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REPORT OF COMMISSION 
 
 APPOINTED BY 
 
 GOVERNOR M. E. HAY 
 
 -TO— 
 
 Investigate the Problems 
 
 -OF- 
 
 INDUSTRIAL ACCIDENTS 
 
 -AND TO- 
 
 DRAFT A BILL ON THE SUBJECT 
 
 _ OF - 
 
 Employes^ Compensation 
 
 - TO BE 
 
 Submitted to the J9I t Session of the '^ ' '^^^ 
 
 Washington Legislatwre vnj^^ni.ii^ 
 
 r> v.; 
 
 .,s^'' 
 
 Paul E. Page, Chairman; F. B. Hubbahd, James Anderson, 
 Peter Henrbtty; J. H. Wallace, E, S. Jones, J. A. Fal- 
 coner, J. P. McGoLDKiCK, Clarence Parker, George Von 
 EscHEN. Harold Preston, Attorney for the Commission. 
 
 B. L. BOARiDMAN, PUBLIC PBINTEB 
 
 OLYMPIA, WASH. 
 
 1910 
 
REPORT OF COMMISSION 
 
 APPOINTED BY 
 
 GOVERNOR M. E. HAY 
 
 TO 
 
 Investigate the Problems 
 
 OF- 
 
 INDUSTRIAL ACCIDENTS 
 
 — AND TO — 
 
 DRAFT A BILL ON THE SUBJECT 
 
 — OP — 
 
 Employes^ Compensation 
 
 ■TO BE 
 
 Submitted to the i9t\ Session of the 
 Washing;ton Legislature 
 
 Paul E. Page, Chairman; F. B. Hubbard, James Anderson, 
 Peter Henretty, J. H. Wallace, E. S. Jones, J. A. Fal- 
 coner. J. P. McGoLDRicK, Clarence Parker, George Von 
 Eschen. Harold Preston, Attorney for the Commission. 
 
 E. L. BOARDMAN, PUBLIC PRINTER 
 
 OLYMPIA, WASH. 
 
 IMO 
 

 DOCUMENTS 
 
 DEFT. 
 
TlEl^ORT. 
 
 Tacoma, Washington, December 30, 1910. 
 To THE Honorable M. E. Hay, Governor of Washington: 
 
 The employers' liability commission appointed by you to investigate 
 the problems of industrial accidents and draft a bill upon the subject 
 for submission to the legislature at its next session, respectfully report 
 as follows: 
 
 The commission consists of the following: Employers, Paul E. Page 
 of Buckley, F. B. Hubbard of Centralia, James Anderson of Seattle, J. 
 A. Falconer of Everett, and J. P. McGoldrick of Spokane; employes, P. 
 Henretty of Cle Elum, E. S. Jones of Ellensburg, Clarence Parker of 
 Tacoma, J. H. Wallace of Seattle, and George Von Eschen of Spokane. 
 
 We organized at the city of Tacoma on the 29th day of September, 
 1910, byelecting Mr. Page chairman, and Mr. Henretty secretary, and 
 appointed Mr. Harold Preston of Seattle our attorney. We have had 
 numerous meetings and gathered such statistics of industrial accidents 
 as were available, but found it impossible to obtain comprehensive sta- 
 tistics of any industry in the state except that of coal mining. It took 
 us little time, however, to reach an agreement with the Illinois commis- 
 sion, that the present system of law in relation to the matter is "unjust, 
 haphazard, inadequate and wasteful, the cause of enormous suffering, 
 of much disrespect for law, and of a badly distributed burden upon 
 society"; and with the New York commission, that "present conditions 
 as to employers' liability are intolerable"; and with Governor Hughes 
 of New York, that "our present methods are wasteful and result in in- 
 justice. * * * As a result the workmen do not receive proper compen- 
 sation, and employers pay large amounts that do not reach them"; 
 and with President Roosevelt, in urging upon Congress the adoption of 
 the compensation system for workmen employed by the government, 
 that "it is a matter of humiliation to the nation that there should not be 
 on our statute books provision to meet and partially to atone for cruel 
 misfortune when it comes upon a man, through no fault of his own, 
 while faithfully serving the public. In no other prominent industrial 
 country in the world could such gross injustice occur; for almost all 
 civilized nations have enacted legislation embodying the complete rec- 
 ognition of the principle which places the entire trade risk for indus- 
 trial accident (excluding of course accidents due to the wilful mis- 
 conduct of the employe) on the industry as represented by the em- 
 ployer, which in this case is the government. * * * The same broad 
 principle which should apply to the government should ultimately be 
 
 (i77149 
 
4 
 
 made applicable to all private employers. Where the nation has the 
 power it should enact laws to this effect. Where the states alone have 
 the power they should enact the laws." 
 
 The principle of sure compensation to the injured workman, regard- 
 less of questions of negligence, has obtained for years in every country 
 of continental Europe. It has there given complete satisfaction and 
 proved beneficial to employer and employe alike, and has removed 
 one of the chief causes of friction and animosity between employer 
 and employe. 
 
 When first enacted in Germany, twenty-five years ago, it was feared 
 that it would prove a handicap to the employer in his competition with 
 the employers of other countries. The remarkable strides made by 
 German industry since that time has proven that the apprehension was 
 unfounded; and the commission are of the opinion that the industries of 
 Washington, in their competition with like industries in other states 
 and countries, will be benefited rather than harmed if that principle 
 shall be adopted into the legislation of Washington. 
 
 The subject is one of present intense interest in many parts of the 
 United States. Commissions like our commission have been consti- 
 tuted in Massachusetts, New York, Illinois, Minnesota and Wisconsin, 
 and some of them are still at work upon the problem. They have been 
 hampered in their work by provisions of their constitutions not con- 
 tained in the constitution of Washington, in which respect we consider 
 the State of Washington to be fortunate, in that the way seems open 
 here to enact into law the true principle which should govern the rela- 
 tions between employers and employes engaged in hazardous occupa- 
 tions. 
 
 We submit herewith a proposed bill which we have prepared, and 
 which has our unanimous approval. Most of the commissions of other 
 states have found it necessary from a legal standpoint to leave the 
 applicability of the act to the option of the workman; that is to say, he 
 is at liberty to take under the act or to reject the act and bring his 
 action at law against his employer; yet they all agree that the only 
 justification for imposing absolute liability upon the employer in all 
 cases, regardless of the question of negligence, is to, on the other 
 hand, take away from the employe the right to sue at law. They have 
 devised plans, the object of which is to leave the option in theory in 
 the hope that it will not obtain in practice. The bill herewith sub- 
 mitted withdraws the matter from the domain of private controversy 
 and from the jurisdiction of the courts, provides funds out of which 
 every workman injured, and the family of every workman killed in 
 the course of industrial employment, receive a measure of compen'^a- 
 tion, regardless of the question who was to blame for the accident, and 
 provides that this shall be the workman's sole remedy, and the contri- 
 bution which the employer makes to the funds his sole financial respon- 
 sibility. 
 
