VARIOUS PHASES OF LABOR LEGIS- 
 LATION WITH REGARD TO 
 CONSTITUTIONALITY 
 
 BY 
 
 O. JOHN ROGGE 
 
 THESIS 
 
 FOB THE 
 
 DE6REEOF BACHELOR OF ARTS 
 
 JN 
 
 POLITICAL SCIENCE 
 
 COLLEGE OF LIBERAL ARTS AND SCIENCES 
 
 UNIVERSITY OF ILLINOIS 
 
 1922 
 
VARIOUS PHASES OF LABOR LEGIS- 
 LATION WITH REGARD TO 
 CONSTITUTIONALITY 
 
 O. JOHN ROGGE 
 
 THESIS 
 
 FOR THE 
 
 DEGREE OF BACHELOR OF ARTS 
 
 IN 
 
 POLITICAL SCIENCE 
 
 COLLEGE OF LIBERAL ARTS AND SCIENCES 
 
 UNIVERSITY OF ILLINOIS 
 
 1922 
 
/ 922 
 P?6 3 v 
 
 UNIVERSITY OF ILLINOIS 
 
 THIS IS TO CERTIFY THAT THE THESIS PREPARED UNDER MY SUPERVISION BY 
 
 DEGREE OF _ 
 
 
Digitized by the Internet Archive 
 in 2016 
 
 https://archive.org/details/variousphasesoflOOrogg 
 
VARIOUS PHASES OE LABOR LEGISLATION WITH REGARD TO CjfiA tllvtm 
 
 BIBLIOGRAEHY 
 
 Commons and Andrews, Principles of Labor Legislation, Ed. 1920. 
 
 Goodnow, Social Reform and the Constitution. 
 
 Clark, The Lav/ of the Employment of Labor 
 
 Bulletins of the Industrial Commission of Ohio. 
 
 Workmen* s Compensation Report, Senate Document 419, 63rd Con- 
 gress, 2nd Session. 
 
 United States Bureau of Labor Bulletins. 
 
 State and United States Statutes. 
 
 Monthly Labor Reviews. 
 
 Groat, Attitude of American Courts in Labor Cases. 
 
 CASES CITED. 
 
 Bailey v. Alabama, 31 Sup. Ct. 145. 
 
 Robertson v. Baldwin, 17 Sup. Ct. 326. 
 fpchner v. Hew York, 25 Sup. Ct. 539. 
 
 Bunting v. Oregon, 37 Sup. Ct. 435. 
 
 Holden v. Hardy, 169 U. S. 366. 
 
 Ives v. South Buffalo Railway Company, 201 N . Y. 271. 
 Cunningham v. Northwestern Improvement Company, 44 Mont. 180. 
 Deibeikis v. Link Belt Company, 104 N.E. 211. 
 

 •*~2 
 
 
 
 
 
 r 
 
 
 
 t 
 
 
 7 
 
 
 
 
In re Opinion of Justices, 96 N. E. 308. 
 
 Wheeler v. Contoocook Mills, 94 Atl. 265. 
 
 Sexton v. Newark District Telegraph Co. 86 At. 451. 
 
 State v. Creamer, 85 Ohio State 349. 
 
 State v. Clausen, 117 Pac. 110. 
 
 Borgius v. Falk Company, 133 N. W. 209. 
 
 Behringer v. Inspiration Consolidated Copper Company, 149 
 Pac. 1065. 
 
 Mac kin v. Detroit Timkin Axle Company, 150 N. V/. 49. 
 
 Sayles, v. Foley, 96 Atl. 340. 
 
 Jensen v. Southern Pacific Company, 109 N. E. 600. 
 
 DeFrancesco v. Piney Mining Company, 86 £. E. 777. 
 
 Evanhoff, v. State Industrial Commission, 154 Pac. 106 
 
 Matheson v. Minneapolis Street Railway Company, 148 N. W. 72. 
 
 Hunter v. Colfax Consolidated Coal Company, 154 N.W. 1037. 
 
 Middleton v. Texas Power and Light Company, 185 S. W. 556. 
 
 Kentucky State Journal Company, v. Workmen's Compensation 
 Board, 170 S. W. 1166. 
 
 Anderson v. Carneigie Steel Company, 99 Atl. 215. 
 
 Western Indemnity Company v. Pillsbury, 151 Pac. 398. 
 
 Adams v. Iten Biscuit Company, 52 Okla* 630 
 
 New York Central Railway Company v. White, 243 U.S. 188. 
 
 Hawkins v. Bleakly, 243 U*S. 210 
 
 Mountain Timber Company v. Washington, 243 U.S. 219. 
 Middleton, v. Texas Light and Power Company, 249 U.S. 152 
 New York Central Railway Company v. Bianc. 250 U*S. 596. 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 r 
 
 
 
 ( 
 
 
 c 
 
 
 
Peters v. Veasey, 251. U.S. 149. 
 
 Knickerbocker Ice Company v. Stewart, 253 U.S. 149. 
 Thornton v. Duffy, 254 U.S. 361 
 
 Tower Vein Coal Company v. Industrial Board of Indiana, 
 
 65 L. Ed. 383. 
 
 Brant Smith-Porter Ship Company v. Rhode, 66 i. Ed. 172. 
 

 
 
 
 
VARIOUS PEASES OP LABOR LEG I SLAP ICE WITH REGARD 
 
 to 
 
 TABLE OP CONTENTS . 
 
 Page . 
 
 Introduction 
 
 
 Workmens Compensation 
 
 
 State Legislation and Court Decisions 
 to 1917.. 
 
 
 Act Widening Appeal 
 
 
 State Legislation and Decisions since 
 1917 
 
 
 Conclusion 
 
 
 
 
 * 
 
 

 . ■ ijk c 
 
 
 
 * 
 
 
 
1 . 
 
 VARIOUS PHASES OF LABOR LEGISLATION 
 WITH REGARD TO CONSTITUTIONALITY 
 
 It is the purpose of this paper to examine into the state 
 governmental action taken in regard to labor with the resulting 
 court decisions, and, in conclusion, note whether there are any 
 principles underlying the action taken and whether there is any 
 trend of opinion which regards labor in a different light than it 
 has been considered. I shall first discuss labor and the labor con- 
 tract, and then take up the various phases of state governmental 
 action. 
 
 We have expanded from a nation having a surplus of reserve 
 land to a nation in which all the arable land is taken up; from a 
 country comprised of mostly independent farmers to a country in 
 which single establishments have thousands and ten thousands of 
 workers, and one, the United States Steel Corporation, over 
 200,000. These factors have combined to produce a large class per- 
 manently dependent on wages. 
 
