Page images
PDF
EPUB

to interfere with the power of the state, sometimes termed its
police power, to prescribe regulations to promote the health,
peace, morals, education, and good order of the people, and to
legislate so as to increase the industries of the state, develop
its resources, and add to its wealth and prosperity."

LIBERTY OF CONTRACT NOT ABSOLUTE IN DANGEROUS EM

PLOYMENT.

(d) Liberty of contract is supposed to be a property right, as construed by the courts.

In Adair v. U. S., 208 U. S. 161, Mr. Justice Harlan, requotes from Lochner v. New York, 198 U. S. 45, as follows:

"The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th

amendment of the Federal constitution." Later on the court says:

"Under that provision no state can deprive any person of life, liberty, or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right.”

Adair v. U. S., 208, U. S. 161. In Gray v. Building Trades Council, 91, Minn. 171 (182), our court said: –

“A person's occupation or calling, by means of which he earns a livelihood and endeavors to better his condition, and to provide for and support himself and those dependent upon him, is properly within the meaning of the law, and entitled to protection as such; and as conducted by the merchant, by the capitalist, by the contractor or laborer, is, aside from the goods, chattels, money, or effects employed and used in connection therewith, property in every sense of the word.”

BUT THE LIBERTY OF EMPLOYER AND EMPLOYE TO CONTRACT IS NOT ABSOLUTE WHEN

APPLIED TO DANGEROUS EMPLOYMENT.

Holden v. Hardy, 169, U. S. 366.
Atchinson, etc., Ry. Co. v. Matthews, 174, U. S. 96.
Johnson v. Southern Pacific Ry Co., 196, U. S. 1.
Knoxville Iron Co. v. Harbison, 183 U. S. 13.
Muller v. Oregon, 208 U. S. 412 (L. Ed. 551-555).

Hicago, R. I., etc., Ry. Co. v. Zernecke, 183 U. S. 582.
In Holden v. Hardy, 169 U. S. 366, the court said:

“This right of contract, however, is itself subject to certain limitations which the state may lawfully impose in the exercise

of its police power.” In Atchinson, etc., Ry. Co. v. Matthews, 174 U. S. 96:

“But neither the amendment, broad and comprehensive as it is,

nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity.”

In Knoxville Iron Co. v. Harbison, 183, U. S. 13, the court said:

“But it is also true that, inasmuch as the right to contract is not absolute in respect to every matter, but may be subjected to the restraints demanded by the safety and welfare of the state and its inhabitants, the police power of the state may, within defined limitations, extend over corporations outside of and regard

less of the power to amend charters." In Lochner v. New York, 198 U. S. 45, it is said :

"The state, therefore, las power to prevent the individual from making certain kinds of contracts, and in regard to them

the federal constitution offers no protection.” Upon this theory the court made the holding in Muller v. Oregon, as follows:

“Yet, it is equally well settled that this liberty is not absolute and extending to all contracts, and that a state may, without conflicting with the provisions of the Fourteenth Amendment restrict in many respects the individuals power of contract.”

ALL PROPERTY HELD SUBJECT TO POLICE POWER.

(e) The right of property is always held subject to the necessities of the general weliare and especially under our constitutional system based on the contract theory.

See Holden: v. Hardy, supra.
Indeed in Beer Compan v. Massachusetts, 97 U. S. 25, the court said ::

"If the public safety or the public morals requires the discon-
tinuance of any manufacture or traffic the hand of the Legislature
cannot be stayed from providing for its discontinuance by any in-
cidental inconvenience which individuals or corporations may
suffer. All rights are held subject to the police power of the
state'

INTERSTATE COMMERCE SUBJECT TO THIS POWER.

(1) To the extent that the general welfare needs protection within the state, it is at liberty to act even on interstate commerce, for the state's police power as to that was not delegated to congress.

McLean v. Denver & R. G. R. R. Co., 203 U. S. 38-47.
Mayor, Alderman, e al, of New York v. Miln, 11 Peters, 102.
Howard v. Ill. Cent. R. R. Co., 207 U. S. 463.

