 Wis. 390, 394, 395.
The following eases also throw some light on the question: Guaranty T. & S. D. Co. v. Green C. S. & M. R. Co., 139 U. S. 137; Gittings v. Baker, 2 O. St. 21; Conner v. Drake, 1 O. St. 166; Kill v. Hollister, 1 Wilson (Eng.) 129.
Contracts which provide that the value of certain property, and other like matters, shall be determined by a certain person therein named, and that his decision shall be final, are
Chapter 14, Title XXI, of the Code of 1897 provides that all controversies which might be the subject of a civil action may be submitted to the decision of one or more arbitrators, as by statute provided; and the submission to arbitrators may be of particular matters or demands, or of all.demands which one party has against the other, or of mutual demands; and it cannot be revoked except on mutual consent. Code Section, 4395 enacts that awards by arbitrators who have been chosen without complying with the provisions of the chapter shall, nevertheless, be valid and binding on the parties thereto as is any other contract, and may be impeached only for fraud or mistake; and even as the award under the compensation act can be made finally effective only by decree of court, so the award of nonstatutory arbitrators can be enforced only by an action. We are not aware it has ever been claimed that such arbitration statutes are void for ousting the courts of jurisdiction, or for any other reason — and this though they provide for submission of the entire dispute by the parties to
It has provisions that indicate that it is not intended, literally, at least, to give the statutory arbitrators all the powers that courts have. For the district court is empowered to enforce, by proper proceedings, the provisions of the section relating to the attendance and testimony of witnesses, and the examination of books and records. (Sec. 25.) And provision is made for cases whereby the judge, on notice, may commute future payments to a lump sum, restricted in amount by the statute, and upon payment there shall be a discharge of the employer of all future liability on account of the injury or death, and he be entitled to a duly executed release, upon filing which, the liability of the employer under any agreement, award, finding or judgment shall be discharged of record. (See. 15.)
So far as specific delegation goes, the arbitration committee can do no more than to find that the employe should have compensation under some item of the statute schedule; and the commissioner may, on investigation, make a finding that an award thus made shall be modified or terminated. It is manifest that this does not, in terms, deprive the courts of all jurisdiction in the premises.
The very basis of power to award compensation under the act is that its provisions must first be' accepted; that the claimant must be an employe; that he must have sustained personal injuries; that they must have arisen out of and in course of the employment; and that the compensation shall be at rates fixed by the statute. By the terms of Section 10, payment of compensation as per schedule is to be made if employer and employe have accepted the act; and under Section 27, the arbitration committee is formed and proceeds, not because there is a dispute or the material for a lawsuit between employer and employe, but if these fail to reach an agreement “in regard to compensation under this act.”.
It is significant, too, that appeal is provided from the
Sabre’s case (Vt.), 85 Atl. 694, 695, holds that, as the Constitution provides that courts shall be open for trial of all cases proper for their cognizance, therefore the courts, regardless of statute, may determine whether the board created has gone beyond the powers granted it. We are in no doubt that the very structure of the law of the land and the inherent power of the courts would enable them, to interfere, if what we have defined to be the jurisdiction conferred upon the arbitration committee were by it exceeded; that they could inquire whether the act was being enforced against one who had rejected it, whether the claiming employe was an employe, whether he was injured at all, whether his injury was one arising out of such employment, whether it was due to intoxication of the servant, or self-inflicted, — or, acceptance being conceded, into whether an award different from the statute schedules had been made, into whether the award was tainted with fraud on part of the prevailing party or of the arbitration committee, and into whether that body attempted judicial functions, in violation of or not granted by the act.
All of which establishes that the statute works no complete ouster of jurisdiction — the only ouster which is condemned.
4.
The true scope of the inquiry is, then, whether our Constitution prevents the delegation of judicial powers by statute — paraphrased, inhibits statutory approval of such delegation by contract.
‘ ‘ The judicial power shall be vested in a Supreme Court, district court, and such . . . inferior courts as the general assembly may from time to time establish.” Art. 5, Sec. 1.
