Industrial

the Police

"Due

Modern industrial conditions apparently make inevitable 242. occasional accidents which deprive employes of life or limb. Conditions, Furthermore, they bring together vast numbers of persons who Power and are paid small wages and consequently are unable to meet with Process." a suspension of those wages without destitution. Present-day factories are often unsanitary, the homes of employes, frequently owned by the owners of the plants at which they work, are often inconceivably unhealthful. Inability to move easily from place to place and to lay down one kind of work and take up another often results in a surplus of men desiring work of a given kind at a given place and consequently puts the employer in a position to obtain workers at wages barely sufficient to sustain life. The use of labor-saving machinery makes possible the widespread employment of women and children-even very young children-in the mills. In the large cities many dwellers in tenements undertake the manufacture of clothing and other articles, employing their whole families amidst revolting surroundings. All of these and other conditions present obvious obstructions to the attainment of individual welfare and consequently to the health of society.

To deal with more ancient evils than these there has grown up in jurisprudence the theory of the police power, whereby the people as a whole may regulate the conduct of individualsabridge their liberties-in the interest of society and social welfare. "It may be said in a general way that the police power extends to all the great public needs."3

In contra-distinction to the police power stands the doctrine of individual rights-especially the right not to be deprived of life, liberty or property without "due process" of law-firmly imbedded in the bills of rights and other clauses of constitutions. Vague and meaningless at first sight, these legal doctrines assume enormous practical importance when applied to a given state of facts. The legislature passes a law providing that a

Mr. Justice Holmes in Noble State Bank v. Haskell, 219 U. S., 104 (110, 111). He adds: "It may be put forth in aid of what is sanctioned by usage or held by the prevailing morality of strong and preponderant opinion to be greatly and immediately necessary to the public welfare." Various conceptions of the police power are discussed by W. W. Cook in Columbia Law Review, May, 1907. The most valuable treatise on the subject is Ernest Freund's The Police Power.

See federal constitution amend. 5 and 14; this or similar provision in the state constitutions. See McGhee, Due Process of Law; Pound, Roscoe, Law in Books and Law in Action, XLIV American Law Review, 12.

243. Workmen's Compensa

tion.

person injured in an industrial accident shall be remunerated by his employer, irrespective of who was at fault in the accident. Is this taking the employer's property without due process of law, or is it merely an exercise of the police power to prevent the social ills consequent upon the destitution of the helpless man's dependent family? The difference of opinion existing among the people concerning this and other similar questions is reflected by the courts, which have handed down varied and conflicting opinions regarding the constitutionality of legislative acts supposedly passed under the police power. The most important of these enactments are workmen's compensation laws, laws fixing hours of work or a minimum wage and laws regulating the labor of women and children.

The common law, as originally interpreted in the United States, made the employer liable in damages for injuries to employes received from accidents occurring in the course of employment provided the injury was due to the employer's negligence; and what should constitute negligence was gradually extended and widened both by statute and by judicial decision, until it generally included his own or his agents' failure to maintain suitable safety devices and other means to insure reasonably safe working conditions. Still, however, the employe assumed the risk-in the eyes of the law-for unavoidable accidents, and for accidents resulting from the carelessness of other employes of his own or inferior grade. Moreover, any carelessness on his own part that contributed to his injury prevented his recovering damages.

While the employer has been shielded by these three defences of Assumption of Risk, the Fellow Servants Rule and Contributory Negligence, numerous hardships have resulted to the employe. Furthermore, even when the right of action by the injured employe was recognized, delays in the courts and inequalities in counsel-the wealth of the employer usually providing more skilful attorneys, somewhat offset, it is true, by the sympathies of jurymen, made justice at best expensive and uncertain. Consequently in the nineties, the idea that a better way would be for society or the particular industry as a whole

"See McGeegan v. Hughes, 15 Dist. (Pa.), 249; Farwell v. Railroad, 4 Met. (Mass.), 49; McCulley v. Clark, 40 Pa., 399.

to bear the burden of accidents-just as all the subscribers to fire insurance companies bear the losses of each fire-bore fruit in an act of Parliament, fathered by Joseph Chamberlain, establishing what is known as the "workmen's compensation" system. Instead of attempting, with hair-splitting nicety, to determine who, if anyone, is to blame for any injuries that may be sustained through the accidents that, in spite of precautions, sometimes occur, workmen's compensation undertakes to guarantee support for himself and family to every workman disabled by accident occurring in the course of his employment, unless the result of his own wilful misconduct. As forerunners of the

workmen's compensation movement came a number of statutes and constitutional clauses abolishing the fellow servants rule and other common law limitation upon employers' liability."

Compensation

During 1910 and the five years following, no less than thirtyone states adopted workmen's compensation laws. Among Statutes.

them were included all of the states north of the Ohio and Potomac and east of the Mississippi except Delaware, but none of the southern states lying wholly east of the Mississippi. The progressive West, however, has joined the conservative East in enacting such laws. Amounts of compensation for disability and death are fixed by the acts and are usually expressed in percentages of the injured party's regular earnings. Disputes are usually settled by designated administrative officials, subject to a limited review by the courts."