 Along with this we have the labor contract which, exter- 
 nally at least, appears as any other contract, but which in the 
 course of time has come to be looked upon as something peculiar, 
 due partly to the fact that when a laborer agrees to work he must 
 deliver himself up for a time into the control of another. After 
 having contracted, however, he cannot be forced to perform, for 
 this would be involuntary servitude and contrary to the thirteenth 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 , 
 
 
 
 
 
 
 
 
 
 
 
 
 
2 
 
 amendment. This principle is upheld in Bailey v. Alabama. The 
 
 court said: "The act of Congress nullifying all state laws by 
 
 which it should be attempted to enforce the service or labor of 
 
 any persons or peons, in liquidation of any debt or obligation or 
 
 otherwise, necessarily embraces all legislation which seeks to 
 
 compel the service or labor by making it a crime to refuse to or 
 
 * 
 
 fail to perform it." ~ Seamen, however, are excepted, as was 
 decided in the case of Robertson v. Baldwin, the court saying, 
 
 "We know of no better answer to make than to say that services 
 which have from time immemorial been treated as exceptional shall 
 not be regarded as within its purview." 
 
 On the other hand, many progressive laws have been over- 
 thrown because it is alleged that they impair the freedom of con- 
 tract, and thus violate the clause in the fourteenth amendment 
 which declares that a person shall not be deprived of "life, liberty 
 or property without due process of law." In the case of Lockner 
 v. New York, a New York statute forbidding any employee in a 
 bakery or confectionery establishment to be permitted to work 
 over 60 hours in any one week, or an average of over 10 hours a 
 day for the number of days employees should work, was delcared 
 
 £ 
 
 Bailey v. Alabama (1911) 219 U.S. 219, 31 Sup. Ct. 145. 
 
 Robertson v. Baldwin (1897) 165 U.S. 275, 17 Sup. 
 
 Ct. 326. 
 

 
 
 
 , 
 
 
 
 
 
 
 
 
 « 
 
 * 
 
 » 
 
 
 
 
 
3 
 
 invalid because it abridged the freedom of contract. The court 
 said: "The statute necessarily interferes with the right of con- 
 
 tract between the employer and the employees concerning the num- 
 ber of hours in which the latter may labor. The general right to 
 mate a contract in relation to his business is part of the liberty 
 of the individual protected by the fourteenth amendment of the 
 constitution. ... Statutes of the nature of that under review, 
 limiting the hours in which grown and intelligent men may labor 
 to earn their living, are mere meddlesome interferences with the 
 rights of the individual, and they are not saved from condemnation 
 by the claim that they are passed in the exercise of the police 
 power and upon the subject of the health of the individual whose 
 rights are interfered with, unless there be some fair ground, rea- 
 sonable in and of itself, to say that there is material danger to 
 the public health, or to the health of the employees, if the hours 
 of labor are not curtailed." * 
 
 Such was the early stand of the court, but it has been 
 practically overruled by the later case of Bunting v. Oregon. An 
 Oregon statute prividing that "no person shall be employed in 
 mill, factory, or manufacturing establishment in this state more 
 than ten hours in any one day, except watchmen and employees when 
 
 * lipchner v. New York (1905) 198 U.S. 45, 25 Sup. 
 
 Ct. 559. 
 

4 
 
 engaged in making necessary repairs, or in case of emergency, 
 where life or property is in imminent danger; provided, however, 
 employees may work overtime not to exceed three hours in any one 
 day, conditioned that payment he made for such overtime at the 
 rate of time and one half of the regular wage" was upheld as a 
 valid exercise of the police power because the state protected 
 the physical well-being of its citizens. "It is enough for our 
 decision if the legislation under review was passed in the exer- 
 cise of an admitted power of government (police power); and that 
 it is not as complete as it might be, not as rigid in its pro- 
 hibitions as it might be, gives, perhaps, evasion too much play, 
 is lighter in its penalties than it might be, is no impeachment 
 of its legality." * 
 
 A somev/hat different viewpoint was stressed in the case 
 of Holden v. Hardy. The court said: "The legislature has also 
 
 recognized the fact, which the experience of legislators in many 
 states has corroborated, that the proprietors of these establish- 
 ments and their operatives do not stand upon an equality, and 
 that their interests are, to a certain extent, conflicting." ** 
 
 These unusual relations between a "propertyless seller 
 
 * Bunting v. Oregon (1917) 343 U.3. 426, 37 Sup. Ot. 
 
 435. 
 
 ** 
 
 Holden v. Hardy 169 U.S. 366 
 
5 
 
 of himself, on the one hand, and a propertied buyer on the other, 
 coupled as it is with the equal suffrage of both in the politics 
 of the country, has gradually acquired recognition as something 
 sufficiently important for the government to take notice of." * 
 
 The tremendous changes in political and social conditions due to 
 the adoption of improved means of transportation and to the estab- 
 lishment of the factory system have brought with them problems 
 whose solution seems to be impossible under the principles of law 
 which were regarded as both axiomatic and permanently enduring at 
 the end of the eighteenth century.” ** Now what were some of the 
 common law doctrines with regard to the relations between employee 
 and employer? 
 
 On the one hand, the employer was required to use due 
 care for the safety of his employees while engaged in his service, 
 and this was taken to "include all reasonable means and precautions, 
 the facts in each particular case being taken into consideration."*^ 
 On the other hand, we had the doctrines of assumed risk, contrib- 
 utory negligence, and fellow- servant. In the first place we had 
 the principle of"Volenti non fit injuria" which is translated 
 
 Commons and Andrews, Principles of Labor Legislation, 
 1920, p. 2. 
 
 Goodnow, Social Reform and the Constitution, p. 1. 
 Clark, The Law of the Employment of Labor, p. 125. 
 

 
 
 
 
 
 
 
 . 
 
 
 
 
 
 
 . 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 , 
 
 
 
 
 
 
 
 
 
 , 
 
 ! 
 
 
 
 , 
 
 
 
 
 
 
 
6 . 
 
 freely to mean, "That to which a person assents is not esteemed 
 in law an injury." In other words, the employee assumed the ordin- 
 ary risks incident to the employment, "and of such other risks 
 as may he known and appreciated by him." * Besides this, in 
 order for an employee to win his case, he must establish his 
 own freedom from negligence, he must show that he has not contrib- 
 uted to the negligence of his employer. In the last instance, the 
 fellow-servant rule relieved "the master from all liability for 
 an injury sustained on account of the negligence or carelessness 
 of a fellow-servant provided the master had exercised reasonable 
 care in his selection," ** which may be easily proven. Through 
 these three loopholes many employers were able to escape, and 
 only a small number of employees received compensation for the 
 injuries sustained. Moreover, many cases did not even reach the 
 courts because the employee knew that all the odds were against 
 him. The problemceased to be an individual one, and became a 
 social evil. 
 
 At first v/e had legislative regulation; but this was 
 inadequate due to the incompleteness of these laws, to their de- 
 fective enforcement in many cases, and to the absence of well-de- 
 
 * Ibid. p. 141. 
 
 ** Commons and Andrews, Principles of Labor Legislation, 
 p. 390. 
 

 
 
 
 
 
 
 ; 
 
 « 
 
 
 
 
 , 
 
 
 
 
 
 t 
 
 
 
 
 
 
 
 . 
 
 
 , ■ f i i . * . 
 
