Efforts to pass compensation acts in the United States been guilty of any fault, the obligation to pay compensation for injuries occurring by reason of a danger which was inherent in and inseparable from a particular employment, resulted in the taking of property without due process of law under the Fourteenth Amendment to the Federal Constitution and under § 6, Article I, of the State Constitution.1 In the same year that the compulsory law, which was held to be unconstitutional, was passed, the Legislature of New York also adopted an elective compensation law. (L. 1910, c. 354; Labor Law, §§ 205-212.) This act has been a dead letter. After the decision in the Ives case the New York Legislature passed a constitutional amendment permitting the enactment of a compulsory law and the amendment was adopted by vote of the people at the election in 1913. In the same year the Legislature, which was then convened in Special Session, passed the Act found in other portions of this work. Undoubtedly the Ives case had a profound effect on all subsequent legislation in the United States on this subject. It did not, however, have the effect of entirely stopping the efforts to secure such legislation. New Jersey was the first to hit upon a plan of adopting an elective or optional workmen's compensation law. That is, employers were permitted to elect whether they would accept the principles of the compensation act and agree to pay their workmen the schedule of compensation provided in the law in all instances where they were injured or killed, or would elect to stand on their common-law rights, in which latter event the law provided that all the common-law defenses of assumption of risk, contributory negligence and negligence of fellow servant should be denied to the employer. Other States followed rapidly in the footsteps of New Jersey until, at the present writing, there are compensation laws of various kinds in Ari 1 See a discussion of the constitutional question, post, page 11. "Elective" laws and constitutional question involved zona, California, Connecticut, Illinois, Iowa, Kansas, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, Nevada, New Hampshire, New Jersey, New York, Ohio, Oregon, Rhode Island, Texas, Washington, West Virginia and Wisconsin, and in various other States the matter is under consideration. 7. "Elective" laws and the constitutional question involved. There is an important distinction between the New Jersey law and those of many of the other States, as to the manner in which the election is made. In New Jersey and some other States employers and employés are presumed to have elected to have adopted the compensation principle, unless they take some affirmative action indicating a contrary intention. In other commonwealths employers must take some affirmative action in order to adopt the compensation principle. The distinction is important so far as the practical operation of the acts is concerned. There is a constitutional question involved also. The United States Supreme Court has not yet passed upon the constitutionality of any of the workmen's compensation acts of the various States. Statutes which are elective in form, but under which the election must be indicated by an affirmative act on the part of the employer, have been sustained by the courts of last resort of Massachusetts,1 Ohio 2 and Wisconsin. The New Jersey act which contains the presumptive election 1Opinions of Justices, 209 Mass. 607; 96 N. E. Rep. 308; Bradbury's Workmen's Compensation and State Ins. L. (1st Ed.), p. 650; 1 N. C. C. A. 557. This decision was made in advance of the enactment of the law under a provision of the Massachusetts Constitution, which permits the Legislature to ask the advice of the court as to whether or not a proposed law is constitutional. State ex rel. Yaple v. Creamer, 85 Ohio St. 349; 97 N. E. Rep. 602; Bradbury's Workmen's Compensation and State Ins. L. (1st Ed.), p. 764; 1 N. C. C. A. 30. 3 › Borgnis v. Falk Co., 147 Wis. 327; 133 N. W. Rep. 209; Bradbury's "Elective" laws and constitutional question involved feature, has been sustained by the Supreme Court 1 of that State, which is a court of intermediate appellate jurisdiction, and the case is now on appeal to the Court of Errors and Appeals, which is the court of last resort of that State. In the State of Washington a compulsory State insurance law, which is applicable to certain hazardous industries, has been sustained by the court of last resort of that State,2 and by the United States District Court. The question of the constitutionality of the New Jersey act has been discussed in two New York cases.4 Opinions have differed among lawyers who have given close study to the question, whether there is any real distinction, from a constitutional point of view, between a presumptive election and one in which the election is indicated by an affirmative act. If the presumption was absolutely conclusive, without any possible escape, undoubtedly such a provision would be invalid, assuming of course that the legislature has not the power to pass a compulsory compensation act. But in the statutes containing the presumptive feature, such as New Jersey for example, the employer can destroy the presumption by simply filing a notice to that effect with the proper authorities. Such a presumption is one with which we are entirely familiar. The right to a trial by jury is absolute, in actions at law as distinguished from suits in equity, except in a very limited class of cases. We see this Workmen's Compensation and State Ins. L. (1st Ed.), p. 656; 3 N. C. C. A. 649. 