156 P. 491 | Cal. | 1916
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *409 This is a writ of certiorari to review an award of the Industrial Accident Commission allowing compensation to the widow of James Mason who, the commission found, had been accidentally killed while in the employ of the petitioner, Western Metal Supply Company.
Among other grounds of attack on the award, it is contended that the Industrial Accident Commission is without jurisdiction to allow compensation to dependents where the accident has resulted in the death of can employee. The question thus raised goes to the very foundation of the commission's authority to act at all on applications for death benefits. It is involved in a large number of cases now pending in this court, in addition to the present one. It will not be necessary to repeat our views regarding the constitutionality of the general scheme of compensation embodied in the "Workmen's Compensation, Insurance, and Safety Act" of 1913. We have treated this question at some length in our recent decision in WesternIndemnity Co. v. Pillsbury,
The argument on behalf of the petitioner is divided into two branches. It is contended, first, that the legislature has no authority to create a right to compensation in favor of the dependents of an employee who has sustained injuries resulting in his death, and, second, that if this right may be created, the Workmen's Compensation, Insurance, and Safety Act transcends constitutional limitations in attempting to vest in the Industrial Accident Commission the power — asserted to be judicial in its nature — to assess compensation and award it to such dependents.
The solution of the question thus raised depends, in its final analysis, on the construction of section 21 of article XX of the constitution, adopted October 10, 1911. That section reads:
"The legislature may by appropriate legislation create and enforce a liability on the part of all employers to compensate their employees for any injury incurred by the said employees in the course of their employment, irrespective of the fault of either party. The legislature may provide for the settlement of any disputes arising under the legislation contemplated by this section by arbitration, or by an industrial accident board, by the courts, or by either any or all of these agencies, anything in this constitution to the contrary notwithstanding."
Clearly the second clause of this section, authorizing the legislature to provide for the settlement of disputes by a board or commission, has no broader scope than the first clause, which sanctions the creation of a liability. The disputes which may thus be settled are those "arising under the legislation contemplated by this section." It would not avail, therefore, to say that the legislature has power, independently of this special constitutional authorization, to create a liability on the part of employers in favor of dependents of employees, unless it also has the power, without express constitutional sanction, to vest in the Industrial Accident Commission the power to make awards in such cases. That it has no such power is, we think, entirely beyond question. The power granted to the commission by the act to determine *411
that a right to compensation exists, and to fix by an award the amount of such compensation, is judicial in its nature. In this behalf it would not seem necessary to do more than refer toPacific Coast Casualty Co. v. Pillsbury,
The commission, in exercising these powers, is performing precisely the same functions that are performed by any court in passing upon questions brought before it. "Judicial power," says Mr. Justice Miller in his work on the constitution, "is the power of a court to decide and pronounce a judgment and carry it into effect between persons who bring a case before it for decision." (Muskrat v. United States,
We do not overlook the consideration that administrative boards and officers are often called upon to determine the facts and apply the law to those facts. Such bodies and officers do not exercise judicial functions in the strict sense of that term. (Ex parte Whitley,
It is true that in several cases involving compensation statutes, it has been held that the boards or officers authorized to determine the facts upon which the right to compensation arose were exercising executive or administrative rather than judicial powers. (Borgnis v. Falk Co.,
In the absence of a special enabling provision of the constitution, judicial power could not be vested in the Industrial Accident Commission. Section 1 of article VI of the constitution provides that "the judicial power of the state shall be vested in the senate, sitting as a court of impeachment, in a supreme court, district courts of appeal, superior courts and such inferior courts as the legislature may establish in any incorporated city or town, township, county, or city and county." It is clear that the Industrial Accident Commission is not one of the courts thus designated. It is equally clear that the grant contained in the section of the constitution just cited, unless modified by other constitutional provisions, is exclusive. "Except for local purposes, the section disposes of the whole judicial power of the state, and vests all of it in the courts expressly named therein, leaving none at the disposal of the legislature." (Pacific Coast Casualty Co. v. Pillsbury,