If this were all, it might be claimed that this vests all judicial power or anything that can be claimed to savor of it exclusively in said courts, and that, therefore, any contract which puts judicial power in any aspect or of any degree elsewhere than in said courts cannot, therefore, be sanctioned by the legislature, nor upheld.
The duty of a court to give a statute such construction, if possible, as will maintain it, rather than one which will render it unconstitutional — Santo v. State, 2 Iowa, at 208; State v. County Judge, 2 Iowa 280; Duncombe v. Prindle, 12 Iowa 1; Iowa Homestead Co. v. Webster County, 21 Iowa 221—cannot be well performed unless the Constitution, too, be construed with a view to holding, if in reason possible, that a statute has not violated it. At the least, to arrive at the meaning of words used in a section of the Constitution, interpretation should consider sections preceding and following it having reference to the same subject-matter, unless the words to be construed have such clear and express meaning that there can be but one conclusion as to what was meant. Allen v. Clayton, 63 Iowa 11. Construing, then, with consideration of all that is said on the subject, we find, in Section 4 of Article 5, what shows that it was not intended, literally, to keep all judicial power in the Supreme Court; because this latter provides what are clearly limitations, to wit, that the Supreme Court shall have (1) appellate jurisdiction in cases of chancery and in no others, (2) and shall constitute a court for the correction of errors at law, “under such restrictions as the general assembly may by law prescribe. ” Clearly, this makes Section 1 of the article less than a literal grant of exclusive power, because it not only specifies certain powers when, if there were a grant of
Our investigation has failed to find a case in which contracts unduly restrictive of the powers of courts have been avoided on the ground that their making was inhibited by a Constitution. And every sanction we have given to any delegation of judicial power to tribunals other than duly constituted judicial tribunals is, of necessity, an interpretation that our Constitution does not prohibit all delegations of such powers. If our fundamental law puts the exercise of all judicial power in the constitutional courts, we should have held that any delegation of such power by the legislature is an unconstitutional enactment. Instead, we have sustained many such, and, additional to the instances heretofore referred to, we hold, in O’Brien v. Barr, 83 Iowa 51, that it is constitutional to vest in the executive council the authority to determine in which of the penitentiaries a convict shall be confined ; and, in State v. Mason City & Ft. D. R. Co., 85 Iowa 516, that, though the board of railroad commissioners may not be a court, it may still be given jurisdiction to investigate and determine by prescribed rules and judicial inquiry questions submitted to it under statute authority.
It is the holding of In re Assessment of Stock Yards Co., 149 Iowa 5, 10, that the delegation of judicial powers tó administrative boards is not a void act because in contravention of Article 3, Section 1, Constitution, which provides that the powers of government of the state are divided into three departments, legislative, executive and judicial, and that no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function apper
We conclude that the act is not invalid because of effectuating any undue abstraction of the powers of courts.
It is complained that the act denies to defendant the right to show that the injury complained of was caused by the negligence of the plaintiff. It does enact that the only negligence of the plaintiff which is available as complete defense is negligence which is self-inflicted or injury which is the result of intoxication. While this is all of the negligence of the plaintiff which so operates, we have held herein that the defendant is left at liberty to prove that, either by' reason of the negligence of the plaintiff or for any other reason, the defendant is wholly free from fault. To be sure, under the act it is presumed that the proximate injury was the direct result of negligence on part of the employer, and upon him is the burden of proof to rebut this presumption, and to show affirmatively that no negligence of his is at fault for the injury.
If the courts could place the burden as it was before the
“It is hardly necessary to say that hardship, impolicy or injustice of state laws is not necessarily an objection to their constitutional validity.”
In Mobile, J. & K. C. R. Co. v. Turnipseed, 31 Sup. Ct. Rep. 136, there is sustained a Mississippi statute under which, in actions against railway companies for damage done to persons or property, proof that the injury was inflicted by the running of locomotives or cars is made prima-facie evidence of negligence.