THE STATE MAY REGULATE EMPLOYES OF THE PUBLIC.

(g) Of course, these constitutional provisions do not prohibit the state from passing a law which would allow its own servants to collect from it.

Aitkin v. Kansas, 191, U. S. 206. (h) Actual fault is not necessary to fix a basis of compensation. See authorities under Section 2, supra.

(i) The greatest two curses of the present jury system for this class of cases are the determination of:

1. Fault or counter-fault. 2. Amount to be awarded, maintained, or defeated after expensive litigation.

This law places the duty, and, except for attempt to self-inflicted injuries to obtain compensation, leaves no question of fault for trial. The compensation is based on disability and measures by wage scale — more simple, certain, quick remedy than a jury could give.

(j) The suggestion has been made that in the insurance cases the provision for award rest upon contract. The point is that under the police power of the state may prescribe the form of contract and prohibit all others.

Wild Rice Lbr. Co. v. Royal Ins. Co., 99 Minn, 190. It is well settled, at least in some states, that because of the police power of the state may require fire insurance companies to make prescribed forms of policies containing clauses for arbitration. It may prohibit any other contract than that so prescribed. This covers the principle.

We apply it to dangerous employments under the police power. There con be no doubt of the right of the state to employ the principle by requiring suck contracts. The reason for requiring the contracts by fire insurance companies is the convenience of all. The reason for not requiring them in the case of employer and employe is, again, the convenience of all.

The formal execution so required gives no consent, except to do business under the so here the formal execution is unnecessary. The fact that business is done places them under the law and gives as much consent.

There are institutions that will be subject to this law which necessarily employ and discharge enough men daily to create enough expense in the formal execution of policy contracts to greatly burden the employer and seriously decrease the cost benefits to the employe. Without reason and against economy the burden should not be imposed. See

State v. Beardsley, 88 Minn. 20.
Scherpfer v. Rockford Ins. Co., 77 Minn. 291.
Article by H. V. Mercer, Atlantic City, Report, p. 195.

BOARD OF AWARDS OR BOARD OF ARBITRATION.

a.

[ocr errors]

See authorities under Preamble and Sections "I", "II", and "III". b. See Standard Form for Policies of Ohio.

This is a reasonable method of determining matters based upon new

rights given since the constitution.
See Board of Co. Coni. v. Morrison, 22 Minn. 178.
Minor v. Happersett, 21 Wall. 162.
Article by H. V. Mercer, Atlantic City Conference Report.

d. Irrespective of this, it is a reasonable method of determining claims. In the case of State ex rel. Barber Asphalt Paving Co. v. District Court of St. Louis County, 90 Minn. 457, Duluth had a charter provision allowing appeals to be taken to the court in such cases by the tax-payer. The respective quotation will show the views taken by the court, 90 Minn, 461-464:

"We have no doubt that the provision of the charter requiring
the presentation of all claims to the city council for adjustment
and allowance was an appropriate subject for charter supervision,
and from that it would seem to follow logically that it was also
proper to continue the subject,, and provide the manner in which
the determination of the city council allowing or disallowing a claim
might be removed to the district court for judicial investigation
and determination; and we hold without further remark that
it was within the power of the framers to embody in the charter
the provision under consideration.

"'It is contended that the provisions of the charter are in-
valid, because they do not constitute due process of law *
The statute is a very serviceable one, and provides an orderly
method of settling claims and demands against counties with-

*

out the necessity of the formal commencement of an action in
court; and the provisions allowing the appeal of the instance
of tax payers was intended as a safeguard, and to assist in the
protection of a public fund.

“Every person is entitled to a certain remedy in the law for
the redress of all injuries or wrongs he may receive in his per-
son, property, or character. But he is not entitled to any partic-
ular remedy. Due process of law. means an orderly procedure
adapted to the nature of the case, in which the citizen has an
opportunity to be heard to defend, enforce, and protect his right;
and, where such opportunity is granted by law, the citizen cannot
complain of the procedure to which he is required to conform

In case like that under consideration, where a claim is made against a city or county, the presentation of the claim to the administrative officers for their action is the initiation of proceedings to enforce its payment. By the presentation claimant adopts that method of enforcing his rights. He is bound to follow up his claim, and pursue the remedy pointed out by the charter or statutes for its enforcement, and is afforded ample opportunity for a complete investigation and hearing upon the merits of his claim. And, though notice of appeal is required to be served upon him, he is apprised by the law for the manner of taking such appeal; and, unless he wholly abandons his claim after its allowance by the city, he will have actual knowledge that it has been taken. This answers every purpose, and is 'due process of law.'"