The essential language of section 21 is this: The legislature may "create and enforce a liability on the part of all employers to compensate their employees for any injury incurred by the said employees in the course of their employment." The contention of the petitioner is that this language is not broad enough to cover a compensation to be paid to any one but the injured employee himself. But we are not to give too strict and literal interpretation to a constitutional amendment which aims to enlarge the power of the legislature, or to remove doubts concerning its power to legislate on a given subject. The constitutional amendment, as is perfectly apparent from its terms, was designed to establish the authority of the legislature to pass laws making the relation of employer and employee subject to a system of rights and liabilities different from those prevailing at common law. That system was one which had already been adopted in many jurisdictions. The statutes putting it into force were commonly known as workmen's compensation laws. In every one of those laws, provision was made not only for compensation or indemnity to an employee who survived his injury, but for payment to the heirs or dependents of an employee who had received a fatal injury. (2 Boyd, Workmen's Compensation, sec. 213.) The two kinds of payment have always been regarded as component parts of a single scheme of rights and liabilities arising out of a given relation. (SeeHuyett v. Pennsylvania R. Co.,
We have not thought it necessary to discuss at any length the objections to this legislation based upon the provisions of the federal constitution. As we have said, the subject is fully covered, so far as concerns injuries not resulting in death, by the decision in Western Indemnity Co. v. Pillsbury,
In addition to the constitutional questions which we have discussed, the petitioner urges various grounds of objection to the action of the commission.
The facts upon which the award was based are somewhat peculiar. James Mason was employed as a night watchman by the applicant, Western Metal Supply Company, and at the same time by five other corporations. He made regular rounds of the premises of the six employers. For his services he received thirty dollars per month from the applicant. The others for whom he acted as watchman paid him different sums, his aggregate monthly earnings from the six employers being $116. The Western Metal Supply Company knew that he was acting as watchman for other employers, but did not know the number of such other employers nor the identity of all of them. Mason's employment was by separate agreement with each of his employers, and not by any joint agreement or joint employment. In addition to the foregoing facts, the commission found that "the employment of Mason *417 by the defendant was personal in its nature, and was intended by the parties to be a contract of hire of an agreed portion of his personal service; that on the morning of the 9th day of March, 1914, the dead body of said James Mason was found upon the premises of the defendant Western Metal Supply Company, death having been caused by gun shot wounds inflicted by unknown persons engaged at the time of the murder in committing burglary upon the said premises." There were findings, in the language of the statute, of the other jurisdictional facts authorizing an award. The commission awarded to the applicant, the widow of James Mason, compensation amounting to three times Mason's average annual earnings, such average annual earnings being based upon the aggregate amount which he received from his six employers.
The petitioner argues that the facts above recited do not justify the conclusion that Mason was an employee of the petitioner. On the contrary, it is insisted, he was an independent contractor. Section 13 of the act defines the term "employer" as "every person, firm, voluntary association and private corporation . . . who has any person in service under any appointment or contract of hire . . . ." The term "employee" is defined in section 14 as "every person in the service of an employer . . . under any appointment or contract of hire." If it be conceded that the relationship thus described is that of master and servant, as defined in section 2009 of the Civil Code, it must nevertheless be held that the evidence before the commission justified the finding that Mason was a servant of the appellant. "The real test by which to determine whether a person is acting as the servant of another is to ascertain whether, at the time when the injury was inflicted, he was subject to such person's orders and control and was liable to be discharged by him for disobedience of orders or misconduct." (Wood on Master and Servant, sec. 317.) If Mason had been working for the petitioner alone as night watchman, it could hardly be claimed that he was not to be regarded as a servant of such petitioner. He would have been "in the service" of the employer "under a contract of hire," to use the language of the Workmen's Compensation Act, or, if we look to section 2009 of the Civil Code, it might well have been found that he was "employed to render personal service to his employer otherwise than in the pursuit of an independent calling," and in such service *418 remained "entirely under the control and direction" of the employer. The fact that Mason was working at the same time for different employers is not necessarily inconsistent with the relation of master and servant between any one of such employers and himself. (1 Labatt on Master and Servant, 2d ed., sec. 2.) The findings and conclusions of the commission on questions of fact are conclusive. (Sec. 84c.) If a finding has the support of substantial evidence, it is beyond review here. The most that can here be said is that a finding that Mason was an independent contractor might reasonably have been made. But certainly the conclusion to the contrary was one that could have been entertained by a rational mind. It is, therefore, binding upon this application.