 The problem of extremest difficulty with which we have been con- 
 fronted has been the fixing of the rates of contribution. Most em- 
 
5 
 \ 
 
 plovers in the state today procure what is known as employers' liability 
 policies, for which they pay a certain percentage of their payroll, and 
 which furnishes them the agreement of the insurer to indemnify them 
 against all demands made against them by or on account of employes 
 injured in their establishments. 
 
 It is reasonably well established by statistics that of the sums of 
 money paid by the employer for employers' liability insurance, little, if 
 any, in excess of twenty per cent thereof, reaches the injured employe 
 or his family. In the State of Washington the sum paid last year for 
 such insurance was over six hundred thousand dollars, of which nearly 
 five hundred thousand dollars was absolutely wasted. Insurance men 
 agree that of such insurance sixty per cent, of the premiums is ex- 
 pended in expenses of solicitation, office expenses, expenses of ad- 
 justment and profits to stockholders. In accident insurance it is esti- 
 mated that fifty per cent, of the premiums paid is consumed in -the 
 same way. 
 
 It is estimated that one accident out of eleven is prosecuted in the 
 courts, and that one out of ten prosecuted is successful. The expenses 
 to the state and the several counties of the state, in providing the 
 court machinery for trying out these contests is enormous. In its lim- 
 ited time the commission has not been able to ascertain from the 
 court records the precise size of that item of cost; it is variously esti- 
 mated at from one hundred thousand dollars to two hundred thousand 
 dollars per year. Whatever the amount, it is all waste and furnishes, 
 in the opinion of the commission, ample justification for the provision 
 in the proposed bill, that the state appropriate out of its treasury 
 one hundred and fifty thousand dollars to defray the expenses of the 
 department for the first sixteen months of operation under the act if 
 the act shall be passed by the coming legislature; that is to say, from 
 October first (the date on which it is proposed the act shall become 
 operative between employer and employe) and the time fixed by law 
 for the next session of the legislature. 
 
 If other justification for such an appropriation were needed from a 
 financial standpoint, it is only necessary to consider the financial bur- 
 den from which the counties of the state will be relieved by a law 
 which will provide an ensured living for injured workmen, their widows 
 and children, thereby avoiding the possibility of their becoming public 
 charges or worse. 
 
 The Illinois commission in its investigation discovered that in three 
 and one-half years the county of Cook alone cared for one hundred and 
 forty-seven such families, numbering five hundred and fifty-eight indi^ 
 viduals. In seventy-two of these families the wage-earner had been 
 killed; in seventy-five merely injured. Of the entire one hundred and 
 forty-seven families only forty-three had any wage income whatever. 
 The forty-three families averaged a weekly income of $6.88. The entire 
 group had an average income of fifty cents per week for each person. 
 Of these families seventy-two were native Americans. The Illinois 
 commission "found painfully instructive the stories of how the women 
 
6 
 
 and children in these one hundi'ed and forty-seven families met the 
 load thus thrust upon them." 
 
 On the other side of the account we hear frequently of large verdicts 
 being rendered in favor of the plaintiff in such cases; yet investiga- 
 tion has proven that approximately five hundred dollars is the average 
 compensation received under the existing system for the accidental 
 death of an industrial workman. When substantial recoveries are se- 
 cured, they are secured only at the end of years of litigation. The 
 remedy under present laws is truly uncertain. The doctrine of Magna 
 Charta was that one for an injury to his person should have a sure, 
 speedy and adequate remedy in the courts. In the administration of 
 the common law system the remedy has proven uncertain, inadequate 
 and anything but speedy. Yet it is said that the common law has be- 
 come so engrafted into the institutions of the states of America as to 
 stand in the way of the introduction of the workmen's compensation 
 system under which the workman's remedy will be certain, speedy and 
 reasonably adequate. 
 
 Other commissions have seemed to favor the placing of the liability 
 directly upon the employer; that is to say, they favor fixing a schedule 
 of compensation to injured workmen and their families, and providing 
 that in each case each employer shall pay the stated sum to the in- 
 jured employe, or, in case of his death, to his familiy, and It is ex- 
 pected (in fact it is the case in New York, where an optional statute 
 was this year enacted) that the employers will then write employers' 
 liability insurance to protect them in such cases, and thereby distribute 
 the burden. 
 
 This plan has not met with the favor of your commission for the 
 reason that it still retains the elements of waste and litigation. It 
 seems to us better, for both employer and employe, that all the money 
 that the employers pay out on account of such cases shall, every cent 
 of it, go to the injured workman. 
 
 In adjusting the schedules of contribution we believe that we have 
 erred, if at all, on the side of safety; in other words, that the schedules 
 of premiums fixed in the proposed act will carry the schedule of com- 
 pensation fixed therein, and probably more. If the act shall be 
 adopted, the commission will keep books with every industry and every 
 class of industry, and, after sixteen months of such bookkeeping, will be 
 able to determine precisely whether any industry has contributed more 
 or less than was required for its accidents during that year, and the 
 proposed act provides for the refund of sums paid in excess. So that 
 if the rates named in the bill appear high to any employer or class of 
 employers, they should remember that if proved too high, the excess is 
 only a temporary advancement of money. By means of such book- 
 keeping the commission will also be able to inform the succeeding 
 legislature of the exact cost of the schedule of compensation to each 
 Industry and class of industries. By that means any inequalities dis- 
 covered in the laying of the burden of contribution will be corrected for 
 future application, and that with increasing accuracy as the years of 
 
operation under the act increase; so that, while some employers of the 
 state may feel that the rate of premium fixed in the act is large in 
 their cases, yet it is hoped that the question will be first viewed in its 
 humanitarian aspect and from the standpoint of the public good, and 
 that it will be borne in mind that the rates named in the proposed 
 bill may be changed after sixteen months of operation and demonstra- 
 tion, and that, in the first instance, employers can well afford to pay 
 a rate possibly seeming too large, in view of the fact that any error or 
 inequality will be so soon corrected, since by doing so they may be 
 able to obtain the enactment of the proposed legislation, the effect of 
 which will be, not only to relieve them of the load of litigation and 
 expense which they are now carrying in that connection, and secure 
 to their workmen and the families of their workmen sure provision in 
 cases of accidents, but also to restore between employer and workman 
 a feeling of friendship and co-operation which is certain to be re- 
 flected in the yearly trial balance. 
 
 In closing, the commission wish to gratefully acknowledeg assistance 
 rendered them by numerous citizens, and especially Govnor Teats and 
 Edwin P. Masterson of the Tacoma bar, and George W. Rourke of the 
 Seattle bar. 
 
 The legal report of the attorney to the commission is submitted 
 herewith. 
 