 
 , 
 
 
 
 
 
 
 
 
 , 
 
 
 
 
 
 
 
 
 
 
 
 
7 . 
 
 fined standards. Attempts were made to place more liability upon 
 the employer, but the machinery was still too slow and expensive. 
 "Of every $100. paid by the employer in premiums, but $28. reached 
 the workman, and that amount only after a long legal action in 
 many instances." * The next step was Workmens Compensation. 
 
 "The theory of Workmen 1 s Compensation is that industry 
 should bear the loss of life and limb incurred in the production 
 of its finished product, just as it bears the expense of replacing 
 wornout and broken machinery; and that for every injury incurred 
 in the course of employment some fixed amount should be provided 
 in the way of compensation to the person incurring the injury, or 
 to his dependents in case of his death; and tti s without regard to 
 the question of fault or negligence of the employer, because many 
 injuries or deaths are bound to occur under modern conditions even 
 when the utmost care is exercised by both the employer and the 
 employee." ** The practical application of this doctrine in- 
 volves a virtual abandonment of the common law principles and many 
 statutory enactments known as "employers* liability acts." In 
 other words, an award of a fixed sum is provided for injuries 
 for which the employment is responsible instead of a suit for dam- 
 ages and the question of fault. 
 
 Ibid. p. 392. Records taken from 10 insurance com- 
 panies for a period of three years. 
 
 ** Bulletin of the Industrial Commission of Ohio. Jan. 
 
 1, 1915, p. 3. 
 
8 . 
 
 Or, as the investigating commission of the American 
 Federation of Labor and the National Civic Federation has put it: 
 "The principle of workmen's compensation is that industry should 
 bear the financial burden of all industrial accidents rather than 
 the workers who happen to be the victims of particular accidents, 
 and that the only way this can be accomplished is through the agency 
 of the employer who, in computing costs and fixing the price of his 
 finished product will include the industrial losses due to acci- 
 dents. Industrial operations being broadly considered, the ques- 
 tion of direct fault is not material. The fact that loss of bodily 
 faculty and regular wages occurs entitles the victim to compensa- 
 tion unless his injuries have been received through his own wilful 
 intent." * In this last respect workmens compensation differs from 
 employers* liability, for under the latter the employer paid dam- 
 ages only where the accident was due to his fault or the fault of 
 his employees. 
 
 Such a wide departure from established practices would, 
 under our legal system, naturally involve the question of con- 
 stitutionality, and the laws were attacked under the various grounds 
 of due process, unfair classification, freedom of contract, and 
 
 * Workmen's Compensation Report, Senate Document 419 
 63rd Congress, 2nd session. 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 , 
 
 t 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 ' 
 
 , 
 
 
 
 
 
 
 
9 . 
 
 equal protection of the law. The first act was passed by the State 
 of Maryland in 1902 in the form of a cooperative insurance law. 
 
 This statute was restricted in its application to quarrying, mining, 
 steam and street railway service, and to municipalities engaged 
 in the construction of sewers or other excavations or physical 
 structures. Liability was extended where employees were injured 
 through the negligence of a fellowservant , and where the injured 
 negligently contributed to his own injury; but the act further 
 provided that an employer might be exempted if he made certain 
 annual payments in monthly installments for the maintenance of an 
 insurance fund. This statute was declared unconstitutional in 
 1904 by the Court of Common Pleas of Baltimore on the ground that 
 it deprived parties of the right of trial by jury and conferred 
 upon an executive officer at least quasi- judicial functions. Judge 
 Stockbridge delivered the opinion as follows: "The effect of the 
 
 act was, therefore, not only to vest in the insurance commissioner 
 powers and functions essentially judicial in their character, but 
 to take away from the citizens the legal right which they had here- 
 tofore enjoyed, and which would be enforced by them in the courts, 
 and also to deny to them the right to have their cases heard before 
 a jury." * The case was not appealed to the supreme court. 
 
 * United States Bureau of Labor. Bulletin 57, p. 
 
 690. 
 

 
 : 
 
 ! 
 
 I ' 
 
 
 ' 
 
 
 
 : . 
 ! 
 
 
 
 
 
 
 
 
 
 . . 
 
10 
 
 The next act which was questioned and declared unconsti- 
 tutional was a New York: Compulsory Workmens Compensation statute 
 for certain dangerous employments such as work in the construction 
 of tunnels and subways, things charged with electric currents, 
 work on scaffolds over twenty feet high, work carried on under 
 compressed air, etc. The case was Ives v. South Buffalo Railway 
 Company, decided in March, 1911. The court did not doubt the power 
 of the legislature to regulate, modify or abolish the fellow-ser- 
 vant and the contributory negligence doctrines, but declared 
 it invalid as in conflict with this provision of their state con- 
 stitution: "The trial by jury in all cases in which it has been 
 
 heretofore used shall remain inviolate forever." The court said: 
 
 "In other words, the objection which we are now considering bears 
 solely upon the question whether the two last mentioned sections 
 of the statute (dispensing with suit for damages at common law) 
 deprive the employer of the right to have a jury fix the amount 
 which he shall pay when his liability to pay has been 
 decided against him. ... The argument that the risk to an employee 
 should be borne by the employer because it is inherent in the 
 employment may be economically sound, but it is at war with the 
 legal principle that no employer can be compelled to assume a risk 
 which is inseparable from the work of the employee, and which may 
 exist in spite of a degree of care by the employer far greater 
 than may be exacted by the most drastic law. ... We conclude, 
 therefore, that in its basic and vital features the right given 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 » » » 
 
 
 
 
 
11 
 
 to the employees hy this statute, does not preserve to the employer 
 the 'due process* of law guaranteed by the Constitutions, for it 
 authorizes the taking of the employer* s property without his con- 
 sent and without his fault," * 
 
 The next statute which was questioned was a compulsory 
 Workmen's Compensation act of Montana. The act provided: 
 
 "Section 1. : All workmen, laborers, and employees employed in 
 
 and around any coal mines, or in and around any coal washers in 
 which coal is treated, except office employees, superintendents, 
 and general managers, shall be insured in accordance with the 
 provisions of this act, against accidents occuring in the course 
 of their occupations. Section 2. All corporations, ... engaged 
 in the business of operating any coal mine or coal washers in the 
 state of Montana shall pay to the auditor of the state, within 
 five days after the monthly wages at the particular mine shall have 
 been paid, one per cent per ton on the tonnage of coal mined and 
 shipped, or sold locally, or having been mined is ready for sale 
 during the month for which the wages were paid; and all persons 
 mentioned in section one employed in and about coal mines shall 
 allow to be deducted from their gross monthly earnings one per 
 cent thereof ... ." ** Injured workmen, however, were also per- 
 
 * 
 
 ** 
 
 Ives v. South Buffalo Ry. Go. 201 N.Y. 271. (1911) 
 Montana laws of 1909. Chap. 67. 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 • 
 
 
 
 
 » 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
12 
 
 mitted to sue under the employers* liability law; but in so doing 
 forfeited the benefits under the compensation act. This law was 
 declared unconstitutional in the case of Cunningham v. Northwestern 
 Improvement Co. The court, after holding the act as within the 
 police power, not an example of class legislation, not violating 
 the trial by jury provision ("The right of trial by jury, which 
 is secured and protected by the constitution, refers to the trial 
 of cases, actions, or suits at law, and has no reference to claims 
 against an indemnity fund, such as are provided for by this act” *), 
 that it was due process of law, rested its decision on the conten- 
 tion that the employer was deprived of the equal protection of the 
 laws because the employee was given the option of suing to recover 
 damages. The opinion on this point is as follows: "The injured 
 
 employees of one operator may all resort to the indemnity fund, 
 while those of another may elect to-appeal to the courts. The 
 result is that the employer against whom an action is successfully 
 prosecuted is compelled to pay twice. He has fully paid his ass- 
 essments under the act, and is also obliged to pay damages.” ** 
 
 * Cunningham v. Northwestern Improvement Co. 44 
 
 Mont. 180. 
 