Cases like that of Byers v. Meridian Ptg. Co., 84 O. St. 408, do not militate against this. It holds that the presumption of malice arising from the publication of libel is not one as to a mere matter of procedure, but is substantive law; and that, as the legislature cannot take away rights which it did not give, it may not ordain that this presumption is rebutted if the publisher of the libel retract.
2.
And if the act is accepted, Section 2 provides that no compensation under the act shall be allowed for any injury caused by the employe’s wilful intention to injure himself, or to wilfully injure another; nor if the injury is sustained where intoxication of the employe was the proximate cause of the injury.
We think the Jeffrey case, 35 Sup. Ct. Rep. 167, is at least authority for the proposition that abolishing such defenses as contributory negligence, assumed risk and the negligence of fellow servants only, where the employer, being free to accept or reject, rejects, violates no constitutional rights.
3.
Taking away the defense that the injury is due to the negligence of a fellow servant, which is done by the act, is not objectionable as illegal classification, nor in any way violative of constitutional rights. Missouri Pac. R. Co. v. Mackey, 127 U. S. 205; Mobile, J. & K. C. R. Co. v. Turnipseed. 219 U. S. 35; Watson v. St. Louis, I. M. & S. R. Co., 169 Fed. 942.
4.
As to the elimination by the act of various defenses resting on risks assumed by the employe, the taking of such defenses has been generally held to be within the power of the legislature. See Missouri, K. & T. R. Co. v. Bailey (Tex.), 115 S. W. 601; El Paso & S. W. R. Co. v. Alexander (Tex.), 117 S. W. 927.
It has been said of the defenses of assumed risk, and that the injury was the act of a fellow servant, that, having been evolved by the courts, they may properly be abrogated by the legislature. Borgnis’ case (Wis.), 133 N. W. 209; Jensen’s case (N. Y.), 109 N. E. 600, 604. And the Supreme Court of the United States has held, in Mondou v. New York, N. H. &
5.
We hold on this appeal that the statute did not deprive the appellant of the right to a trial by jury in cases where, as here, he rejects the compensation statute, and that the denial is an error in interpretation, rather than obedience .to legislative action. Without reference to the constitutional aspects of denying jury trial, the statute cannot be unconstitutional for denying trial by jury if it does not deny such trial.
It is true that the statute accomplishes giving the jury less to do than formerly, and changes the character of its work. It can no longer pass upon whether the plaintiff should not be wholly defeated because guilty of some degree of negligence contributing to the injury complained of, and can defeat the plaintiff only if the contribution is by self-infliction, or by negligence due to intoxication. Other contributions will get to it only on a plea in mitigation. The jury will no longer consider whether the plaintiff should be defeated because the evidence shows he assumed the risk of being injured as he was; will not have the question whether there must be a failure to recover because the injury was due to the negligence of a fellow servant. It will not have the question whether the servant has proven that his injury is due to the negligence of the master, and will begin its inquiries by assuming the master was
The right to jury trial can be waived. Our own statute (Code Sec. 3650) provides, in terms, that the right exists only if it be not waived. It may be conceded that the cases hold, as appellant claims, that the waiver of trial by jury and by due process of law must be by voluntary assent, but it does not follow that constitutional guarantees must be “expressly” waived by the party thereby affected.
Proceeding upon this premise, the authorities hold that, whenever two agree to have their difficulties adjusted by a method which excludes trial by jury, they thereby waive the right to such! trial; that the right to such trial is waived by electing to come within the act; that such acts take away the cause of action on the one hand and the'ground of defense on the other, and merge both in a statutory indemnity, fixed and certain; that for these benefits the parties are required to give up “the doubtful privilege of having a jury assess his damages, a considerable part of which, if recovered at all, after long delay, must go to pay expenses and lawyer fees.” In the case of State v. Mountain Timber Co., 135 Pac. 645, it is held
No fundamental rights are disturbed because said defenses have been eliminated or modified, nor by changes made in presumption of fact.