 Respectfully, 
 
 Paul E. Page, 
 
 E. S. Jones, 
 
 J. A. Falconer, 
 
 J. P. McGOLDEICK, 
 
 Clarence Parker, 
 Jas. Anderson, 
 Geo. Von Eschen, 
 
 F. B. Htjbbard, 
 Peter Henretty, 
 J. H. Wallace. 
 
COMPENSATION FOR INJURED WORKMEN EMPLOYED 
 IN THE INDUSTRIES OF THE STATE. • 
 
 An Act creating the Industrial Insurance Department, making an ap- 
 propriation for its administration, providing for the creation and dis- 
 bursement of funds for the compensation and care of workmen in- 
 jured in hazardous employment, providing penalties for the non-ob- 
 servance of regulations for the prevention of such injuries and for 
 violations of its provisions, asserting and exercising the police 
 power in such cases, and, except in certain specified cases, abolish- 
 ing the doctrine of negligence as a ground for recovery of damages 
 against employers, and depriving the courts of jurisdiction of such 
 controversies. 
 
 Be It Enacted by the Legislature of the State of Washington: 
 
 Section 1. Declaratiori of Police Power. 
 
 The common law system governing the remedy of workman against 
 employer for injuries received in hazardous work does not consist with 
 modern industrial conditions. In practice it proves to be economically 
 unwise and unfair. Its administration has produced the result that little 
 of the cost to the employer has reached the workman and that little 
 only at large expense to the public. The remedy of the workman has 
 become uncertain, slow and inadequate. Injuries In such works, 
 formerly occasional, have become frequent and inevitable. The wel- 
 fare of the state depends upon its industries, and even more upon the 
 welfare of its wage-workers. The State of Washington, therefore, exer- 
 cising herein its police and sovereign power, declares that all phases 
 of the premises are withdrawn from private controversy, and sure and 
 certain relief for workmen, injured in extra hazardous work, and their 
 families and dependents is hereby provided regardless of questions of 
 fault and to the exclusion of every other remedy, proceeding or com- 
 pensation, except as otherwise provided in this act; and to that end 
 all civil actions and civil causes of action for such personal injuries 
 and all jurisdiction of the courts of the state over such causes are 
 hereby abolished, except as in this act provided. 
 
 Sec. 2. Enumeration of Extra Hazardous Worlcs. 
 
 There is hazard in all employment, but certain employments have 
 come to be, and to be recognized as being inherently and constantly 
 dangerous. This act is intended to apply to all such inherently hazard- 
 ous works and occupations, and it is the purpose to embrace all of 
 them, which are within the legislative jurisdiction of the state, in the 
 following enumeration, and they are intended to be embraced within the 
 term "extra hazardous" wherever used in this act, to-wit: 
 
 Factories, mills and workshops where machinery is used; printing, 
 electrotyping, photo-engraving and stereotyping plants where machin- 
 ery is used, foundries, blast furnaces, mines, wells, gas works, water 
 works, reduction works, breweries, elevators, wharves, docks, dredges. 
 
9 
 
 smelters, powder works, laundries operated by power, quarries, engin- 
 eering works: logging, lumbering and shipbuilding operations; logging, 
 street and interurban railroads; buildings being constructed, repaired, 
 moved or demolished; telegraph, telephone, electric light or power 
 plants or lines, steam heating or power plants, steamboats, tugs, ferries, 
 and railroads. If there be or arise any extra hazardous occupation or 
 work other than those hereinabove enumerated, it shall come under 
 this act, and its rate of contribution to the accident fund, hereinafter 
 established, shall be, until fixed by legislation, determined by the de- 
 partment hereinafter created, upon the basis of the relation which the 
 risk involved bears to the risks classified in section 4. 
 
 Sec. 3. Definitions. 
 
 In the sense of this act words employed mean as here stated, to-wit: 
 
 Factories mean undertakings in w^hich the business of working 
 at commodities is carried on with power-driven machinery, either in 
 manufacture, repair or change, and shall include the premises, yard 
 and plant of the concern. 
 
 Workshop means any plant, yard, premises, room or place wherein 
 power-driven machinery is employed and manual labor is exercised 
 by way of trade for gain or otherwise in or incidental to the process of 
 making, altering, repairing, printing, or ornamenting, furnishing or 
 adapting for sale or otherwise any article or part of article, machine 
 or thing, over which premises, room or place the employer of the per- 
 sons working therein has the right of access or control. 
 
 Mill means any plant, premises, room or place where machinf-ry is 
 used, any process of machinery, changing, alterating or repairing any 
 article or commodity for sale or otherwise, together with the yards 
 and premises which are a part of the plant, including elevators, ware- 
 houses and bunkers. 
 
 Mine means any mine where coal, clay, ore, mineral, gypsum or 
 rock is dug or mined under ground. 
 
 Quarry means an open cut from which coal is mined, or clay, ore, 
 mineral, gypsum, sand, gravel or rock is cut or taken for manufacturing, 
 building or construction purposes. 
 
 Engineering woi'k means any work of construction, improvement or 
 alteration or repair of buildings, structures, streets, highw^ays, sewers, 
 street railways, railroads, logging roads, interurban railroads, harbor, 
 dock, canal; electric, steam or water power plants; telegraph and tele- 
 phone lines; electric light or power lines, and includes any other 
 works for the construction, alteration or repair of which machinery 
 driven by mechanical power is used. 
 
 Except when otherwise expressly stated. Employer means any per- 
 son, body of persons, corporate or otherwise, and the legal person rep- 
 resentatives of a deceased employer, all while engaged in this state in 
 any extra hazardous work. 
 
 Workman means every person in this state who, after September 
 30, 1911, is engaged in the emploj^ment of an employer, whether by 
 
10 
 
 way of manual labor or otherwise, and whether upon the laremises or at 
 the plant or he being in the course of his employment away from the 
 plant of his employer: Provided, however, That if the enjury to a work- 
 man occurring away from the plant of his employer is due to the neg- 
 ligence or wrong of another not in the same employ, the injured work- 
 man, or, if death result from the injury, his widow, children or de- 
 pendents, as the case may be, shall elect whether to take under this act 
 or seek a remedy against such other, such election to be in advance of 
 any suit under this section; and if he take under this act, the cause of 
 action against such other shall be assigned to the state for the benefit 
 of the accident fund; if the other choice is made, the accident, fund 
 shall contribute only the deficiency, if any, between the amount of 
 recovery against such third person actually collected, and the compensa- 
 tion provided or estimated by this act for such case. Any such cause 
 of action assigned to the state may be prosecuted, or compromised by 
 the department, in its discretion. Any compromise by the workman of 
 any such suit, which would leave a deficiency to be made good out of 
 the accident fund, may be made only with the written approval of 
 the department. 
 
 Any individual employe or any member or officer of any corporate 
 employer who shall be carried upon the payroll at a salary or wage 
 not less than the average salary or wage named in such payroll and 
 who shall be injured, shall be entitled to the benefits of this act as 
 and under the same circumstances as and subject to the same obliga- 
 tions as a workman. 
 
 Dependent means any of the following named relatives of a work- 
 man whose death results from an injury and who leaves surviving no 
 widow, widower or child under the age of sixteen years, viz.: invalid 
 child under the age of sixteen years, daughter between sixteen and 
 eighteen years of age, father, mother, grandfather, grandmother, step- 
 father, step-mother, grandson, granddaughter, step-son, step-daughter, 
 brother, sister, half-sister, half-brother, niece, nephew, who, at the 
 time of the accident, are dependent, in whole or in part, for their sup- 
 port upon the earnings of the workman. Except where otherwise pro- 
 vided by treaty, aliens, other than father or mother, not residing within 
 the United States at the time of the accident are not included. 
 