It is not disputed that the evidence warranted the inference that the killing of Mason occurred while he was "performing services growing out of and incidental to his employment and acting within the course of his employment as such." (Workmen's Compensation Act, sec. 12a.) It is argued that because the shooting was the willful act of a third person, the killing was not accidental. This contention cannot be sustained. InWestern Indemnity Co. v. Pillsbury,
As stated above, section 13 of the act includes in the definition of employer every "voluntary association" having any person in service under any appointment or contract of hire. We think there is no force in the claim that the six corporations for which Mason was acting as watchman constituted a "voluntary association." As the commission found, there was no joint agreement between the various employers nor any joint employment by them. Each made a separate agreement with Mason. Clearly these six employers, each acting independently and without concert with the others, cannot be brought within any fair meaning of the term "voluntary association."
Finally, the petitioner claims that the award against it should be based, not upon Mason's total earnings, but upon the amount (i. e., thirty dollars per month) which he received from it. The solution of this question is by no means *419
free from difficulty. At first sight there is much plausibility in the contention that an employer, whose liability is based on the earnings of his employee, should not be compelled to pay an award measured by the earnings received by the employee from others. The statute contains no provision which can be said to point to a clear solution of this problem. Probably the framers of the act did not have in mind the specific case of a workman employed in a given capacity by different employers, to each of whom he rendered services for a portion of his time. It must be remembered, however, that the main purpose of the act is to indemnify the workman for the loss suffered by him. The indemnity takes two forms — the furnishing of medical attention, and payment of a proportion of the earnings lost in consequence of the injury. In case of death, the amount payable is a percentage "of the average annual earnings of the deceased employee." A fair compensation is to be paid to the employee, or to the dependents who have lost in him their source of support. It should be based upon the amount which the employee was in the habit of earning in the particular kind of employment, rather than the amount which he had been receiving from a particular employer. This was the view taken by the supreme judicial court of Massachusetts in dealing with a statute which, in this regard, is not unlike our own. A longshoreman was injured while working for a steamship company. He had been employed part of the time by this company, and had earned, on an average, eight dollars per week from it. His total earnings from all employers averaged thirteen dollars per week. It was held, in Gillen's case (
The award is affirmed.
Concurrence Opinion
I concur in the judgment, and also in the opinion of Mr. Justice Sloss. I desire to add a few words as to my views on the question of the proper construction of section 21 of article XX of the constitution. I am entirely satisfied, as held by the court, that there is to be found in such provision, in view of the circumstances which we have a right to consider in construing the language of such a constitutional provision, an intent to include the whole subject matter of compensation for injuries to employees in the course of their employment, including death, regardless of the fact that the compensation in the event of death goes to dependents of the employee. Of course, it must be conceded that where a constitutional provision is so clear and unambiguous as to leave no doubt as to its meaning, the courts are not at liberty to alter the meaning so expressed by resort to other considerations, and the intent of the people in adopting the provision, which is necessarily the governing factor, must be determined solely by the language they have used. In such a case, while the object of construction of such a provision is simply to give effect to the intent of the people in adopting it, that intent is to be found in the provision itself. But in considering the language used, extremes of both a liberal and a strict construction are to be avoided, and mere technical rules of construction are often to be disregarded. As an illustration, Mr. Cooley says that the maxim that statutes in derogation of the common law should be strictly construed can seldom with propriety or safety be applied to constitutional provisions. In this connection he also says: "When these amendments assume to make any change in the common law the change designed is generally a radical one; but as they do not go minutely into particulars, as do statutes, it will sometimes be easy to defeat a provision if courts are at liberty to say that they will presume against any intention to alter the common law further than is expressly declared. A reasonable construction is what such an instrument demands and should receive; and the real question *421 is what the people meant, and not how meaningless their words can be made by the application of arbitrary rules." (Cooley, Constitutional Limitations, 7th ed., p. 89.)