In Merchants & M. Nat. Bank v. Pennsylvania, 17 Sup. Ct. Rep. 829, it is said that, as the statute fixes the time when the bank shall make its report to the auditor general of the value of its shares, and directs him to hear the stockholders, it satisfies the requirement as to “due process of law” in tax proceedings, which is that the law shall fix the time and
Buttfield v. Stranahan, 24 Sup. Ct. Rep. 349, holds that assuming that no opportunity was afforded by the Tea Inspection Act, 29 Statutes at Large, 604, to an importer of teas for a hearing with reference to the establishing of government standards of purity, quality and fitness for consumption, and the question as to whether his tea should be rejected as not entitled to admission because inferior to government standards, yet the statute is not thereby rendered objectionable as a denial of due process of law.
In Cunningham’s case (Mont.), 119 Pac. 554, 555, it is held that the phrase “due process of law” does not necessarily mean trial or hearing by judicial proceeding, and in State Sav. & Com. Bank v. Anderson (Calif.), 132 Pac. 755, that due process of law does not necessarily imply a regular proceeding in a court of justice. In principle, the decision in Cunningham’s case, supra, is that the power to enact a compulsory law exists, and that such enactment is not in violation of the due process clause of the Federal Constitution. And that is the holding of In re Opinion of Justices (Mass.), 96 N. E. 308, and of Borgnis’ case (Wis.), 133 N. W. 209, wherein it is held that, since the commission administering the workmen’s compensation law is a mere administrative board, it had power to investigate or determine facts without notice to the parties of each successive step in the proceedings, without thereby working a denial of “due process of law.”
Finally, defendant admitted in answer that it is a corporation, and .a corporation is not a “citizen” within the protection of the “privileges and immunities” provisions of the Federal Constitution. Dutton v. Priest (Fla.), 65 So. 282; Paul v. Virginia, 8 Wall. 168; Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566; Doyle v. Continental Ins. Co., 94 U. S. 535; Lafayette Ins. Co. v. French, 18 How. (U. S.) 404; Bank v. Earle, 13 Pet. (U. S.) 519; Warren Man. Co. v. Earla Ins. Co., 2 Paine (U. S.) 501; Ducat v. Chicago, 10 Wall. 410; Pembina C. S. Mining Co. v. Pennsylvania, 125 U. S. 181.
The effect of Kentucky State Journal Co. v. Workmen’s Comp. Bd. (Ky.), 170 S. W. 1166, is to hold the Workmen’s Compensation Board Act of Kentucky invalid because the Constitution of Kentucky prohibits the legislature from limiting the amount to be recovered for personal injuries and for injuries resulting in death.
Division IY.
There are some provisions not yet discussed: for instance, the provision of Section 26 that, if the employer and employe reach an agreement in regard to compensation under the act, a memorandum thereof filed with the commissioner is not to be approved by him unless its terms conform to the provisions of the act. Of this it is complained that it compels settlement to be made through the machinery of the statute; that it denies the right of the parties to discuss and settle differences, and so denies the right of contract. The last paragraph in Section 1, that where the parties have not given notice of the election to reject, every contract of hire between them, express or implied, shall be construed as an implied agreement between them on part of one to provide, secure and pay, and on part', of. the other to accept compensation in the manner provided by the act, is charged to work ‘ ‘ arbitrary constructions which deprive defendant of its rights, remedies and property;” and it is said that this is especially accomplished by that part of Section 1 which creates a conclusive presumption that an employer defined by the act has elected to provide, secure and pay compensation according to its terms.
It is complained that, because this conclusive presumption prevails, unless certain prescribed notices are given by him which the statute prescribes terms for, it operates to deprive the employer of an election to remain outside of the penalties of the act. It is difficult to grasp the point that the employer has not such election because he is conclusively presumed to have elected to accept, unless specified notices are by him given. This surely does not compel him to accept the act, but is merely a provision what he must do to avoid a presumption that he has accepted. And it is also., difficult to apprehend how this contention can be material, here, where defendant concedes in his brief that he has rejected. the law.
The insurance provisions have been noted before. An additional complaint is that insurance must be taken out by certain employers, no matter how small the risk of accident, and that the alternative is being subjected to what amounts to leaving them with “practically no ground of defense.” It may not be amiss to again point out that, though no insurance be effected, substantial defenses are still left, if the employer rejects the act, which, as will be shown, he is at liberty to do.
