an end so unreasonable or arbitrary as not to be within the legislative discretion? or, Has it sought a legitimate end by similarly unreasonable or arbitrary means? If these questions are answered in the negative, and the statute violates no definite or historically well-settled principles of private right, it should be held to be due process. In the light of human experience during the past generation throughout the civilized industrial world, can a statute be said to be unreasonable or arbitrary that places upon the person conducting a hazardous business the risk of personal injury to those employed in it? By a system of insurance this risk, like those from fire, will at once be spread over the whole industry, added to the cost of its product, and borne by society, which also gets the benefit from the industry and its hazards.

Some of the illustrations used by the New York court in argument, if meant in full seriousness, show a failure to appreciate the principle of the statute. For instance, the court says:

"If the legislature can say to an employer, 'You must compensate your employé for an injury not caused by you or by your fault,' why can it not go farther and say to the man of wealth, 'You have more property than you need and your neighbor is so poor that he can barely subsist; in the interest of natural justice you must divide with your neighbor so that he and his dependents shall not become a charge upon the state?"

And Chief Justice Cullen suggests that a law might as well compel a man to pay his neighbor's debts as to shift to him the risk of injury to men employed in his hazardous employment. The difference between making a business bear its own inherent risks, and making well-to-do persons divide their property with the needy generally or assume their debts is sufficiently obvious

even to the lay mind, and the use of such illustrations sensibly weakens an opinion already unconvincing.

It is impossible to believe that this decision will stand as the final interpretation of "due process of law" in American constitutions applicable to workingmen's compensation acts. As the United States Supreme Court said in 1898 regarding the meaning of this constitutional provision,

"In view of the fact that from the day Magna Charta was signed to the present moment, amendments to the structure of the law have been made with increasing frequency, it is impossible to suppose that they will not continue, and the law be forced to adapt itself to new conditions of society, and particularly the new relations between employers and employés, as they arise."5

§ 59. Reasons for upholding view of court.—The opinions of lawyers and publicists who espouse the views of Professor Hall, and contend for the constitutionality of the New York compensation act are burdened with the assumption that there is no other remedy which is adequate and available and which the Legislature of New York might not readily adopt and at the same time come within the constitutional limitation of "due process of law," and be sound from the standpoint of economics. From the point of view of the author, herein lies the error of their reasoning and the wisdom of the constitutional limitations of the State and Federal constitutions, and the wisdom in this respect of the opinion of the Supreme Court of New York.

Good laws must rest ultimately upon sound economic principles. Such a remedy is compulsory industrial insurance for workmen which has been in operation throughout continental Europe for twenty-five years

5 Holden v. Hardy, 169 U. S. 366, 387: In this connection consult the brief of Albert P. Thom, Report of Employer's Liability Commission of the United States, pt. 4, pp. 1281-1301. See further Hearings before the Employer's Liability and Workmen's Compensation Commission pursuant to Public Resolution, U. S. No. 45.

and has been enacted recently in Ohio, Massachusetts and Washington. Compulsory industrial insurance laws for workmen,-state or mutual,-which creates a fund through the exercise of the taxing power of the State comes within the constitutional limitation of "due process of law." The states have the right to enact such laws in the exercise of their police powers for the protection of the health, safety and the general welfare of the public. such laws the right of the employé to sue and of the employer to defend with his common-law defenses are appropriated. The employés are given in return compensation without regard to negligence, except willful negligence, and the employer is given in return a discharge from liability to suit, and this, without regard to fault except in cases of malicious fault.

By

From the standpoint of economics, it must be kept in mind that the number of employers who employ a few men and who have a small amount of capital and all of their credit invested in their business is very large. For example, in Ohio, 50 per cent. of the employers employ less than twenty men. Any remedy is insufficient which does not furnish the employés of an employer of small capital and of a few men as adequate and certain compensation as it would the employés of the great employer with many employés. A compensation act based upon compulsory industrial insurance which provides a fund through the exercise of the taxing power of the State gives the employer of a few men as equitable protection and his employés as certain and adequate compensation as a compensation act of the form of the New York Act would give the United States Steel Corporation and its employés.

Whether a law is constitutional or not, depends ultimately upon the fact that the law is supported by the preponderating will of the people of the state whose

legislature enacted the law, and whether the preponderating will of the people of a state continues to support a law or not depends upon the accuracy with which the law corrects the economic inequality which the people desire to have cured.

§ 59a. New York General Liability Law with compensation features."-At the time the New York Workmen's Compensation Law was enacted in 1910, there was in existence a General Liability Law, which contained many compensation features. Though the compensation features of this statute have rarely been invoked, the statute has not been repealed. The compensation provisions of this statute are pointed out in a later chapter on Matters Common to the Various American Compensation Acts.

6 Labor Law, 1909, art. 14, ch. 36; Laws 1910, amended ch. 352.

§ 60. Its nature and construction by the Supreme Court.-The Montana Workmen's Insurance Act was approved March 4th, 1909, and went into effect October 1st, 1910, and its benefits were to commence four months thereafter. This act provided for an insurance fund for the benefit of "all workmen, laborers, and employés employed in and around any coal mines or in and around any coal washeries in which coal is treated, except office employés, superintendents and general managers, in case of accidents occurring in the course of their employment." It provided for a co-operative fund, contributions thereto being made by employers on the basis of the product of their mines, and by employés on the basis of their gross earnings. Fixed sums were to be paid injured persons in case of disability, or to their surviving dependents in case the injury resulted in death. The administration of the law was committed to the auditor of the State, the act being in large measure automatic in its operation. While obligatory upon the employer and his workmen to make the payments prescribed by the law, injured workmen or their dependents might ignore the provisions of the law and sue for damages under either statute or common law.

The constitutionality of the act was finally determined by the Montana Supreme Court in Cunningham v.