 Beneficiary means a husband, wife, child or dependent of a woi'kman 
 in whom shall vest a right to receive payment under this act. 
 
 Invalid means one who is physically or mentally incapacitated from 
 earning. 
 
 The word "child," as used in this act, includes a posthumous child, 
 a child legally adopted prior to the injury, and an illegitimate child 
 legitimated prior to the injury. 
 
 The words injury or injured, as used in this act, refer only to an 
 injury resulting from some fortuitous event, as distinguished from the 
 contraction of disease. 
 
11 
 
 Sec. 4. Schedules of Contribution. 
 
 Insomuch as industry should bear the greater proportion of the bur- 
 den of the cost of its accidents, each employer shall, prior to January 
 15th of each year, pay into the state treasury, in accordance with the 
 following schedule, a sum equal to a percentage of his total 'payroll 
 for that year, to-wit., (the same being deemed the most accurate 
 method of equitable distribution of burden in proportion to relative 
 hazard) : 
 
 CONSTRUCTION WORK. 
 
 Tunnels ; bridgos ; trestles ; sub-aqueous work ; canal or dock excavation ; 
 
 fire escapes ; sewers ; house moving ; house wrecking 065 
 
 Iron, or steel frame structures or parts of structures 080 
 
 Electric light or power plants or systems ; telegraph or telephone systems ; 
 
 pile driving ; steam railroads 050 
 
 Steeples, towers or grain elevators, not metal framed ; dry docks without 
 excavation ; jetties ; breakwaters ; chimneys ; marine railways ; water- 
 works or systems ; electric railways with rockwork or blasting ; blast- 
 ing ; erecting fire-proof doors or shutters 050 
 
 Steam heating plants; tanks, water towers or windmills, not metal frames .040 
 
 Shaft sinking . 060 
 
 Concrete buildings ; freight or passenger elevators ; fire-proofing of build- 
 ings ; galvanized iron or tin work ; gas works or systems ; marble, 
 stone or brick work ; road making ; roof work ; safe moving ; slate 
 
 work ; outside plumbing work ; metal smokestacks or chimneys 050 
 
 Excavations not otherwise specified ; blast furnaces 040 
 
 Street or other grading ; cable or electric street railways without blasting ; 
 
 advertising signs ; ornamental metal work in buildings 035 
 
 Ship or boat building or wrecking with scafColds ; floating docks 045 
 
 Carpenter work not otherwise specified 035 
 
 Installation of steam boilers or engines ; placing wires in conduits ; in- 
 stalling dynamos ; putting up belts for machinery ; marble, stone or tile 
 setting, inside work ; mantle setting : metal ceiling work ; mill or ship 
 wrighting ; painting of buildings or structures ; installation of auto- 
 matic sprinklers ; ship or boat rigging ; concrete laying in floors, foun- 
 dations or street paving ; asphalt laying ; covering steam pipes or boil- 
 ers ; installation of machinery not otherwise specified 030 
 
 Drilling wells ; installing electrical apparatus or fire alarm systems in 
 buildings ; house heating or ventilating systems ; glass setting ; building 
 hot houses ; lathing ; paper hanging ; plastering ; inside plumbing ; 
 wooden stair building 020 
 
 OPERATION (INCLUDING REPAIR WORK) OF 
 
 (All combinations of material take the higher rate when not otherwise provided). 
 Logging railroads ; railroads ; dredges ; interurban electric railroads using 
 
 third rail system ; dry or floating docks 050 
 
 Electric light or power companies ; interurban electric railroads not using 
 
 third rail system ; quarries 040 
 
 Street railway companies, all employes ; telegraph or telephone companies ; 
 
 stone crushing ; blast furnaces ; smelters ; coal mines ; gas works ; 
 
 steamboats ; tugs ; ferries 030 
 
 Mines other than coal ; steam heating or power companies 025 
 
 Grain elevators ; laundries ; waterworks ; paper or pulp mills ; garbage 
 
 works 020 
 
12 
 
 FACTOIUES USING POWEK-DIUVEN MACHINERY. 
 
 Stamping tin or metal 045 
 
 Bridge worlv : railroad car making: cooporago ; logging with or without ma- 
 chinery ; sawmills ; shingle mills ; staves ; veneer ; box ; lath ; packing 
 cases ; sash, door or blinds ; barrel ; keg ; pail ; basket ; tub ; wooden 
 ware *or wood fibre ware ; rolling mills ; making steam shovels or 
 dredges ; tanks ; water towers ; asphalt ; building material not otherwise 
 specified ; fertilizer ; cement ; stone with or without machinery ; kindling 
 wood ; masts and spars with or without machinery ; canneries, metal 
 stamping extra 025 
 
 Excelsior ; iron, steel, copper, zinc, brass or lead articles or wares not oth- 
 erwise specified ; working in wood not otherwise specified ; hardware ; 
 
 tile : brick ; terra cotta : fire clay ; pottery : earthi>n ware ; porcelain ware ; 
 
 peat fuel 020 
 
 Brew(M-ies ; bottling works : Ijoiler works ; foundries ; machine shops not 
 
 otherwise specified 020 
 
 Cordage: working in food stuffs, including oils, fruits and vegetables; work- 
 ing in wool, cloth, leather, paper, broom, brush, rubber or textiles not 
 otherwise specified 015 
 
 Making jewelry, soap, tallow, lard, grease, condensed milk 015 
 
 Creameries; printing; electrotyping ; photo-engi-aving ; engraving; litho- 
 graphing 015 
 
 MISCELLANEOUS WORK. 
 
 Stevedoring : longshoring 030 
 
 Operating stockyards, with or without railroad entry; packing houses 025 
 
 Wharf operation ; artificial ice, refrigerating or cold-storage plants ; tan- 
 neries ; electricians not otherwise specified 020 
 
 Theater stage employes 015 
 
 Pire works manufacturing 050 
 
 Powder works 100 
 
 The application of this act as between employers and workmen shall 
 date from and including the first day of October, 1911. The payment 
 for 1911 shall be made prior to the day last named, and shall be pre- 
 liminarily collected upon the payroll of the last preceding three months 
 of operation. At the end of each year an adjustment of accounts shall 
 be made upon the basis of the actual payroll. Any shortage shall be 
 made good on or before February first following, and any over-payment 
 shall be refunded out of the accident fund. Every employer who shall 
 enter into business at any intermediate day shall make his payment 
 for the initial year or portion thereof before commencing operation; 
 its amount shall be calculated upon his estimated payroll, and adjust- 
 ment shall be made on or before February first of the following year 
 in the manner above provided. It shall be discretionary with the de- 
 partment to permit any annual payment to be made in quarterly in- 
 stallments. 
 