A majority of the acts make some provision for insuranceeither compulsory or permissive-in order that the required

Thus in Virginia (XII, 162) the fellow servant rule and assumption of risk rule are abolished in part as to railroad employes engaged in certain classes of work. Contract or agreement by employe to waive this provision to be void. Legislature may enlarge such rights and remedies of such employes, or extend such rights and remedies to or otherwise enlarge present rights and remedies of any class of employes of railroads or of employes of any person, firm or corporation. See, also, Ariz., XVIII. 3, 4, 7; Colo., XV, 15: Miss., VII, 193; Mont., XV. 16; N. M., XX, 16; Okla., IX, 36; S. C., IX, 15; Wyo., IX, 4, X, 4; XIX, Labor contracts.

Ariz., Cal., Colo., Conn., Ill., Ind., Ia., Kan., La., Me., Md., Mass., Mich., Minn.. Mont.. Neb., Nev., N. H., N. J., N. Y., O., Okla., Ore., Pa., R. I., Tex.. Vt.. Wash., W. Va.. Wis.. Wyo.. (eight of these were in 1915). Also, Alaska, Canal Zone (workmen employed on the canal and subsidiary enterprises) and Hawaii. By act of May 30, 1908, the federal government adopted workmen's compensation in governmental enterprises to which it is appropriate. See Bulletin of Bureau of Labor Statistics.

In case of death compensation goes to the deceased's dependents. The Okla. statute does not apply to fatal accidents.

There are a number of instances of final decision by non-judicial officers (U. S.) and of consideration in the first instance by courts or by judges having power of summary decision (La.).

245. Compulsory and Optional Laws.

246. Constitutional Authorization.

compensation may be forthcoming. Contribution to a state fund for the purpose is the most advanced method. In only three states is any arrangement made for relieving the employer of the full cost of compensating the workmen.

Taken as a whole, the workmen's compensation acts are divided into two main classes, (1) those which make compulsory upon the employer the payment provided for, and (2) those which leave the adoption of the system formulated in the law to the employer's election. As an accompaniment of the latter or optional workmen's compensation it is customary to take away the fellow servants rule and other defences. Doubt as to the validity of compulsory workmen's compensation under the due process clause makes of it a constitutional question and so a necessary part of the present study.

The actual experience of having compulsory workmen's compensation legislation declared unconstitutional or the uncertainty which adverse decisions have thrown around such legislation has resulted in six constitutional amendments specifically authorizing it. Arizona's original constitution made mandatory the enactment by the legislature of a compulsory compensation law, applicable to employments deemed by the legislature to be especially dangerous, but allowing the employe the option of settling for his injuries under it or suing the employer in the regular way. Though otherwise similar, the Wyoming provision is that the right to compensation shall take the place of the employe's right of action against the employer. In the other states the legislature is merely permitted to enact compulsory

1Mont. (contribution to hospital fund may be arranged); Nev. (employer may deduct $1 per month from each employe's wages for medical and other expenses); W. Va. (employers 90 per cent., employes 10 per cent). In Me. if employes contribute to a substitute scheme, additional proportionate benefits must be paid.

Some compensation laws apply to especially hazardous employments only; others define as "hazardous" all the employments they cover in order to bring them within the especial protection of the police power.

The adverse decision in New York, on the ground that compulsory compensation without regard to his negligence deprived the employer of property without due process of law, led directly to the amendment of 1912. Ives v. South Buffalo Railway, 201 N. Y., 271. This decision was shortly disapproved by the supreme court of Washington-People v. State Auditor, 107 Pacific, 1101. See. also, Yaple v. Creamer, 85 O. St., 349; Western Indemnity Co. v. Pillsbury, 151 Pacific, 398 (Cal.); Jansen v. Sou. Pac. Co. (109 N. E.), upholds N. Y. act of 1912.

Cal., XX, 21; N. Y., I, 19; O., II, 35; Pa., III, 21 (1915); Vt., II, 66; Wyo., X, 4 (1914).

XVIII, 8.

compensation laws, but is not limited to hazardous employments. Thus in Ohio

for the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational diseases, occasioned in the course of such workmen's employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom, and taking away any or all rights of action or defenses from employes and employers; but no right of action shall be taken away from any employe when the injury, disease or death arises from failure of the employer to comply with any lawful requirement for the protection of the lives, health and safety of employes. Laws may be passed establishing a board which may be empowered to classify all occupations, according to their degree of hazard, to fix rates of contribution to such fund according to such classification and to collect, administer and distribute such fund, and to determine all rights of claimants thereto.

A simple, but very inclusive, model provision has been proposed by Mr. T. I. Parkinson of the Legislative Drafting Department of Columbia University, as follows:

Model

Nothing contained in this constitution shall be construed to limit the 247. power of the legislature to enact laws for the payment either by em- Clause. ployers or by employers and employes, or otherwise, either directly or through a state or other system of insurance, or otherwise, of compensation for injuries to or occupational diseases of employes or for death of employes resulting from such injuries or diseases, without regard to fault as a cause thereof, or for the adjustment, determination and settlement with or without trial by jury of issues which may arise under such legislation."

Aside from the legal obstacles-including, of course, the pos sibility that workmen's compensation may be declared void under the due process clause of the federal fourteenth amendment -there is not a little objection to workmen's compensation laws on the ground that they will encourage carelessness and enable employes to extort support from industry under the masque of pretended or inexcusable injury. The rapidity with which such

Quoted and criticized by Mr. J. Hampden Dougherty. V Proceedings of Academy of Political Science, 389 (1914). This volume of the Proceedings contains a number of papers discussing the subject of workmen's compensation in great detail. pp. 355, seq. Mr. Dougherty also quotes the model clause of the New York Bar Association.