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making compensation an exclusive remedy and depriving the employee of the power to sue, would take away as valid a right as that which an employer has to have the questions involved determined by due process of law. By election, of course, the parties adopt the provisions of the statutes as a part of the contract of employment, in the exercise of their right to contract freely. It may here be noted that in continental Europe the right to sue is entirely superseded by the provisions of the compensation or insurance systems adopted; and that in Great Britain, while the right to sue is retained, it is of small practical importance, the great majority of injury cases being taken up under the compensation law. It may also be remarked that no country having once adopted a compensation or insurance system has ever returned to the liability system.
The arguments for constitutionality are supported in the reports by citations to cases a considerable number of which are mentioned in the article in Bulletin No. 90, previously referred to. A case not there mentioned but referred to with considerable emphasis in some of the reports is that of Bertholf v. O'Reilly (74 N. Y. 509), in which a law of the State of New York giving redress against owners of saloon property for damages resulting from the sale of liquor by a tenant was upheld as constitutional. This was cited to show that personal fault is not necessary to charge liability, and that new liabilities might be created by statute. The recent opinion of the Supreme Court in the case of Noble State Bank v. Haskell (219 U. S. 104; 31 Sup. Ct. 186), is also cited as setting forth the rights of the State in the exercise of its police power. The law under consideration in this case was that of Oklahoma creating a depositors' guaranty fund to which State banks were to contribute as a means of guaranteeing deposits in banks that may become insolvent. The bank contended that the statute deprived it of property without due process of law in requiring payments for the ultimate or possible benefit of depositors in other banks, thus violating the provisions of the fourteenth amendment to the Federal Constitution. Justice Holmes, speaking for a united court, said:
In answering that question, we must be cautious about pressing the broad words of the fourteenth amendment to a drily logical extreme. Many laws which it would be vain to ask the court to overthrow could be shown, easily enough, to transgress a scholastic interpretation of one or another of the great guaranties in the Bill of Rights. They more or less limit the liberty of the individual, or they diminish property to a certain extent. We have few scientifically certain criteria of legislation, and as it often is difficult to mark the line where what is called the police power of the States is limited by the Constitution of the United States, judges should be slow to read into the latter a nolumus mutare as against the lawmaking power.
The substance of the plaintiff's argument is that the assessment takes private property for private use without compensation. And while we should assume that the plaintiff would retain a reversionary interest in its contribution to the fund, so as to be entitled to a return of what remained of it if the purpose were given up (see Danby Bank v. State Treasurer, 39 Vt., 92, 98), still there is no denying that by this law a portion of its property might be taken without return to pay debts of a failing rival in business. Nevertheless, notwithstanding the logical form of the objection, there are more powerful considerations on the other side. In the first place, it is established by a series of cases that an ulterior public advantage may justify a comparatively insignificant taking of private property for what, in its immediate purpose, is a private use. [Cases cited.) And in the next it would seem that there may be other cases beside the everyday one of taxation, in which the share of each party in the benefit of a scheme of mutual protection is sufficient compensation for the correlative burden that it is compelled to assume. At least, if we have a case within the reasonable exercise of the police power as above explained, no more need be said.
It may be said in a general way that the police power extends to all the great public needs. (Camfield v. United States, 167 U. S., 518; 17 Sup. Ct., 864.) It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare. If, then, the legislature of the State thinks that the public welfare requires the measure under consideration, analogy and principle are in favor of the power to enact it.
We can not say that the public interests to which we have adverted, and others, are not sufficient to warrant the State in taking the whole business of banking under its control. On the contrary, we are of opinion that it may go on from regulation to prohibition except upon such conditions as it may prescribe. In short, when the Oklahoma Legislature declares by implication that free banking is a public danger, and that incorporation, inspection, and the above-described cooperation are necessary safeguards, this court certainly can not say that it is wrong.
It has been stated that the court of appeals of New York declared the compulsory compensation law of that State covering designated dangerous employments (Acts of 1910, ch. 674; see Bulletin No. 90, pp. 713, 714) unconstitutional. The case was first heard in the supreme court (Erie County), in which the statute was held to be a valid exercise of the police power of the State, quoting from an opinion of the United States Supreme Court to the effect that the Federal Constitution, which is necessarily and to a large extent inflexible and exceedingly difficult of amendment, should not be so construed as to deprive the States of the power to so amend their laws as to make them conform to the wishes of the citizens as they may deem best for the public welfare without bringing them into conflict with the supreme law of the land.” (Holden v. Hardy, 169 U. S. 366; 18 Sup. Ct. 383.) The right to classify and legislate for dangerous employments was supported by reference to the decision in the case
Missouri P. R. Co. v. Mackey (127 U.S. 205, 8 Sup. Ct. 1161). Judgment was therefore rendered in favor of the plaintiff (Ives v. South Buffalo Railway Co., 124 N. Y. Supp. 920), whereupon the company appealed, securing a reversal of this judgment. The court of appeals in its opinion (pp. 253 to 275) admits “the cogent economic and sociological arguments which are urged in the support of the statute," but finds itself powerless, under its conception of the limitations set by the State constitution, to do other than hold the law invalid as taking the property of the employer without due process of law. The cases cited by the supporters of the law are considered and the conclusion reached that they do not in fact sustain it as valid.