 The fund thereby created shall be termed "Accident Fund," which 
 shall be devoted exclusively to the purpose specified for it in this act. 
 
 In that the intent is that the funds created under this section shall 
 ultimately become neither more nor less than self-supporting, exclusive 
 of the expense of administration, the rates in this section named are 
 subject to future adjustment by the legislature, and the classifications 
 to re-arrangement following any relative increase or decrease of hazard 
 shown bj'^ experience. 
 
13 
 
 It shall be unlawful for the employer to deduct or obtain any part 
 of the premiums required by this section to be by him paid from the 
 wages or earnings of his workmen or any of them, and the making or 
 attempt to make any such deduction shall be a gross misdemeanor. 
 If, after this act shall have come into operation, it is shown by exper- 
 ience under the act that, because of poor or careless management, any 
 establishment or w-ork is unduly dangerous in comparison with other 
 like establishments or works, the department may advance it in classi- 
 fication of risks and premium rates in proportion to the undue hazard. 
 In accordance with the same principle, any such increase in classifica- 
 tion or premium rate shall be subject to restoration to the schedule 
 rate. Any such change in classification of risk or of premium rates, 
 or any change caused by change in the class of work, occurring during 
 the year shall, at the time of the annual adjustment, be adjusted by 
 the department in proportion to its duration in accordance with the 
 schedule of this section. If, at the end of any year, it shall be seen 
 that a particular class of industry has contributed more than proved 
 necessary to take care of its accidents, the excess of contribution of 
 that class of industry shall be forthwith refunded to the contributors 
 in proportion to the excess contribution of each. If, at the end of any 
 year, it shall be seen that the contribution to the accident fund by any 
 class of industry shall be less than the drain upon the fund on ac- 
 count of that class, the deficiency shall be made good to the fund on 
 the first day of February of the following year by the employers of that 
 class in proportion to their respective contribution for the past year. 
 
 If a single establishment or work comprises several occupations 
 listed in this section in different risk classes, the premium shall be 
 computed according to the payroll of each occupation if clearly sep- 
 arable; otherwise an average rate of premium shall be charged for the 
 entire establishment, taking into consideration the number of employes 
 and the relative hazards. In computing the pajToll the entire compen- 
 sation received by every workman shall be included, whether it be in 
 the form of salary, wage, piece work, overtime, or any allowance in the 
 way of profit sharing, premium or otherwise, and w^hether payable in 
 money, board, or otherwise. 
 
 Sec. 5. Schedule of Awards. 
 
 Each workman who shall be injured, whether upon the premises or 
 at the plant or, he being in the course of his employment, away from 
 the plant of his employer, or his family or dependents in case of death 
 of the workman, shall receive out of the accident fund compensation in 
 accordance with the following schedule, and, except as in this act oth- 
 erwise provided, such payments shall be in lieu of any and all rights 
 of action whatsoever against any person whomsoever. 
 
 COMPENSATION SCHEDULE, 
 (a) Where death results from the injury the expenses of burial 
 shall be paid in all cases, not to exceed $75.00 in any case, and 
 
 (1) If the workman leaves a widow or invalid widower, a monthly 
 
14 
 
 payment of $20.00 shall be made throughout the life of the surviving 
 spouse, to cease at the end of the month in which remarriage shall 
 occur; and the surviving spouse shall also receive $5.00 per month for 
 each child of the deceased under the age of sixteen years at the time 
 of the occurrence of the injury until such minor child shall reach the 
 age of sixteen years, but the total monthly payment under this para- 
 graph (1) of subdivision (a) shall not exceed $35.00. Upon remarriage 
 of a widow she shall receive, once and for all, a lump sum equal to 
 twelve times her monthly allowance, viz.: the sum of $240.00, but the 
 monthly payment for the child or children shall continue as before. 
 
 (2) If the workman leaves no wife or husband, but child or children 
 under the age of sixteen years, a monthly payment of $10.00 shall be 
 made to each such child until such child shall reach the age of sixteen 
 years, but the total monthly payment shall not exceed $35.00, and any 
 deficit shall be deducted proportionately among the beneficiaries. 
 
 (3) If the workman leaves no widow, widower or child under the 
 age of sixteen years, but leaves a dependent or dependents, a monthly 
 payment shall be made to each dependent equal to fifty per cent, of the 
 average monthly support actually received by such dependent from the 
 workman during the twelve months next preceding the occurrence of 
 the injury, but the total payment to all dependents in any case shall 
 not exceed $20.00 per month. If any dependent is under the age of 
 sixteen years at the time of the occurrence of the injury, the payment 
 to such dependent shall cease when such dependent shall reach the 
 age of sixteen years. The payment to any dependent shall cease if and 
 when, under the same circumstances, the necessity creating the de- 
 pendency would have ceased if the injury had not happened. 
 
 If the workman is under the age of twenty-one years and unmarried 
 at the time of his death, the parents or parent of the workman shall 
 receive $20.00 per month for each month after his death until the 
 time at which he would have arrived at the age of twenty-one years. 
 
 (4) In the event a surviving spouse receiving monthly payments 
 shall die, leaving a child or children under the age of sixteen years, the 
 sum he or she shall be receiving on account of such child or children 
 shall be thereafter, until such child shall arrive at the age of sixteen 
 years, paid to the child increased one hundred per cent., but the total to 
 all children shall not exceed the sum of thirtj-five dollars per month. 
 
 (b) Permanent total disability means the loss of both legs or both 
 arms, or one leg and one arm, total loss of eyesight, paralysis or other 
 condition permanently incapacitating the workman from performing 
 any work at any gainful occupation. 
 
 When permanent total disability results from the injury the work- 
 man shall receive monthly during the period of such disability: 
 
 (1) If unmarried at the time of the injury, the sum of $20.00. 
 
 (2) If the workman have a wife or invalid husband, but no child 
 under the age of sixteen years, the sum of $25.00. If the husband is 
 not an invalid, the monthly payment of $25.00 shall be reduced to $15.00. 
 
 (3) If the workman have a wife or husband and a child or children 
 
15 
 
 undec the age of sixteen years, or, being a widow or widower, have any 
 such cliild or children, the monthly payment provided in the preceding 
 paragraph shall be increased by five dollars for each such child until 
 such child arrive at the age of sixteen years, but the total monthly 
 payment shall not exceed thirty-five dollars. 
 
 (c) If the injured workman die during the period of permanent total 
 disability, whatever the cause of death, leaving a widow, invalid wid- 
 ovv^er or child under the age of sixteen years, the surviving widow or 
 invalid widower shall receive twenty dollars per month until death or 
 remarriage, to be increased five dollars per month for each child under 
 the age of sixteen years until such child shall arrive at the age of six- 
 teen years; but if such child is or shall be without father or mother, 
 such child shall receive ten dollars per month until arriving at the age 
 of sixteen years. The total combined monthly payment under this 
 pai'agraph shall in no case exceed thirty-five dollars. Upon remarriage 
 the payments on account of a child or children shall continue as before 
 to the child or children. 
 