Section 21 of article XX of the constitution was proposed to the electors as an amendment by the legislature at the regular session of 1911, the same session at which was adopted the so-called Roseberry Workmen's Compensation Act, the compensation provisions of which were elective as to both employer and employee. The latter act was the first step in this state toward substituting for the old system of an action in the courts for the recovery of damages from an employer for injuries to a workman in cases where the employer was found guilty of some negligence or misconduct, the general system of compensation for injuries incurred by employees in the course of their employment embodied in workmen's compensation laws in various other states and countries, a system imposing liability for compensation irrespective of the fault of either party, and generally administered by a commission. The nature of the very radical change proposed, and the reasons for such legislation, were discussed in the opinion of Mr. Justice Sloss inWestern Indemnity Co. v. Pillsbury,
The Roseberry Act, which, as I have said, was enacted at the same session at which the constitutional amendment was proposed, provided compensation for dependents of an employee who was fatally injured in the due course of his employment. So far as legislation has gone on this subject, such compensation is an inseparable part of every such system. As is said in 2 Boyd on Workmen's Compensation, sec. 213, "Provision is universally made in all of the compensation acts to provide compensation for persons who wholly or in part depend upon an employee who is killed in the due course of employment." An examination of the laws of other states and countries on this subject shows that this statement is absolutely correct. The contention of petitioner in this regard would bring us to the conclusion that the legislature in proposing and the people in adopting the amendment under consideration, one designed to confer on the legislature full power to provide for the creation and enforcement of the liability attendant on such a system, intended to so limit the authority of the legislature in that regard as to preclude it from either creating or providing for the enforcement of any liability in connection therewith to pay compensation for the death of the employee to his dependents, a matter considered an essential part of the system in every workmen's compensation law ever enacted, and one embraced in the very law enacted by the legislature at the same session. It is difficult to understand how, in the nature of things, any such effect could have been intended. Does the language used compel such a conclusion as to the intent of the amendment?
So far as this question is concerned the material portion of the amendment is the first sentence. The language is: "The legislature may by appropriate legislation create and enforce a liability on the part of all employers to compensate their employees for any injury incurred by the said employees in the course of their employment, irrespective of the fault *423 of either party." The remainder of the section has simply to do with the conferring of full power on the legislature to provide for the settlement of disputes arising under such legislation. The claim that no intent can here be found to include compensation for death to dependents must rest upon the fact that the words, "their employees," were inserted after the words, "to compensate," the language being "to compensate their employees," for it is very clear that in the absence of these two words, the succeeding words, "for any injury incurred by the said employees," could be fairly construed in no other way than as including any and all injuries, including death, thus making the section provide for the creation and enforcement of a liability on the part of all employers to compensate for any injury incurred or suffered by an employee in the course of his employment, including the compensation to dependents in the event of death. It does seem to me that such a claim attributes too much force, and too technical a meaning, to these two words in the connection in which they are used, one not in accord with their ordinary and popular significance in such a connection. We know that such acts as the Roseberry and Boynton Acts are generally and popularly known as "Workmen's Compensation Laws," and, as we have seen, they invariably include a scheme for the compensation of dependents in the event of death. This term necessarily brings to the mind of any one a law including such a scheme as an essential part. And I believe that the same signification should be given to such phrases as "compensation of employees," or "to compensate their employees," or "any injury incurred by the said employees," when used in a general way in connection with such laws, for I believe that such is the meaning ordinarily given to such language in this connection by the people generally. It is the popular signification in this connection. An examination of the titles adopted by those framing such laws is interesting as indicating the views of legislators on this subject. In Bradbury's Workmen's Compensation (2d ed.), we find the legislation of this and other countries pertaining thereto. In Great Britain the act of 1906 is entitled, "An act to consolidate and amend the law with respect to compensation to workmen for injuries suffered in the course of their employment." (Vol. 2, p. 1735.) Our own Federal Compensation Law of May 30, 1908, for employees *424 of the government, is