The conclusion that in considering the question of constitutionality the weight of economic reasoning can not control is of interest in comparing this discussion with the efforts of the courts to justify their departure from the doctrine of respondeat superior in accepting the defense of fellow service. The reasons offered by the courts for this rule have been various, one being found in the view that the master's responsibil:ty is at an end when he has used ordinary care to employ competent servants. It is held that the employee assumes the risk of the possible negligence of a coemployee as one of the incidents of employment. (Hough v. Texas & P. R. Co., 100 U: S. 213; 25 L. Ed. 612.) In another opinion of our Supreme Court it was said that the obvious reason for exempting the employer from liability is that the employee has or is supposed to have such risks in contemplation when he engaged in the service, and his compensation is arranged accordingly, so that he can not in reason complain if he suffers from a risk which he has voluntarily assumed, and for the assumption of which he is paid. (Chicago, M. & St. P. R. Co. v. Ross, 112 U. S. 377; 5 Sup. Ct. 184.) Another reason is found in alleged grounds of public policy as tending to make the employees more watchful over their own conduct and that of their fellows, thus benefiting employers, employees, and the public alike by the greater care with which they perform their duties. (Chicago, M. & St. P. R. Co. v. Ross, supra.) In close connection herewith is the claim that any marked enlargement of liability to capital would lead to the withdrawal of capital from industrial enterprise, thus reducing the opportunities of employment and inflicting damage upon the whole community. (New Pittsburg Coal & C. Co. v. Peterson, 136 Ind. 398; 35 N. E. 7.) The last two reasons have perhaps been most frequently relied on as supporting the customary rule, though no such results as are therein indicated have followed the adoption of statutes greatly enlarging the rights of employees to recover for injuries following upon industrial accidents.
The finding of unconstitutionality as to the compulsory statute has of course no effect on the elective statute previously enacted; nor does it affect the amendments to the liability law of the State incorporated in the same chapter. A proposition looking toward an amendment to the State constitution, authorizing a compulsory compensation law, was under consideration by the legislature as this article was concluded.
Following are the laws, bills, and drafts discussed above and not previously reproduced:
TEXT OF LAWS,
ACT APPROVED APRIL 8, 1911. Section 1. In any action to recover damages for a personal injury sustained within this State by an employee while engaged in the line of his duty or the course of his employment as such, or for death resulting from personal injury so sustained, in which recovery is sought upon the ground of want of ordinary or reasonable care of the employer, or of any officer, agent or servant of the employer, the fact that such employee may have been guilty of contributory negligence shall not bar a recovery therein where his contributory negligence was slight and that of the employer was gross, in comparison, but the damages may be diminished by the jury in proportion to the amount of negligence attributable to such employee, and it shall be conclusively presumed that
such employee was not guilty of contributory negligence in any case where the violation of any statute enacted for the safety of employees contributed to such employee's injury; and it shall not be a defense:
(1) That the employee either expressly or impliedly assumed the risk of the hazard complained of.
(2) That the injury or death was caused in whole or in part by the want of ordinary or reasonable care of a fellow servant.
Sec. 2. No contract, rule or regulation, shall exempt the employer from any of the provisions of the preceding section of this act.
Sec. 3. Liability for the compensation hereinafter provided for, in lieu of any other liability whatsoever, shall, without regard to negligence, exist against an employer for any personal injury accidentally sustained by his employees, and for his death if the injury shall approximately cause death, in those cases where the following conditions of compensation concur:
(1) Where, at the time of the accident, both the employer and employee are subject to the provisions of this act according to the succeeding sections hereof.
(2) Where, at the time of the accident, the employee is performing service growing out of and incidental to his employment and is acting within the line of his duty or course of his employment as such.
(3) Where the injury is approximately caused by accident, either with or without negligence, and is not so caused by the willful misconduct of the employee.