 (d) When the total disability is only temporary, the schedule of 
 payment contained in paragraphs (1), (2) and (3) of the foregoing sub- 
 division (b) shall apply so long as the total disability shall continue, 
 increased 50 per cent, for the first six months of such continuance 
 after the first three weeks, but in no case shall the increase operate 
 to make the monthly payment exceed sixty per cent, of the monthly 
 wage (the daily wage multiplied by twenty-six) the workman was re- 
 ceiving at the time of his injury. As soon as recovery is so complete 
 that the present earning power of the workman, at any kind of work, 
 is restored to that existing at the time of the occurrence of the injury 
 the payments shall cease. If and so long as the present earning power 
 is only partially restored the payments shall continue in the proportion 
 which the new earning power shall bear to the old. No compensation 
 shall be payable out of the accident fund unless the loss of earning 
 power shall exceed five per cent. 
 
 (e) For every case of injury resulting in death or permanent total 
 disability it shall be the duty of the department to forthwith notify the 
 state treasurer, and he shall set apart out of the accident fund a sum 
 of money for the case, to, be known as the estimated lump value of the 
 monthly payments provided for it, to be calculated upon the theory that 
 a monthly payment of twenty dollars, to a person thirty years of age, is 
 equal to a lump sum payment, according to the expectancy of life as 
 fixed by the American Mortality Table, of four thousand dollars, but 
 the total in no case to exceed the sum of four thousand dollars. The 
 state treasurer shall invest said sum at interest in the class of se- 
 curities provided by law for the investment of the permanent school 
 fund, and out of the same and its earnings shall be paid the monthly 
 installments and any lump sum payment then or thereafter arranged 
 for the case. Any deficiency shall be made good out of, and any bal- 
 ance or overplus shall revert to the accident fund. The state treasurer 
 shall keep accurate accounts of all such segregations of the accident 
 
16 
 
 fund, and may borrow from the main fund to meet monthly payments 
 ]jending- conversion into cash of any security, and in such case shall 
 repay such temporary loan out of the cash realized from the security. 
 
 (f) Permanent partial disability means the loss of either one foot, 
 one leg, one hand, one arm, one eye, one or more fingers, one or more 
 toes, any dislocation where ligaments are severed, or any other partial 
 Injury known in surgery to be permanent. For any permanent partial 
 disability resulting from an injury the workman shall receive compen- 
 sation in a lump sum in an amount equal to the extent of the injury, 
 to be decided in the first instance by the department, but not in any 
 case to exceed the sum of $1,500.00. The loss of one major ai'm at oi* 
 above the elbow shall be deemed the maximum permanent partial dis- 
 ability. Compensation for any other permanent partial disability shall 
 be in the proportion which the extent of such disability shall bear to 
 the said maximum. If the injured workman be under the age of 
 twenty-one years and unmarried, the parents or parent shall also re- 
 ceive a lump sum payment equal to ten per cent, of the amount 
 awarded the minor workman. 
 
 (g) All payments under this section shall be over and above the 
 first aid payments provided in section 10 of this act, but the computa- 
 tion of the monthly payments shall commence at the end of the period 
 of three weeks covered by section 10. 
 
 (h) Should a further accident occur to a workman already receiv- 
 ing a monthly payment under this section for a temporary disability, or 
 who has been previously the recipient of a lump sum payment under 
 this act, his future compensation shall be adjusted according to the 
 other provisions of this section and with regard to the combined effect 
 of his injuries, and his past receipt of money under this act. 
 
 (i) If aggravation, diminution, or termination of disability takes 
 place or be discovered after the rate of compensation shall have been 
 established or compensation terminated in any case the department 
 may, upon the application of the beneficiary or upon its own motion, 
 re-adjust for future application the rate of compensation in accord- 
 ance with the rules in this section provided for the same, or in a 
 proper case terminate the payments. 
 
 (j) A husband or wife divorced or living in a state of abandonment 
 of an injured workman at the time of the injury or subsequently, 
 shall not be a beneficiary under this act. 
 
 (k) If a beneficiary shall reside or remove out of the state the de- 
 partment may, in its discretion, convert any monthly payments pro- 
 vided for such case into a lump sum payment (not in any case to ex- 
 ceed $4,000) upon the theory, according to the expectancy of life as 
 fixed by the American Mortality Table, that a monthly payment of 
 $20.00 to a person thirty years of age is worth $4,000.00, or, with the 
 consent of the beneficiary, for a smaller sum. 
 
 (1) Any court review under this section shall be initiated in the 
 county where the workman resides or resided at the time of the in- 
 jury, or in which the injury occurred. 
 
17 
 
 Sec. 6. Intentional Injury — f^tatiis of Minors. 
 
 If injury or death results to a workman from the deliberate inten- 
 tion of the workman himself to produce such injury or death, neither 
 the workman nor the widow, widower, child or dependent of the work- 
 man shall receive any payment whatsoever out of the accident fund. 
 If injury or death results to a workman from the deliberate intention 
 of his employer to produce such injury or death, the workman, the 
 widow, widower, child or dependent of the workman shall have the 
 privilege to take under this act and also have cause of action against 
 the employer, as if this act had not been enacted, for any excess of 
 damage over the amount received or receivable under this act. 
 
 A minor working at an age legally permitted under the laws of 
 this state shall be demed sui juris for the purpose of this act, and no 
 other person shall have any cause of action or right to compensation 
 for an injury to such minor workman except as expressly provided in 
 this act, but in the event of a lump sum payment becoming due under 
 this act to such minor workman, the management of the sum shall be 
 within the probate jurisdiction of the courts the same as other 
 property of minors. 
 
 Sec. 7. Conversion Into Lump Sum Payment. 
 
 In case of death or permanent total disability the monthly pay- 
 ment provided may be converted, in whole or in part, into a lump sum 
 payment (not in any case to exceed $4,000), on the theory, according 
 to the expectancy of life as fixed by the American Mortality Table, 
 that a monthly payment of $20.00 to a person thirty years of age is 
 worth the sum of $4,000, in which event the monthly payments shall 
 cease, in whole or in part accordingly or proportionately. Such con- 
 \ersion may only be made after the happening of the injury and upon 
 the written application of the beneficiary (in case of minor children, 
 the application may be by either parent) to the department, and shall 
 rest in the discretion of the department. Within the rule aforesaid 
 the amount and value of the lump sum payment may be agreed upon 
 between the department and the beneficiary. 
 
 Sec. 8. Defaulting Employers. 
 
 If any employer shall default in any payment to the accident fund 
 hereinbefore in this act required, the sum due shall be collected by 
 action at law in the name of the state as plaintiff, and such right of 
 action shall be in addition to any other right of action or remedy. In 
 respect to any injury happening to any of his workmen during the 
 period of any default in the payment of any premium under section 4, 
 the defaulting employer shall not, if such default be after demand 
 for payment, be entitled to the benefits of this act, but shall be liable 
 to suit by the injured workman (or the husband, wife, child or de- 
 pendent of such workman in case death results from the accident), 
 as he would have been prior to the passage of this act. 
 