"The administrative officers, the board of county commissioners, or the city council, in passing upon and allowing or

disallowing the claims, act quasi judicially." In speaking of a decision of the United States Land Department, in Lampson v. Coffin, 102 Minn. 493-500, our court said:

“That was the only tribunal qualified or with jurisdiction to determine the existence of the facts essential to the alleged right, and its conclusion therein precludes further inquiry by

the court." In Murray v. Hoboken, etc., Co., 18 How. 280 (L. ed. 372), the Supreme Court also said:

"It is true, also, that even in a suit between private persons to try a question of private rights, the action of an executive power upon a matter committed to its determination by

the constitutional laws is conclusive." e. The authority for this may be found in the insurance cases following as well as the foregoing cases :

Wild Rice L. Co. v. Royal Ins. Co., 99 Minn. 190-193-195.
State v. Beardsley, 88 Minn. 20-25.
Schuffer v. Rockford Ins. Co., 77 Minn. 291.
Viney v. Rignold, L. R. 20 Q. B. D. 172.
Scott v. Avery, 5 H. L. Cas. 811.
Pres't, etc., D. & H. Canal Co. v. Pa. Coal Co., 50 N. Y. 250.
Walff v. Liverpool L. & G. Ins. Co., 50 N. J. L. 453.

(f) The Federal Constitution does not control mere forms of procedure in, or regulate the practice of, the state courts.

"A state cannot deprive a person of his property without the due process of law, but this does not necessarily imply that all trials in the state courts, affecting the property of persons must be by jury. This requirement of the constitution is met if the trial is had according to the settled course of judicial proceedings.

Due process of law is process due according to the law of the
land. This process in the states is regulated by the law of the
state. Our power over that law is only determined whether it
is in conflict with the supreme law of the land. ........... That
is to say, with the constitution and laws of the United States
made in pursuance thereof........or with any treaty made under
the authority of the United States.

Maxwell v. Dow, 176 U. S. 581, (L. ed. 597.)
In a recent case, in speaking of procedure, the court said:

"It does not follow, lowever, that a procedure settled in
English Law at the time of the emigration, and brought to this
country and practiced by our ancestors, is an essential element of
due process of law. If that were so, the procedure of the first
half of the 17th Century would be fastened upon the American
jurisprudence like a 'straight jacket, only to be unloosed by con-

stitutional amendment." And:

Twining v. New Jersey, 211 U. S. 78.
"That (said Mr. Justice Matthew, in the same case, p. 529)
would be to deny every quality of the law but its age, to render it
incapable of progress or improvement."

Twining v. New Jersey, U. S. 211, 78. The opinion that requotes from Louisville & Nashville R. R. Co. v. Schmidt, 177 U. S. 230 (L. ed.):

"It is no longer open to contention that the due process of the law clause of the 11th amendment to the constitution of the United States does not control mere forms of procedure in the

state courts, or regulate practice therein." Further in on the opinion it said: Due process requires that the court which assumes

to determine the rights of the parties shall have jurisdiction and that there shall be notice and opportunity of hearing given the parties

.....subject to these two fundamental conditions, which seem to be universally prescribed in all systems of law established by civilized countries, this court has, up to this time, sustained all state laws, statutory or judicially declared regulating procedure, evidence and methods of trial, and held them to be consistent with due process of law."

RESUME OF LEGAL FINDINGS.

1. That an employe who has received an injury in the due course of his employment has a cause of action against his employer because his employer was negligent is based upon what the court first held was an implied contract on the part of the employer that he would furnish a reasonably safe place in

« PreviousContinue »