 Ibid 
 
15 . 
 
 In 1911 ten laws were enacted in the states of 
 California, Illinois, Kansas, Massachusetts, Nevada, New Hampshire, 
 New Jersey, Ohio, Washington, and Wisconsin. The laws in all but 
 two of these states, Kansas and Nevada, we re questioned, and in 
 every case their constitutionality was upheld. 
 
 One elective act which was upheld^was an Illinois stat- 
 ute questioned in the case of Leibeikis v. Link Belt Co. The 
 court emphasized the elective features and declared that because 
 of thenij neither jury- trial nor freedom of contract was denied. With 
 regard to the common law doctrines the court said: "To deprive 
 
 an employer, under such circumstances, of the right to assert 
 those defenses is not an exercise of the police power, but is merely 
 a declaration by the legislature of the public policy of the state 
 in that regard. The right of the legislature to abolish these de- 
 fenses cannot be seriously questioned." * 
 
 The Massachusetts elective act was upheld in an ad- 
 visory judicial opinion before passage. The argument was much the 
 same as that used by the Illinois court. With regard to the 
 common law defenses the Massachusetts court held that "the rules 
 of law relating to contributory negligence and assumption of the 
 
 * Deibeikis v. Link-Belt Co. 104 N.E. 211. 
 
14 . 
 
 risk and the effect of negligence by a fellow- servant were estab- 
 lished by the courts, not by the Constitution, and the Legislature 
 may do away with them altogether ... as in the exercise of powers 
 intrusted to it by the Constitution it deems will be best for the 
 ’good and welfare of this commonwealth. 1 " * Because of the 
 elective features of the act it was further held that the law did 
 not deny jury trial or freedom of contract. 
 
 The New Hampshire elective statute was upheld in the 
 case of Wheeler v. Contoocook Mills. The court held the act within 
 the police power and stated that the legislature had the power ,T to 
 abolish entirely the defenses of contributory negligence, assumption 
 of risk, and the fellow-servant rule.” ** 
 
 The Supreme Court of Hew Jersey also upheld the Compen- 
 sation statute of that state in the case of Sexton v. Newark: District 
 Telegraph Co. After stating that the common law defenses were 
 merely rules of conduct and could be changed at the will of the 
 Legislature, unless prevented by constitutional limitations, they 
 held that the elective act did not deny due process of law, jury 
 trial or freedom of contract, with regard to these the court said: 
 "If he does not (accept the provisions of the act) he certainly is 
 
 * 
 
 In re Opinion of Justices 96 N.E. 308. 
 Wheeler v. Contoocook Mills. 94 Atl. 265. 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 I 
 
 
 
 
 ' 
 
 , 
 
 
 
 
 t 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
15 . 
 
 not deprived of property without due process of law. If he does, 
 then he has given the consent which the prosecutor contends he must 
 give in order to be bound by the pro visions of the second section. 
 ... This contention (deprivation of trial by jury) totally mis- 
 conceives the proper conjtruction and effect of the constitutional 
 provision in question. The language, with respect to tills mode of 
 trial, is that it shall remain inviolate, not that it shall be 
 unalterable. It is, therefore, a privilege which may be waived 
 by either party, and not an absolute right which is not the 
 subject of such a waiver. ... Really, the matter (with regard 
 to freedom of contract) comes down to a question or presumption 
 or burden of proof, which it is entirely within the control of 
 the Legislature to regulate so long as the parties are left en- 
 tirely free to make whatever contract they choose, as they are in 
 this case." * 
 
 The constitutionality of the Ohio Compensation Law was 
 passed upon in the case of State v. Creamer. The court said: 
 
 "The statute in question provides for the creation of a State Lia- 
 bility Board of Awards, which shall establish a state insurance 
 fund, from premiums paid by employers and employees in the manner 
 provided in the act." ** The act applied only to businesses where 
 
 * Sexton v. Newark District Telegraph Co. 86 Att. 451. 
 
 ** State v. Creamer. 85 Ohio State 349. 
 
16 . 
 
 the employer had five or more operatives regularly, and the workers 
 paid 10 <fo while the employers paid 90 Employers who accepted 
 were relieved of the liability to respond in damages at common law, 
 and employers who did not accept the act were deprived of the 
 defenses of contributory negligence, fellow-servant rule, and as- 
 sumption of risk. The act was attacked as beyond the police power, 
 taking private property without due process of law, and depriving 
 parties of jury trial and freedom of contract. The court upheld 
 the act against all these contentions. With regard to the 
 police power, it quotes favorably from Freund as follows:" "The 
 term "police power" has never been circumscribed. It means at 
 the same time a power and function of government, a system of 
 rules, and an administrative organization and force.’ And in sec- 
 tion 5, after discussing its nature and aims, he says: ’It will 
 
 reveal the police power not as a fixed quantity, but as the ex- 
 pression of social, economic, and political conditions. As long 
 as these conditions vary, the police power must continue to be 
 elastic; i.e., capable of development. 1 ... We think it clear 
 that the objects and purposes as above set forth, which the leg- 
 islature contemplated in the passage of the law in question, are 
 sufficient to sustain the exercise of the police power" * In 
 
 * 
 
 Ibid. 
 

17 
 
 taking up the charge of taking private property without due pro- 
 cess of law, the court discussed the Ives case, as follows: "The 
 
 (Hew York) court held the law invalid as imposing the ordinary 
 risks of a business on the employer. The court states one of the 
 premises on which it proceeds as follows: r When our constitutions 
 
 were adopted it was the law of the land that no man who was with- 
 out fault or negligence could be held liable in damages for injuries 
 sustained by another . 1 But that rule was not of universal appli- 
 cation. At common lav; one may sustain such relation to the incep- 
 tion of an undertaking that he will be held liable for negligence 
 in the progress of the enterprise, even though he have no part 
 or connection with the negligent act itself which caused the 
 injury. ... As to the right to abolish the defense ojr assumption 
 of risk, it is enough to say here that the great weight of author- 
 ity is against the Hew York Court. ... 1 Indeed, the great office 
 of statutes is to remedy defects in the common law as they are 
 developed, and to adapt it to the changes of time and circum- 
 stances." * 
 
 The Washington statute was a compensation act with 
 compulsory insurance — a step in advance of most of the previously 
 considered compensation laws. The Supreme Court of the State of 
 
 * 
 
 Ibid. 
 