 In case the recovery actually collected in such suit shall equal or 
 exceed the compensation to which the plaintiff therein would be en- 
 
18 
 
 titled under this act, the plaintiff shall not be paid anything out of 
 the accident fund; if the said amount shall be less than such compen- 
 sation under this act, the accident fund shall contribute the amount 
 of the deficiency. The person so entitled under the provisions of this 
 section to sue shall have the choice (to be exercised before suit) of 
 proceeding by suit or taking under this act. If such person shall 
 take under this act, the cause of action against the employer shall be 
 assigned to the state for the benefit of the accident fund. In any suit 
 brought upon such cause of action the defenses of fellow servant and 
 assumption of risk shall be inadmissible, and the doctrine of compar- 
 ative negligence shall obtain. Any such cause of action assigned to 
 the state may be prosecuted or compromised by the department in its 
 discretion. Any compromise by the workman of any such suit, which 
 would leave a deficiency to be made good out of the accident fund, 
 may be made only with the written approval of the department. 
 
 Sec. 9. Employers' ResponsiMlity for Safeguards. 
 
 If any workman should be injured because of the absence of any 
 safeguard or protection required to be provided or maintained by, or 
 pursuant to, any statute or ordinance, or any departmental regulation 
 under any statute, or be, at the time of the injury, of less than the 
 minimum age prescribed by law for the employment of a minor in 
 the occupation in which he shall be engaged when injured, the em- 
 ployer shall, within ten days after demand therefor by the depart- 
 ment, pay into the accident fund, in addition to the sums required by 
 section 4 to be paid: 
 
 (a) In case the consequent payment to the workman out of the 
 accident fund be a lump sum, a sum equal to 50 per cent, of that 
 amount. 
 
 (b) In case the consequent payment to the workman be payable in 
 monthly payments, a sum equal to 50 per cent, of the lump value of 
 such monthly payment, estimated in accordance with the rule stated 
 in section 7. 
 
 The foregoing provisions of this act shall not apply to the em- 
 ployer if the absence of such guard or protection be due to the re- 
 moval thereof by the injured workman himself or with his knowledge 
 by any of his fellow workmen, unless such removal be by order or 
 direction of the employer or the superintendent or foreman of the 
 employer, or any one placed by the employer in control or direction 
 of such workman. If the removal of such guard or protection be by 
 the workman himself or with his consent by any of his fellow work- 
 men, unless done by order or direction of the employer or the super- 
 intendent or foreman of the employer, or any one placed by the em- 
 ployer in control or direction of such workman, the schedule of com- 
 pensation provided in section 5 shall be reduced 10 per cent, for the 
 individual case of such workman. 
 
 Sec. 10. Creation of First Aid Fund. 
 
 A fund is hereby created in the state treasury to be known as the 
 First Aid Fund. Into it shall be paid by each employer, on or before 
 
19 
 
 the fifteenth day of November, 1911, and each month thereafter, the 
 sum of four cents for each day's work or fraction thereof done by each 
 workman for him during the preceding calendar month or part there- 
 of. Two cents of such four cents shall be deducted by the employer 
 from the pay of the workman. 
 
 Sec. 11. Disbursements of First Aid Fund. 
 
 Upon the occurrence of any injury to a workman, he shall receive 
 from the First Aid Fund proper and necessary medical, surgical and 
 hospital services and compensation for the period of temporary or 
 other disability in the sum of five dollars per week, for not to exceed 
 three weeks, payable at the end of each week. It shall be the duty of 
 the employer to see to it that immediate medical and surgical services 
 are rendered, and transportation to hospital provided, and all charges 
 therefor shall be audited and paid and be payable only by the depart- 
 ment out of the First Aid Fund. 
 
 Sec. 12. Exemption of Awards. 
 
 No money paid or payable under this act out of the accident or 
 First Aid Funds shall, prior to issuance and delivery of warrant 
 therefor, be capable of being assigned, charged, nor even be taken in 
 execution or attached or garnisheed, nor shall the same pass to any 
 person by operation of law. Any such assignment or charge shall be 
 void. 
 
 Sec. 13. Nonicaiver of Act by Contract. 
 
 No employer or workman shall exempt himself from the burdens or 
 waive the benefits of this act by any contract, agreement, rule or reg- 
 ulation, and any such contract, agreement, rule or regulation shall be 
 ■pro tanto void. 
 
 Sec. 14. Filing Claim for Compensation. 
 
 (a) Where a workman is entitled to compensation under this act 
 he shall file with the department, his application for such, together 
 with the certificate of the physician who attended him, and it shall be 
 the duty of the physician to inform the injured workman of his rights 
 under this act and to lend him all necessary assistance in making his 
 application for compensation and such proof of other matters as re- 
 quired by the rules of the department without charge to the workman. 
 
 (b) Where death results from injury the parties entitled to com- 
 pensation under this act, or some one in their behalf, shall make ap- 
 plication for the same to the department, which application must be 
 accompanied with proof of death and proof of relationship showing 
 the parties to be entitled to compensation under this act, certificates 
 of attending physicians, if any, and such other proof as required by the 
 rules of the department. 
 
 (c) If change of circumstances warrant an increase or rearrange- 
 ment of compensation, like application shall be made therefor. No 
 increase or rearrangment shall be operative for any period prior to 
 application therefor. 
 
20 
 
 (d) No application sliall be valid oi' claim thereunder enforcible un- 
 less filed within one year after the day upon which the injury occurred 
 or the right thereto accrued. 
 
 Sec. 15. Medical Examination. 
 
 Any workman entitled to receive compensation under this act is re- 
 quired, if requested by the department, to submit himself for medical 
 examination at a time and from time to time at a place reasonably 
 convenient for the workman and as may be provided by the rules of 
 the department. If the workman refuses to submit to any such exam- 
 ination, or obstructs the same, his rights to monthly payments shall 
 be suspended until such examination has taken place, and no com- 
 pensation shall be payable during or for account of such period. 
 
 Sec. 16. Notice of Accident. 
 
 Whenever any accident occurs to any workman it shall be the 
 duty of the employer to at once report such accident and the injury 
 resulting therefrom to the department, and also to any legal represen- 
 tative of the department. Such report shall state: 
 
 1. The time, cause and nature of the accident and injuries, and the 
 probable duration of the injury resulting therefrom. 
 
 2. Whether the accident arose out of or in the course of the in- 
 jured person's employment. 
 
 3. Any other matters the rules and regulations of the department 
 may prescribe. 
 
 Sec. 17. Inspection of Employer's Books. 
 
 The books, records and payrolls of the employer pertinent to the 
 administration of this act shall always be open to inspection by the 
 department or its traveling auditor, agent or assistant, for the purpose 
 of ascertaining the correctness of the payroll, the men employ'ed, and 
 such other information as may be necessary for the department and its 
 management under this act. Refusal on the part of the employer to 
 submit said books, records and payrolls for such inspection to any 
 member of the commission, or any assistant presenting written author- 
 ity from the commission, shall subject the offending employer to a 
 penalty of one hundred dollars for each offense, to be collected by civil 
 action in the name of the state and paid into the accident fund, and 
 the individual who shall personally give such refusal shall be guilty of 
 a misdemeanor. 
 