2.
Let it be freely conceded that requirement of things proper in themselves may make the statute which requires them void. It is valid to provide a method of arbitration for those who freely accept the statute which provides it, and to limit the amount that shall be paid and received by those who freely submit to that limitation. Statutes have been quite generally enacted, and either never challenged or else sustained, in which the legislature limits the amount that might be recovered — say for death caused by negligence. If this may be done by the legislature, it may, of course, do the lesser, and provide that there shall be no recovery beyond a prescribed amount for an injury due to negligence which does not cause death. By the same token, since the act of assembly is public policy, one who makes a contract that recovery for injury shall have a certain maximum, or be arbitrarily a certain sum, is not violating public policy, if the legislature
But all this assumes that the statute is in truth accepted, freely. If that be not so, such provisions as have been instanced may not save the statute, because in themselves proper. One may waive a constitutional right, but cannot be compelled to do so and be arbitrarily subjected to an option to stand upon one right under penalty of losing another. Byers v. Meridian Printing Co., 84 O. St. 408. It would not save the act if every provision in it was itself valid, and though it said, in the plainest words, that all were free to reject it, if the death penalty were to be inflicted on rejection, or if one rejecting were thereupon denied the right to vote or to send his children to the public schools. The test, then, is whether the act in truth resorts to undue compulsion to induce acceptance.
The only compulsion is to eliminate and modify certain defenses, and to change certain court-made rules, already fully discussed. It has already been demonstrated, we think, that such eliminations, modifications and changes are, in themselves, a proper exercise of legislative powers.
In Jeffrey v. Blagg, 35 Sup. Ct. Rep. 167, dealing with the validity of the Ohio Compensation Act, which, among other things, was attacked for arbitrarily eliminating defenses like contributory negligence, assumed risk, and the negligence of fellow servants, from larger shops, while leaving them to smaller ones, the.court said:
“No employer is obliged to go into this plan. He may stay .out of it altogether, if he will.”
•The Supreme Court of Ohio has upheld the Ohio act on
It comes to this: Can a law be void for coercion which attaches no penalty to rejection of its provisions other than taking away, in whole or in part, that which the citizen may lawfully be deprived of without reference to any statute which might be either accepted or rejected? If the legislature may validly say: “You shall not defend with contributory negligence, nor with fault of fellow servants; you must prove you are not in fault for the injury suffered by your servant while doing your work; you must effect insurance so that your insolvency may not leave him a crippled public charge, or make a public burden of his dependents; you may contract with each other to arbitrate summarily, effectively and cheaply, and the award shall be not more than a stated sum, and you shall not contract for less payment” — can validly compel all this without enacting a workmen’s compensation act — then
One who is at liberty to do or not to do a thing can always say, “I will not do what I can refuse to do, with or without reason, unless you do what I demand.” There can be no coercion in the sight of the law effectuated by doing or not doing what one has the absolute right to do or not to do, no matter what terms are attached to doing or refraining. One who has absolute right to do or not to do a thing can attach to his doing or not doing any condition, no matter how unreasonable or arbitrary. The remedy is refusal to accede to the unreasonable demand. To threaten one with suit on a note and resulting costs unless something asked be done, is not duress if the note is confessed and due. One having a house to lease may decline to lease it unless the proposing tenant will agree to stay away from church, or to eat nothing but tomatoes. The remedy is to get another house.
Constitutional rights can be waived. That such waiver itself works a violation of the Constitution, where the inducement to waive does nothing prohibited by the Constitution, is inconceivable.
The only penalty for non-acceptance of this act is the infliction of what the legislature may do in any event. This is not invidious compulsion.
The Fourteenth Amendment is not violated by the . announcing of said rule of pleading.
The cause is remanded for proceeding therewith in all ways not inconsistent with this opinion.
The petitions for rehearing are each — Overruled. Affirmed in part and Reversed in part.