 ' 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 1 
 
 
 
 
 
 ' 
 
 
 
 
 
 
 
 
 
 
 
 
 , 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
18 . 
 
 Washington upheld this statute in the case of State v. Clausen as 
 a valid exercise of the police power, and as not violating due 
 process of law, jury trial, or freedom of contract. The court said: 
 "The test of the validity of such a law is not found in the 
 inquiry: Does it do the objectionable things? But is found rather 
 
 in the inquiry: Is there no reasonable ground to believe that 
 
 the public safety, health, or general welfare is promoted thereby? 
 ... It is not meant here to be asserted that this (police) power 
 is above the constitution, or that everything done under the police 
 power is lawfully done. It is meant only to be asserted that a 
 law which interferes with personal and property rights is valid 
 only when it tends reasonably to correct some existing evil or pro- 
 mote some interest of the state, and is not in violation of any 
 direct and positive mandate of the constitution. The clause 
 of the constitution now under consideration (due process of law) 
 was intended to prevent the arbitrary exercise of power, or undue, 
 unjust, and capricious interference with personal rights; not to 
 prevent those reasonable regulations that all must submit to as 
 a condition of remaining a member of society." * The courts are 
 beginning to take a more liberal attitude, for they realize that the 
 
 * 
 
 State v. Clausen. 117 Pac. p. 110:6-7 
 
19 . 
 
 employee and employer are not on an equal footing. 
 
 Another 1911 compensation act was questioned. It was 
 a Wisconsin statute, elective as to all employments except those 
 having less than four employees, hut employers having more than 
 four employees lost the common law defenses if they did not elect. 
 The law was attacked as to classification; hut the court held that 
 there was substantial difference between the two clauses , and 
 thus the constitution was not violated. The court further held 
 that it was not necessary to make a distinction between dangerous 
 and safe employments as a basis for abrogating common lav/ defenses, 
 and with regard to liability v/ithout fault, said, "Under the 
 statutory system for dealing w ith personal injury, losses incident 
 to the performance of the duties of an employer are regarded as 
 mutual misfortunes to be charged up, as directly as practicable, 
 to the cost of production. The right to have the employer regarded 
 as the agency to make payment to the employee and absorb the same 
 as an expense of the industry, regardless of v/hether the loss is 
 attributable to any human fault, is a legislative creation, within 
 the constitutional exercise of the police power to legislate for 
 the public welfare." * 
 
 Four compensation lav/s were enacted in 1912. Arizona, 
 
 * 
 
 Borgnis v. Falk Go 
 
 133 N.W. 209 
 

 
 
 
 ' 
 
 , 
 
 . 
 
 
 , 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
20 . 
 
 Michigan, and Rhode Island enacted acts and Maryland again tried 
 her hand at workmen’s compensation which was not questioned this 
 time. The laws of the other three states were attacked and in every 
 instance upheld. 
 
 The Arizona statute, a compulsory one as to certain 
 ennumerated hazardous employments and elective as to others^ was 
 upheld in the case of Behringer v. Inspiration Consolidated Copper 
 Co. The provision, though, giving the personal representative of 
 an employee whose injuries were fatal the option of choosing 
 between compensation and suit for damages was held beyond the power 
 of the legislature because the representative had only the right 
 
 to sue in case the injured man had failed to make election before 
 
 his death.* 
 
 The Michigan law was upheld in the case of Mackin v. 
 Detroit Timkin, 4*Le Co. ** and the Rhode Island statute was 
 upheld in the case of Sayles v. Foley. *** The arguments employed 
 
 were much the same as those used in preceding cases. 
 
 The year 1913 was another fruitful one for compensation, 
 as eight laws were enacted in the states of Connecticut, Iowa, 
 Minnesota, Nebraska, Oregon, Texas, New York, and West Virginia. 
 
 * Behringer v. Inspiration Consolidated Copper Co. 
 
 149 Pac. 1065. 
 
 
 Mackin v. Detroit Timkin <|jtf.e Co. 150 N.W. 49. 
 Sayles v. Foley, '96 Atl. 340 
 

21 . 
 
 The laws of all these states except Connecticut and Nebraska were 
 questioned before 1917. New York, after the defeat of her first act 
 in the case of Ives v. South Buffalo Railway Co. , amended her con- 
 stitution and again enacted a compulsory law which was upheld in 
 the case of Jensen v. Southern Pacific Co. The court said: "This 
 
 subject should be viewed in the light of modern conditions, not 
 those under which common-law doctrines were developed. With the 
 change in industrial conditions, an opinion has gradually developed, 
 which almost universally favors a more just and economical system 
 of providing compensation for accidental injuries to employees 
 as a substitute for wasteful and protracted damage suits, usually 
 unjust in their results. ... Surely it is competent for the 
 state in the promotion of the general welfare to require both 
 employer and employee to yield something toward the establishment 
 of a principle and plan of compensation for their mutual protection 
 and advantage."* The New York Court has at last abandoned its 
 rather conservative attitude, and swung into line v/ith general 
 public opinion. 
 
 The West Virginia statute was an elective one f and was 
 upheld in the case of De Francesco v. Piney Mining Co. With regard 
 
 * Jensen v. Southern Pacific Co. 109 NE. 600. 
 
22 . 
 
 to the abrogation of the common law defences, this court said, 
 
 "The defences inhibited or barred are such as the legislature had 
 a clear right to eliminate for reasons of public policy." * 
 
 The Oregon elective statute was upheld in the case of 
 Evanhoff v. Industrial Commission of Oregon, mainly as an exercise 
 of police power. The court in concluding its decision said: 
 
 "Before its enactment one workman out of three received a large 
 compensation for his injuries by an action at law, while the re- 
 maining two were defeated and got nothing. Now every workman ac- 
 cepting its provisions receives some compensation if injured; ... 
 
 It has been a boon to the employers, the employed, and the commun- 
 ity, which latter could formerly only offer to the injured laborer 
 the charity of the almshouse instead of that just compensation 
 which he may now receive without the humiliation of pauperism or 
 the loss of self-respect." ** 
 
 The Minnesota elective statute was sustained in the 
 case of Matheson v. Minneapolis St. Ry. Co. The court said: 
 
 "... and such choice is no less optional because section 2 (per- 
 mitting election in absence of a written statement to the contrary) 
 is presumed to have been accepted by all employers and employees. "*** 
 
 * 
 
 
 De Francesco v. Piney Mining Co. 86 ,$.E. 777. 
 
 Evanhoff v. State Industrial Commission. 154 Pac. 106. 
 Matheson v. Minneapolis St. Ry. Co. 148 N.W. 7£. 
 

 
 ! 
 