entitled, " An act granting to certain employees of the United States the right to receive from it compensation for injuries sustained in the course of their employment." (Vol. 1, p. 1049.) The Connecticut act is entitled, "An act concerning compensation to workmen injured in the course of their employment." (Vol. 2, p. 1144.) The title of the Kansas act is, "An act to provide compensation for workmen injured in certain hazardous industries." (Vol. 2, p. 1218.) The title of an act of Massachusetts is, "An act to provide for compensating certain public employees for injuries sustained in the course of their employment." (Vol. 2, p. 1262.) The title of the act of Alberta is, "An act with respect to compensation to workmen for injuries suffered in the course of their employment" (vol. 2, p. 1641); that of an act of British Columbia, "An act respecting compensation to workmen for accidental injuries suffered in the course of their employment" (vol. 2, p. 1641), and those of Manitoba and Nova Scotia the same. (Vol. 2, pp. 1655, 1698.) The act of Saskatchewan is entitled "An act respecting compensation to workmen for injuries suffered in the course of their employment," and it is declared that it is to be known as "The Workmen's Compensation Law." (Vol. 2, p. 1725.) As I have noted, all of these acts, as well as all other acts on the subject, include the scheme of compensation to dependents in the event of death. In other states the title substantially defines the act as an act for the compensation for an injury suffered or sustained by an employee in the course of his employment, specifying in terms nothing about death or compensation to dependents. (Iowa, vol. 2, p. 1190; New Jersey, vol. 2, p. 1375.) This indicates the existence of a very different meaning for such words as are used in our constitutional amendment, when used in describing workmen's compensation legislation, from that given to our constitutional provision by the learned counsel for petitioner. I am satisfied that in the light of the history of such legislation, the only fair conclusion is that the words of the constitutional provision, considered all together, could have been understood by the people in no other way than as meaning that compensation "irrespective of the fault of either party" could be provided for any injury (including death) suffered or sustained by an employee in the course of his employment, including compensation of dependents of the *425 employee in the event of death. Such is the meaning fairly indicated by the language used, in view of the subject matter of the provision.
Lawlor, J., concurred.
Concurrence Opinion
I concur in the opinion of Mr. Justice Sloss.
In view of the reference therein to the constitutionality of the general scheme of the act of 1913, as determined inWestern Indemnity Co. v. Pillsbury,
Dissenting Opinion
I dissent from more than one of the legal conclusions declared in the prevailing opinion. In so doing I have no disposition to repeat the views which I expressed at length in my dissenting opinion in Western Indemnity Co. v. Pillsbury,
1. The construction of the constitutional provision which creates "a liability on the part of all employers to compensatetheir employees for any injury incurred by the said employees in the course of their employment." By that construction it is announced that this language of the constitution, expressly limited to compensation to employees, means compensation to *426 heirs, to actual dependents, or to a named class of so-called dependents, without regard to their needs. Of course the constitution neither says nor authorizes this. Of course the constitution by its very words limits the liability for compensation to the employees, and therefore, by every canon of construction, particularly in a "revolutionary act" such as this has been described to be, should be construed only in accordance with its language. The reasoning by which the conclusion of the prevailing opinion is reached is, as well as I can follow it, along two lines. In the concurring opinion of the chief justice the argument seems to be that as laws of this nature are generally known as "workmen's compensation acts," and as in all of these laws express provision is made for the compensation of dependents for the death of the injured employee, therefore we should say that the constitution meant to include a like provision, and, furthermore, as it is a desirable thing that the whole subject matter should be left to the accident commission, we are justified in helping out this deficiency of the constitution by making it say not what it does say, but what in the opinion of this court it should have said. If this reasoning is sound, it not only opens wide the door to and justifies any form of usurpation of the legislative power by the judiciary, but goes a step farther and justifies the judicial enactment of constitutions. For such a construction of the constitution makes the people of this state declare what distinctly they declined to declare, and confers upon the legislature a power which distinctly the constitution failed, if it did not refuse, to confer upon the legislature. The unvarnished truth is that, under the guise of construction, this court is filling a manifest gap and hiatus in the law. It is inserting in the constitution important provisions of the law affecting personal rights which provisions are not expressed therein. So that hereafter this court can be justly charged not only with making laws under the guise of construction, but with framing constitutions as well.