1 Sexton v. Newark District Telegraph Co., N. J. Law, bury's Pl. and Pr. Rep. 221; 3 N. C. C. A. 569; 86 Atl. Rep. 451. ; 2 Brad 2 State v. Clausen, 65 Wash. 156; 117 Pac. Rep. 1101; Bradbury's Workmen's Compensation and State Ins. L. (1st Ed.), p. 703; 3 N. C. C. A. 599. 3 Stoll v. Pacific Coast Steamship Co., 205 Fed. 169; Market World and Chronicle of N. Y., May 24, 1913; 3 N. C. C. A. 606, note. ♦ Albanese v. Stewart, 2 Bradbury's Pl. and Pr. Rep. 189; Pensabene v. Auditore Co., 2 Bradbury's Pl. and Pr. Rep. 197; same case on appeal to Appellate Division, 2 Bradbury's Pl. & Pr. Rep. 212. "Elective" laws and constitutional question involved right waived by presumption hundreds of times every day in Municipal Courts in New York City, in the courts of Justices of the Peace throughout the other portions of that State, and in many other tribunals throughout the country. The parties to an action in these courts usually are conclusively presumed to have waived the right to a trial by jury unless they take some affirmative action before the case has progressed beyond a certain point. Many other important rights may be waived, presumptively, by inaction. It has been urged, therefore, with a good deal of force that the manner of making the election— whether by affirmative action or by inaction-is of very little importance from a constitutional standpoint. Those who have urged that the election should be made by an affirmative act, have taken the position that there could be no doubt of the binding effect of an election by an employer to adopt the compensation principle, when this election was indicated by an affirmative act on the part of one who was free to do as he might choose. Those who use this argument, however, entirely neglect to take into consideration the fundamental moving cause of any such election. Furthermore, with somewhat refreshing inconsistency, they proceed to make the election on the part of the workmen a presumptive one, even in those statutes under which the employer must indicate his election to adopt the compensation principle by some affirmative action. Undoubtedly, if the presumptive election as applied to employers would make a compensation law unconstitutional, the statute would be just as invalid should this principle be applied to employés alone. If, therefore, there is any constitutional point in the distinction between a presumptive and an affirmative election it applies with full force to those statutes where the election of the employé is presumed even though the employer must indicate his election by an affirmative act.1 1 The rule of presumptive election when applied to both employers and "Elective" laws and constitutional question involved But as indicated in the foregoing it is not believed that there is any real distinction. The important and fundamental point for consideration is the right of the legislature to put in force that portion of the statute which compels or induces the employer to elect to adopt the compensation principle at all. This compulsion or inducement is plainly an expedient to avoid the effect of the decision of the Court of Appeals in the Ives case. The legal point involved as to the validity generally of the elective compensation acts is contained in this one question: May the Legislature entirely abolish the defenses of assumption of risk, contributory negligence and negligence of fellow servant? If it has power to do employés has at least the virtue of uniformity. Doubtless, therefore, such a rule would be easier to support, on constitutional grounds, than one which requires employers to take some affirmative action to indicate their election to adopt the compensation principle while the rule of presumptive election is invoked against employés alone. The most important consideration, from a practical standpoint, however, is the fact that under the presumptive rule the careless employer and the one who, in a state of mental doubt, does nothing, will both be brought under the compensation principle, while under the contrary rule they would still remain under the common law. This is especially true as to small employers. The accuracy of this prediction is amply demonstrated by the experience in New Jersey and other States. The compensation act of New Jersey applies to all except casual employés, including farm laborers and domestic servants. Notwithstanding this fact and in spite of the further fact that the law has been in operation longer than any other compensation statute in the United States, except the Federal act applying solely to certain Government employés, nevertheless only four employers in New Jersey have ever filed a notice of rejection of the compensation principle. This is considerably better than the record of any other State. In Massachusetts a very large majority of the employers have adopted compensation, and this is true also in Michigan, but in no other State can the record compare with that of New Jersey, in so far as the percentage of employers who have adopted the compensation principle is in proportion to all the employers of the State is concerned. The Wisconsin law as first adopted required the employer to take some affirmative step to adopt the compensation principle. The Legislature saw the advantages of a presumptive election and by an amendment in 1913 the presumptive feature was adopted. |