 
 
 
 
 
 
 
 
 
 
 
23 
 
 The Iowa act was upheld in the case of Hunter v. Colfax 
 Consolidated Coal Co.* and the Texas law in the case of Middleton 
 v. Texas Power and light Co. ** The decision followed much in 
 the trend of previous opinions, especially the Illinois and New 
 Jersey cases. 
 
 1914 saw the enactment of two statutes, one in Kentucky 
 and the other in Louisiana. The Louisiana law was not questioned; 
 hut the Kentucky act was attacked in the case of Kentucky State 
 Journal Co. v. Workmen 1 s Compensation Board, and declared unconsti- 
 tutional. The Kentucky constitution in section 54 provides that 
 "The General Assembly shall have no power to limit the amount to 
 he recovered for injuries resulting in death, or for injuries 
 to person or property." The Compensation Act provided that a 
 contract binding an employee to accept the provisions of the act 
 should he "conclusively presumed to have been made on his continu- 
 ing to work for the employer, posting notices that he had paid 
 premiums provided for by the act." *** The court held that 
 this part of the act did limit the amount recoverable and was thus 
 in contravention to the section 54 of the state constitution. Sec- 
 tion 241 of the constitution further gives the right to sue for 
 
 Hunter v. Colfax Consolidated Coal Co. 154 N.W. 1037. 
 
 Middleton v. Texas Power and Light Co. 185 S.W. 556. 
 
 Kentucky State Journal Co. v. Workman's Compensation 
 Board. 170 S.W. 1166. 
 
24 
 
 damages in the case of injuries causing death and the court held 
 that a law to he valid must not thus restrict the rights of per- 
 sonal representatives. The law was declared unconstitutional 
 mainly on technical grounds. In concluding its decision^ 
 the court said: "This court looks with great favor upon a work- 
 
 mens compensation act that would deal justly with the employer and 
 employee." * 
 
 Seven new states (Colorado, Indiana, Maine, Oklahoma, 
 
 Pennsylvania, Vermont, and Wyoming) enacted compensation laws in 
 
 1915; and, in addition, Montana again passed a compensation act 
 
 OklAhemq an4 
 
 — this time an elective one. Only the ^Pennsylvania statutes were 
 attacked ^ and the Pennsylvania statute was upheld in the case of 
 Anderson v. Carneigie Steel Co. ** The act was elective and 
 sustained on the same grounds as most of the other elective acts 
 had been. 
 
 The California statute of 1911 which was decided upon 
 in 1915 went farther than any preceding law. The act was of a 
 comprehensive and compulsory character, providing that "liability 
 for the compensation provided by this act, in lieu of any other 
 
 * 
 
 ** 
 
 Ibid. 
 
 Anderson v. Carnegie Steel Co. 99 Atl. 215 
 

 
 
 
 ♦ 
 
 (&._ ■ 
 
 ' 
 
 . 
 
 , 
 
 . 
 
 
 
 
 
 
 . 
 
 . 
 
 
 
 
 
 
 
 
 . 
 
 
 
 
 
 
 
 
 
 
 
25 
 
 liability whatsoever, shall, without regard to negligence, exist 
 against an employer for any personal injuries sustained by his 
 employees by accident arising out of and in the course of employ- 
 ment and for the death of any such employee if the injury shall 
 proximately cause death where the following conditions of compen- 
 sation shall concur: (1) Where, at the time of the accident 
 
 both the employer and the employee are subject to the compensation 
 provisions of this act. (2) Where, at the time of the accident, 
 the employee is performing service growing out of and incidental 
 to his employment. ... (3) Where the injury is proximately 
 
 caused by the accident, ... with or without negligence, and is 
 not so caused by the intoxication or the wilful misconduct of the 
 injured employee.” * The act was upheld in the case of the West- 
 ern Indemnity Co. v. Pillsbury, the court saying, ”If such a law 
 may be given force, the sanction for it must be found in that 
 legislative authority usually termed the police power. . . . The ar- 
 bitrary taking of life, liberty, or property cannot, of course, 
 be justified by referring the act to the police power. But, if 
 a given piece of legislation may fairly be regarded as necessary 
 or proper for the protection or furthering of a legitmate public 
 
 * 
 
 California Statutes, 1911. p. 796. Section 12. 
 
26 
 
 interest, the mere fact that it hampers private action in a mat- 
 ter which had heretofore been free from interference is not a suf- 
 ficient ground for nullifying the act." * This view shows much 
 progress in the direction of workmen's compensation, and it embodies 
 as liberal a decision as has been handed down by a state court. 
 
 This act v/as upheld after several elective laws had been upheld, 
 and with regard to the compulsory feature, the court said, " ... 
 the general line of reasoning (that elective compensation does 
 not deprive the parties of jury trial or freedom of contract, and 
 that the act is an exercise of the police power) would, if pursued 
 to its logical results, go far toward sustaining even such an 
 
 in the case ofAdams v. Iten Biscuit Company gainst the con- 
 
 tentions that it did away with due process of law and jury trial, 
 and said it was entirely proper for the legislature to abolish 
 the common law defenses. The court quoted favorably in regard to 
 these from other state courts which had upheld such acts, especially 
 from the California court which also sustained a compulsory act. 
 
 The court, after saying that the act was "in accordance with an 
 enlightened modern public opinion," **' continued as follows: 
 
 The Oklahoma law v/as also compulsory, and it was 
 
 Western Indemnity Co. v. Pillsbury, 151 Pac. 398. 
 (1915) 
 
 
 Ibid. 
 
 Adams v. Iten Biscuit Company, 630 Okalhoma 52 
 

 
 
 , 
 
 
 
 1 
 
 
 
 
 . 
 
 , 
 
 
 
 
 
 
 
 
 
 
 
 
 . 
 
27 
 
 "Instead of the losses being borne as heretofore , in a great maj- 
 ority of cases, by the injured employee or his dependent ones, it 
 was the belief that such losses should be borne by the industries 
 causing them. ... " * The act was upheld under the police power, 
 the court saying, "The security of the state and the preservation 
 of the peace and good order of society depends, in its final anal- 
 ysis, upon the power of the state to make and alter its laws in 
 accordance with a sound public policy, and to prescribe regulations 
 to promote the health, peace, morals, education and good order 
 of the people, and every member of society obtains and holds 
 all that he possesses through the aid and under the protection of 
 the law and subject to the power mentioned, else the right of the 
 community to prosper and advance and promote the public weal would 
 he rendered subservient to the enjoyment of private rights.” ** 
 
 Such were the conditions in 1916 when the power of 
 appeal from the State Supreme Court to the Federal Supreme Court 
 was widened. Four states (Maryland, Montana, Hew York and Kentucky) 
 had enacted laws which we re declared unconstitutional; but in 
 every instance these states enacted new laws which were either 
 
 * Ibid. 
 