The second line of reasoning recognizes the radical and essential differences which exist at common law (which is the basis of jurisprudence in this state, Pol. Code, 4468) between an action in tort by a person for injuries and an action for his wrongful death by his heirs, and declares, as indeed must be declared, that while the right of action to an employee for injuries existed at common law and was enforceable *427 against the master, damages or compensation for the wrongful death of an employee, or of anybody else, were unknown at common law. It is recognized that such was the law of this state until the right of action for the wrongful death was placed upon our books as a statutory right. But we are advised under this line of reasoning that "the analogies of the common law cannot be applied too closely to this new scheme which undertakes to supersede the common law altogether." To this I make answer that here there is no question whatsoever of analogies. It is a question of principles. Specifically, it is the question of applying the proper principles and canons of construction to this constitutional amendment. Those principles are still the principles of construction embraced and declared in the common law, repeated in our code rules of construction (Civ. Code and Code Civ. Proc., sec. 5), and reinforced by the added provision of the code to the effect that the common law of England is the rule of decision in all courts of this state (Pol. Code, 4468).
The imperative duty is thus cast upon this court to construe the scope of this constitutional grant of power to the legislature, under common-law rules governing the construction and interpretation of enactments, precisely as we would construe the same language if found in one of our legislative acts. What jurist with the slightest knowledge of the common law would dream of saying, or would dare to say, that a legislative act in the language of this constitution awarding compensation "to the injured employee," could or would be stretched to mean the creation of a right of action in the heirs or dependents of a dead employee? An act of parliament is England's supreme law, precisely as is our constitution. Could any common-law lawyer be found who would risk his reputation for sanity by declaring that an act of parliament, in the language of our constitution, included indemnification to dependents for the death of the employee. And is it not amazing, if this construction be in anywise tenable, that the same construction has not long since been put upon the common law itself? Would it not have been said (as is here said in reference to our constitutional provision) that as the common law gave a right to compensation to an injured employee, and as compensation is but another word for damages, the common law itself, without statutory enactment, gave a right of action to the heirs or dependents of the employee in the *428 event of his death? How much wasted time and superfluous labor have legislatures bestowed upon these and like questions if this novel rule of construction is a sound one! The framers of every workmen's compensation act thought it necessary to make express provision for compensation in the case of death. They need not have done so. Our legislature thought it necessary to make express provision for a right of action following a wrongful death. It need not have done so. In all the history of the common law, to no analyst of and no commentator on it did it ever occur that the recognized right of action to a person for injuries contained within itself the right of action to his heirs or dependents in the event of his death. We must regret this age-long deficiency in their perceptive and analytical faculties.
2. The employer in this case was concededly absolutely blameless and without fault. I deny the power of the state constitution to take the property of one man under such circumstances and to bestow it upon another. My views upon this I set forth in extenso in Western Indemnity Co. v. Pillsbury,
I have no desire to repeat them, but once more and for the last time I must dissent from a judicial declaration which amounts simply to this: Whenever the legislature despoils a blameless person or class of persons of their property to bestow it on the supposedly needy this court will say that the act of spoliation is "referable to the police power" and consequently valid. To a new liability or a new form of liability created to meet negligence or tort, actual or imputable, there can be no valid objection; actual as where the employer fails himself to observe due care for his employees, imputable as where injury results to one employee from the misconduct of another, which latter may reasonably be regarded as in a sort an agent of the employer himself. But beyond this no legitimate exercise of the police power can go; and to approve legislative acts which transcend these just and well-defined limitations is to throw wide the door to whatever form of expropriation the legislature may see fit to indulge in.