And where such conditions of compensation exist for any personal injury or death, the right to the recovery of such compensation pursuant to the provisions of this act, and acts amendatory thereof, shall be the exclusive remedy against the employer for such injury or death, except that when the injury was caused by the personal gross negligence or willful personal misconduct of the employer, or by reason of his violation of any statute designed for the protection of employees from bodily injury, the employee may, at his option, either claim compensation under this act, or maintain an action for damages therefor; in all other cases the liability of the employer shall be the same as if this and the succeeding sections of this act had not been passed, but shall be subject to the provisions, of the preceding sections of this act.
Sec. 4. The following shall constitute employers subject to the provisions of this act within the meaning of the preceding section:
(1) The State, and each county, city and county, city, town, village and school districts and all public corporations, every person, firm, and private corporation, (including any public service corporation) who has any person in service under any contract of hire, express or implied, oral or written, and who, at or prior to the time of the accident to the employee for which compensation under this act may be claimed, shall, in the manner provided in the next section, have elected to become subject to the provisions of this act, and who shall not, at the time of such accident, have withdrawn such election, in the manner provided in the next section.
Sec. 5. Such election on the part of the employer shall be made by filing with the industrial accident board, hereinafter provided for a written statement to the effect that he accepts the provisions of this act, the filing of which statement shall operate, within the meaning of section three of this act, to subject such employer to the provisions of this act and all arts amendatory thereof for the term of one year from the date of the filing of such statement, and thereafter, without further act on his part, for successive terms of one year each, unless such employer sball, at least sixty days prior to the expiration of such first or any succeeding year, file in the office of said board a notice in writing to the effect that he withdraws his election to be subject to the provisions of the act.
Sec. 6. The term "employee" as used in section three of this act shall be construed to mean:
(1) Every person in the service of the State, or any county, city and county, city, town, village or school district therein, and all public corporations, under any appointment or contract of hire, express or implied, oral or written, except any official of the State, or of any county, city and county, city, town, village or school district therein or any public corporation, who shall have been elected or appointed for a regular term of one or more years, or to complete the unexpired portion of any such regular term.
(2) Every person in the service of another under any contract of hire, express or implied, oral or written, including aliens, and also including minors who are legally permitted to work under the laws of the State, (who, for the purposes of the next section of this act, shall be considered the same and shall have the same power of contracting as adult employees), but not including any person whose employment is but casual and not in the usual course of the trade, business, profession or occupation of his employer.
Sec. 7. Any employee as defined in subsection (1) of the preceding section shall be subject to the provisions of this act and of any act amendatory thereof. Any employee as defined in subsection (2) of the preceding section shall be deemed to have accepted and shall, within the meaning of section 3 of this act be subject to the provisions of this act and of any act amendatory thereof, if, at the time of the accident upon which liability is claimed:
(1) The employer charged with such liability is subject to the provisions of this act, whether the employee has actual notice thereof or not; and
(2) At the time of entering into his contract of hire, express or implied, with such employer, such employee shall not have given to his employer notice in writing that he elects not to be subject to the provisions of this act, or, in the event that such contract of hire was made in advance of such employer becoming subject to the provisions of the act, such employee shall, without giving such notice, remain in the service of such employer for thirty days after the employer has filed with said board an election to be subject to the terms of this act.
Sec. 8. Where liability for compensation under this act exists the same shall be as provided in the following schedule:
(1) Such medical and surgical treatment, medicines, medical and surgical supplies, crutches and apparatus, as may be reasonably required at the time of the injury and thereafter during the disability, but not exceeding ninety days, to cure and relieve from the effect of the injury, the same to be provided by the employer, and in case of his neglect or refusal seasonably to do so, the employer to be liable for the reasonable expense incurred by or on behalf of the employee in providing the same: Prorided, however, That the total liability under this subdivision shall not exceed the sum of $100.
(2) If the accident causes disability, an indemnity which shall be payable as wages on the eighth day after the injured employee leaves work as the result of the injury, and weekly thereafter, which weekly indemnity shall be as follows:
(a) If the accident causes total disability, sixty-five per cent of the average weekly earnings during the period of such total disability: Provided, That if the disability is such as not only to render the injured employee entirely incapable of work, but also so helpless as to require the assistance of a nurse, the weekly indemnity during the period of such assistance shall be increased to one hundred per cent of the average weekly earnings.
(b) If the accident causes partial disability, sixty-five per cent of the weekly loss in wages during the period of such partial disability.
(c) If the disability caused by the accident is at times total and at times partial, the weekly indemnity during the periods of each such total or partial disability shall be in accordance with said subsections (a) and (b) respectively. (d) Said subsections (a), (b) and (c) shall be subject to the following limitations:
Aggregate disability indemnity for a single injury shall not exceed three times the average annual earnings of the employee.