 Ibid 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 , 
 
 
 
 
 
 
 
 
 
 
 
 
 
28 
 
 upheld or not questioned. Twenty-nine other states (Arizona, 
 California, Colorado, Connecticut, Illinois, Indiana, Iowa, 
 
 Kansas, Louisiana, Maine, Massachusetts, Michigan, Minnesota, 
 Nebraska, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, 
 
 Oregon, Pennsylvania, Rhode Island, Texas, Vermont, Washington, 
 
 West Virginia, Wisconsin, and Wyoming) had enacted statutes which 
 were either sustained or not attacked, thus making a total of thirty 
 three states which had compensation statutes. Six of these states 
 (Arizona, California, Maryland, New York, Ohio, and Oklahoma) 
 had compulsory provisions. 
 
 The act v/idening appeal was passed in September, 1916, 
 and part of it reads as follows: "It shall be competent for the 
 
 Supreme Court, by certiorari or otherwise, to require that there 
 shall be certified to it for review and determination with the 
 same power, and authority and w ith like effect as if brought up 
 writ of error, any cause wherein a final judgment or decree has 
 been rendered or passed by the highest court of a state in which 
 a decision could be had, where is drawn in question the validity 
 of a treaty or statute of, or an authority exercised under the 
 United States, and the decision is in favor of their validity; 
 or where is drawn in question the validity of a statute of, 
 or an authority exercised under any State, on the ground of their 
 being repugnant to the Constitution, treaties, or laws of the Un- 
 ited States, and the decision is against their validity; or where 
 any title, right, privilege, or immunity is claimed under the 
 

 
 
 , 
 
 
 
 
 
 
 
 r 
 
 1 ? ? 
 
 
29 
 
 the Constitution or any treaty or statute of, or commission held 
 or authority exercised under the United States, and the decision 
 is either in favor of or against the title, right, privilege, or 
 immunity especially set up or claimed by either party, under such 
 Constitution, treaty, statute, commission, or authority.” * 
 
 As a result^ appeals came to the Supreme Court. In the next 
 year, three important cases — New York Central Railway Company v. 
 White, from the state of New York; Hawkins v. Bleakly from Iowa; 
 Mountain Timber Company v. Washington — came before the Supreme 
 Court involving the validity of three different kinds of compen- 
 sation acts, and in every instance the acts were upheld. 
 
 With regard to the New York statute, the court held that 
 ”the compulsory compensation scheme of the New York Compensation 
 act, " ** abolishing the common lav/ defences and in their place 
 imposing a liability upon employers to make compensation for dis- 
 abling or fatal accidental injuries received by employees ”in the 
 course of their employment in certain gainful occupations denomin- 
 ated 'hazardous employments' without regard to fault as a cause, 
 except where the injury or death is occasioned by the employee’s 
 
 * United States Statutes, C 448 239 Stat. 726. 
 
 ** New York Central Ry. Co. v. White 243 U.S. 188. 
 

 
 
 
 
 , 
 
 
 t 
 
 
 
 
 
 
 
 
 
 , 
 
 
 r 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
30 
 
 wilful intention to produce it, or where the injury results 
 solely from intoxication while on duty, ... does not contravene 
 the United States Constitution, fourteenth Amendment as taking 
 property without due process of law, or unwarrantably limiting 
 freedom of contract, when considered from the standpoint of em- 
 ployer or employee, hut is a valid exercise of the police power 
 of the state."* The court further said: "And we recognize that 
 
 the legislation under revi ew does measurably limit the freedom of 
 employer and employee to agree respecting the terms of employment, 
 and that it cannot be supported except on the ground that it is a 
 reasonable exercise of the police paver of the state. In our 
 opinion it is fairly supportable upon that ground. And for this 
 reason: The subject matter in respect of which freedom of contract 
 is restricted is the matter of compensation for human life or 
 limb lost or disability incurred in the course of hazardous employ- 
 ment, and the public has a direct interest in this as affecting 
 the common welfare. 'The whole is no greater than the sum of all 
 the parts, and when the individual health, safety, and welfare are 
 sacrificed or neglected, the state must suffer.' Holden v. Holden, 
 169 U.S. 366. ... Laws regulating the responsibility of employers 
 for the injury or death of employee 9, arising out of the employ- 
 
 * 
 
 Ibid 
 
31 . 
 
 ment, bear so close a relation to the protection of the lives and 
 safety of those concerned that they properly may be regarded as 
 coming within the category of police regulations." * 
 
 The next case which came up was the one questioning the 
 validity of the Iowa elective compensation statute, ** and the Iowa 
 act was naturally upheld after a reference to the New York Case. 
 
 The Washington act, however, presented a different prob- 
 lem, for in that state employers in the specified hazardous employ- 
 ments were compelled to pay workmen* s compensation premiums to a 
 state insurance fund. The statute was attacked as denying due 
 process of law, the equal protection of the law, and beyond the 
 police power. The act was sustained, nevertheless, but by only a 
 five to four decision. In taking up this case, the court judged 
 it, "proper to consider: fl) Whether the main object of the 
 
 legislation is, or reasonably may be deemed to be, of general 
 and public moment, rather than of private and particular interest, 
 so as to furnish a just occasion for such interference with personal 
 liberty and the right of acquiring property as necessarily must 
 result from carrying it into effect. (2) Whether the charges 
 imposed upon employers are reasonable in amount, or, on the other 
 
 * Ibid 
 
 ** Hawkins v. Bleakly, 243 U.S. 210 
 

 
 
 
 
 
 
 
 
 
 ' 
 
 
 
 
 
 
 
 
 
 
 , 
 
 
 
 
 
32. 
 
 hand, so burdensome as to be manifestly oppressive, and {3) 
 whether the burden is fairly distributed, having regard to the 
 causes that give rise to the need for the legislation. ... 
 
 As to the first point: The authority of the states to enact such 
 
 laws as reasonably are deemed to be necessary to promote the health, 
 safety, and general welfare of their people carries with it a 
 wide range of judgment and discretion as to what matters are of 
 sufficiently general importance to be subjected to state regulation 
 and administration. ... (The State) may require that these 
 human losses shall be charged against the industry, either directly 
 ... or by publicly administering the compensation and distributing 
 the cost among the industries affected. ... Upon this 
 (the second) point no particular contention is made that the compen- 
 sation allowed is unduly large; and it is evident that, unless 
 it be so, the corresponding burden upon the industry cannot be 
 regarded as excessive if the state is at liberty to impose the en- 
 tire burden upon the industry. ... Upon the third question — 
 the distribution of the burden — there is no criticism of the 
 act in its details.”* 
 
 In the following year the Texas case was appealed to 
 
 * Mountain Timber Co. v. Washington. 243 U.S. 219. 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 . 
 
 
 
 
 < 
 
 
 
 
 
 
 
 ... . 
 
 
 , 
 
 
 
 . . . 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
33. 
 
 the federal Supreme Court, and attached as making an unfair clas- 
 sification, denying equal protection of the lav/s and due process 
 of law. Employers having less than five employees, and certain 
 other industries such as farming were excepted; but the court 
 held that it was "not such an arbitrary classification as to deny 
 the equal protection of the laws." * The other contentions were 
 disposed of by a reference to the New York and Washington cases. 
 