In Calder v. Bull, 3 U.S. (3 Dall.) 386, 399, [1 L.Ed. 648, 654], Justice Iredell, after discussing the legislative omnipotence of the English parliament, declares: "In order, therefore, to guard against so great an evil, it has been the policy of all the American states, which have, individually, framed *429 their state constitutions, since the revolution, and of the people of the United States, when they framed the federal constitution, to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the legislature of a state violates those constitutional provisions, it is unquestionably void." In Fletcher v. Peck, 6 Cranch. (10 U.S.) 87, [3 L.Ed. 162], Chief Justice Marshall speaks as follows: "It may well be doubted, whether the nature of society and of government does not prescribe some limits to the legislative power; and if any be prescribed where are they to be found, if the property of an individual fairly and honestly acquired, may be seized without compensation?"
I am not unmindful of the fact that these are utterances of ancient law, having both been written more than a hundred years ago. Nor am I unmindful of the modern tendency to belittle and reject all such utterances as having been made by men steeped to the lips in the wine of privilege, and incapable of understanding the present day theories of the rights of man. Nevertheless, they sat in the nation's highest judicial chairs, and until their successors in those chairs shall say that their words have lost their meaning and their constitutional expositions are obsolete, I shall continue to found my legal views on those utterances rather than on the new science of legal hermeneutics of which the prevailing opinions in this and the earlier case afford such luminous examples.
3. I dissent from the view which justifies the giving of the property of a citizen of this country to nonresident aliens who are not even within the jurisdiction of the state. By no conceivable stretch of the imagination of which I am capable can I perceive that the support of such nonresident aliens is any part of the duty of the state, or that provision for such support comes within any possible legitimate purview of the police power. I must confess to a lack of nimbleness of mind which makes it impossible for me to follow the rapidly shifting grounds upon which one or another of the terms of this law are upheld. I have heretofore expressed some of my difficulties in this regard. Thus when under the provisions of the constitution, which the constitution itself declares are mandatory, it is declared that the legislature shall impose a liability upon all employers, I have been unable to see how justification could be found for the act of the legislature in *430 exempting favored classes of employers. The answer is made by this court that these exempted employers of labor are not favored but unfavored classes, because this law is really a benefit to the employer. But why then the legislature should be allowed to discriminate against certain employees remains an unanswered query. When it is asked, if the law be for the benefit of the employee, by what right are the employees of these exempted classes denied their right, we are brought back to our starting-point by the declaration that the legislature exempted them because it believed that there was less danger or risk in their employments. When the farmers' men working harvesters and threshing-machines are deprived of the benefit of this law, this court gravely states that the reason, doubtless, was that the legislature did not think that their employment was as dangerous as those of dry-goods clerks and telephone girls. Whenever a feature of the act does not appear to be for the benefit of the employer it is upheld as being a benefit to the employee. When it is not a benefit to the employee it is justified as being a benefit to the employer. And whenever it cuts too deeply into the rights of both employer and employee, then it is said to be justified by the state's interest in the general subject. And this last is the argument here advanced in support of the donation by the state of the property of its citizens to alien nonresidents.
4. I dissent from the declaration that the state may arbitrarily create and define a class of persons, and by calling them "dependents" confer upon them any man's property, and I say that this cannot be done even as an exercise of the police power. For the purposes of this argument I will concede that the property of the employer may be given to theactual dependents of the employee who is killed, but the actual dependency as a determined fact is the only basis in law or equity upon which this may be done.
5. I dissent from the views which uphold this award in full, and force full compensation to be made by only one of the deceased's six employers. This dissent has nothing to do with the construction of the law put upon it by the Industrial Accident Commission to the effect that the compensation to the deceased's dependents should be based upon his total earning capacity in his vocation. This is manifestly the sound view of the law, and this is what the Gillen case (
Addendum
I concur in the views expressed by Justice Henshaw on the construction to be given the constitutional provision respecting power of the commission to award compensation.
Addendum
I concur in all that Mr. Justice Henshaw says with reference to the construction of the language of the constitution whereby a liability of employers to compensate "their employees" is extended to include a compulsion upon them to recompense dependents of such employees. I also concur in all that he says with reference to the award of full compensation against one of numerous coemployers. It seems to me that the result reached by the majority of the court permits an injustice which calls for just such vigorous protest as my learned brother makes.
Rehearing denied.