 The next case. New York Central Railway Company v. 
 
 Bianc, came up as the result of an amendment to the New York Act, 
 which reads as follows: "In case of an injury resulting in ser- 
 
 ious facial or head disfigurement the Commission may in its dis- 
 cretion, make such award or compensation as it may deem proper and 
 equitable, in view of the nature of the disfigurement, but not to 
 exceed three thousand five hundred dollars." ** The Supreme 
 Court, however, upheld the act, saying that "the 'due process of 
 law' clause of the fourteenth Amendment does not require the states 
 to base compulsory compensation solely upon loss of earning power." 
 
 Two other cases came up in 1919, both of them relating 
 to admiralty and maritime jurisdiction. The Judicial Code of the 
 
 * 
 
 
 Middleton v. Texas Light and Power Co. 249 U.S. 152 
 New York Laws. 1916. Chap. 622. sec. 15. 
 
 New York Central Ry. Co. v. Bianc. 250 U.S. 596. 
 

 
 
 
 
 
 
 
 
 
 
34 . 
 
 United States provided that the jurisdiction of the United States 
 courts should he exclusive of "all civil cases of admiralty and 
 maritime jurisdiction, saving to suitors, in all cases, where the 
 common law remedy, where the common law is competent to give 
 it."* This was amended on October 6, 1917 by adding the words, 
 "and to claimants the rights and remedies under the Workmen's 
 Compensation Law of any State." ** *** In the case of Peters v. Yeasey, 
 *** the Federsl Supreme Court reversed a judgment of the Louisiana 
 Supreme Court which held that the amendment had retroactive 
 effect. In the second case, Knickerbocker Ice Compant v. Stewart, 
 the amendment itself, upon the ground of the exclusiveness of Federal 
 jurisdiction, was declared unconstitutional as beyond the power of 
 Congress "to legislate concerning rights and liabilities within 
 the maritime jurisdiction." **** 
 
 Three other cases involving workmen's compensation have 
 come up before the Supreme Court. In the first, Thorton v. Duffy, 
 the court held that a "ruling of a state (Ohio) industrial commis- 
 
 * Judicial Code, Clause Third. 256. 
 
 ** U. S. Statutes, Chap. 97, 40 Stat. at L. 395. 
 
 *** Peters v. Yeasey 251 U.S. 121 
 
 **** Knickerbocker Ice Co. v. Stewart. 253 U.S. 149. 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 . 
 
 
 
 
 
 
 
 
 
 
 
 
 t 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 , 
 
 . * 
 
 
 
 
 
 
 
 
 
 
35 
 
 sion, justified or demanded by a change in the state law, by which 
 the commissioner, revoking its previous discretionary action, de- 
 clares that no employers shall be permitted to pay or furnish di- 
 rectly to injured employees or to the dependents of killed em- 
 ployees the compensation and benefits provided for in the state 
 Workmen’s Compensation Law if such employees, by contract or other- 
 wise, ahall provide for the insurance of the payment by them of 
 such compensation and benefits, or shall indemnify themselves ag- 
 ainst loss sustained by the direct payment thereof, does not 
 unconstitutionally impair the obligations of insurance contracts 
 entered into upon the faith of the previous ruling of the commission, 
 nor does such ruling amount to a denial of due process of law or 
 of the equal protection of the laws." * The courted cited favorably 
 from the New York and especially the Washington case, and added 
 that "the law expressed the constitutional and legislative policy 
 of the state to be that the compensation to workmen for injuries 
 received in their employment was a matter of public concern, 
 and should not be left to the individual employer or employee, 
 or be dependent upon or influenced by the hazards of controversy 
 or litigation, or unequality of conditions." ** 
 
 * Thornton v. Duffy. 254 U.S. 361. 
 
 ** Ibid. 
 

 
 
 
 
 
 
 
 
 
 , 
 
 , 
 
 
 
 
 
 
 
 , 
 
 
 
 
 
 
 
 
 
 
 
 
 Hi 
 
 
 
 
 
 ; ' . ..~:r - • 
 
 
 
36 
 
 In the next ease, Tower Vein Goal Company v. Industrial 
 
 Board of Indiana, the court held that a state might "consistently 
 
 with the due process of law and equal protection of the laws clauses 
 
 of the Federal Constitution, enact a general workmen 1 s compensation 
 
 law applicable to all employees, and make it compulsory as to one 
 
 hazardous employment (coal mining) and elective as to all others, 
 
 except railway employees engaged in train service, who are excluded." 
 * 
 
 In the last, a minor case, it was held that the general 
 admiralty jurisdiction extended to a "proceeding to recover damages 
 resulting from a tort committed on a vessel in process of construc- 
 tion when lying on navigable waters within a state." ** 
 
 These federal decisions together with the state supreme 
 court decisions, have finally assured the constitutionality of 
 workmen* s compensation. Today the trend of legislation lies in 
 the direction of more adequate and certain relief, and the simpli- 
 fication of procedure to accomplish the desired end of prompt and 
 equitable consideration of claims on account of industrial 
 
 injuries." *** _ Besides this, ten additional states (Deleware, Jdciho, 
 /vp'sioi/r/, b«u> A/cji’to, /Y<>rT6 
 
 Georgia,,, South Dakota, Utah, Kansas, and Tennessee) have enacted 
 
 * Tower Vein Coal Co. v. Industrial Board of Indiana, 
 
 65 L. ed. 383. 
 
 
 Grant Smith--Porter Ship Co. v. Rhode. 66 L. ed. 172 
 Monthly Labor Review, April, 1921. p. 417. 
 

 
 . ■* • . 
 
 
 , 
 
 < - p 
 
 f 
 
 
 
 
 
 
 
 
 
 
 ’ 
 
 . 
 
 t 
 
 * 
 
 . . 
 
 
 
 
 
 
 
 
37 
 
 compensation acts, thus making a total of forty- three states with 
 such provisions. 
 
 In cnncluding, we may note that there is one underlying 
 principle in the legislative action^ based upon the fact that the 
 employer and employee are no longer on an equal footing. The 
 legislature has then attempted to place them upon a more equal 
 plane, but the courts have been sloner and more conservative in 
 adopting this view. Part of this may be explained by a legal 
 theory which held that law was based on certain principles of 
 justice which were eternal and immutable. This led to the idea 
 that legal right was an unchanging thing, and there was a (, tendency 
 in the legal mind to regard constitutions as unchanging. * Having 
 set up certain rules, the courts were loathe to abandon them. In 
 time, however, the pressure of a general public opinion and the 
 actions of the legislatures, have forced the courts to give way. 
 Modifications were made slowly^but inevitably. "Rights generally 
 regarded as absolute are coming to be regarded after all as only 
 relative." ** The courts have finally accepted the view that the 
 workmen and employer are not equal, and have acted accordingly. 
 
 * Groat, Attitude of American Courts in Labor Cases, 
 
 p. 360 
 
 Ibid. p. 117.