 Sec 18. Penalty for Misrepresentation as to Payroll. 
 
 Any employer who shall misrepresent to the department the amount 
 of payroll upon which the premium under this act is based shall be 
 liable to the state in ten times the amount of the difference in premium 
 paid and the amount the employer should have paid. Any employer 
 who shall misrepresent to the department the amount of contribution 
 due from him to or collected by him for the First Aid Fund shall be 
 liable to the state in ten times the amount attempted to be concealed 
 or withheld by such misrepresentation. The liability to the state un- 
 
21 
 
 der this section sliall be enforced in a civil action in the name of the 
 state. All -snms collected under this section shall be paid into the 
 Accident or First Aid Fund in proportion to the interest of each or 
 either therein. 
 
 Sec. 19. Emergency Division of Expense of Administration. 
 
 The burden of the cost of salaries, traveling and office expenses in- 
 cident to the administration of this act shall (except as otherwise 
 provided for) be distributed to the funds as follows: to the accident 
 fund, 15 per cent, thereof; to the First Aid Fund, 85 per cent, thereof. 
 
 Sec. 20. Puhlic and Contract Wo7-k. 
 
 Whenever the state, county or municipal corporation shall en- 
 gage in any extra hazardous work in which the workmen are em- 
 ployed for wages, this act shall be applicable thereto. The employer's 
 payments into the accident and first aid funds shall be made from 
 the treasury of the state, county or municipality. If said work is 
 being done by contract, the payroll of the contractor and sub-contractor 
 shall be the basis of computation, and in the case of contract work 
 consuming less than one year in performance the required payment 
 into the accident fund shall be based upon the total payroll. The con- 
 tractor and any sub-contractor shall be subject to the provisions of 
 the act, and the state for its general fund; the county or municipal 
 corporation shall be entitled to collect from the contractor the full 
 amount payable to the First Aid and Accident funds, and the con- 
 tractor in turn shall be entitled to collect from the sub-contractor his 
 proportionate amount of the payment. The provisions of this section 
 shall apply to all extra hazardous work done by contract, except that 
 in private work the contractor shall be responsible, primarily and di- 
 rectly, to the accident fund for the proper percentage of the total pay- 
 roll of the work and to the first aid fund for the amounts due it, and 
 the owner of the property affected by the contract shall be surety for 
 such payments. Whenever and so long as, by state law, city charter 
 or municipal ordinance, provision is made for municipal employes in- 
 jured in the course of employment, such employes shall not be entitled 
 to the benefits of -this act and shall not be included in the payroll of 
 the municipality under this act. 
 
 Sec. 21. Interstate Commerce. 
 
 The provisions of this act shall apply to employers and workmen 
 engaged in intrastate and also interstate or foreign commerce, for 
 whom a rule of liability or method of compensation has been or may 
 be established by the Congress of the United States, only to the ex- 
 tent that their mutual connection with intrastate work may and shall 
 be clearly separable and distinguishable from interstate or foreign 
 commerce, except that anj^ such employer and any of his workmen 
 working only in this state may, with the approval of the department, 
 and so far as not forbidden by any act of Congress, voluntarily accept 
 the provisions of this act by filing written acceptances with the de- 
 partment. Such acceptances, when filed with and approved by the de- 
 
22 
 
 partment, shall subject the acceptors irrevocably to the provisions of 
 this act to all intents and purposes as if they had been originally in- 
 cluded in its terms. Payment of premium shall be on the basis of the 
 payroll of the workmen who accept as aforesaid. 
 
 Sec. 22. Elective Adoption of Act. 
 
 Any employer and his employes engaged in works not extra haz- 
 ardous may, by their joint election, filed with the department, accept 
 the provisions of this act, and such acceptance, when approved by the 
 department, shall subject them irrevocably to the provisions of this 
 act to all intents and purposes as if they had been originally included 
 in its terms. Ninety per cent, of the minimum rate specified in section 
 4 shall be applicable to such case until otherwise provided by law. 
 
 Sec. 23. Court Review. 
 
 Any employer, workman, beneficiary or person feeling aggrieved at 
 any decision of the department affecting his interests under this act 
 may have the same reviewed by a proceeding for that purpose, in the 
 nature of an appeal, initiated in the Superior Court of the county of 
 his residence (except as otherwise provided in subdivision (1) of sec- 
 tion numbered 5) insofar as such decision rests upon questions of fact, 
 or of the proper application of the provisions of this act, it being the 
 intent that matters resting in the discretion of the department shall 
 not be subject to review. The proceedings in every such appeal shall 
 be informal and summary, but full opportunity to be heard shall be had 
 before judgment pronounced. No such appeal shall be entertained 
 unless notice of appeal shall have been served by mail or personally 
 upon some member of the commission within twenty days following 
 the rendition of tlae decision appealed from and communication thereof 
 to the person affected thereby. No bond shall be required, except 
 that an appeal by the employer from a decision of the department uw 
 der section 9 shall be ineffectual unless, within five days following the 
 service of notice thereof, a bond, with surety satisfactory to the court, 
 shall be filed, conditioned to perform the judgment of the court. Ex- 
 cept in the case last named an appeal shall not be a stay. The calling 
 of a jur'y shall rest in the discretion of the court except that in cases 
 arising under sections 9, 17 and 18 either party shall be entitled to a 
 jury trial upon demand. It shall be unlawful for any attorney engaged 
 in any such appeal to charge or receive any fee therein in excess of a 
 reasonable fee, to be fixed by the court in the case, and, if the de- 
 cision of the department shall be reversed or modified, such fee and 
 the fees of medical and other witnesses and the costs shall be payable as 
 follows: Out of the administration fund, if the accident fund is affected 
 by the litigation, out of the first aid fund if it is the fund so affected. 
 In other respects the practice in civil cases shall apply. Appeal shall 
 lie from the judgment of the superior court as in other civil cases. 
 The attorney general shall be the legal adviser of the department and 
 shall represent it in all proceedings, whenever so requested by any of 
 the commissioners. In all court proceedings under or pursuant to this 
 
23 
 
 act the decision of the department shall be prima facie correct, and 
 the burden of proof shall be upon the party attacking the same. 
 
 Sec. 24. Creation of Department. 
 
 The administration of this act is imposed upon a department, to be 
 known as the Industrial Insurance Department, to consist of three 
 commissioners to be appointed by the governor, one of whom shall be 
 chosen from the members of organized labor. One of them shall hold 
 office for the first two years, another for the first four years, and an- 
 other for the first six years following the passage and approval of 
 this act. Thereafter the term shall be six years. Each commissioner 
 shall hold until his successor shall be appointed and shall have quali- 
 fied. A decision of any question arising under this act concurred in by 
 two of the commissioners shall be the decision of the department. 
 The governor may at any time remove any commissioner from ofiice 
 in his discretion, but within ten days following any such removal the 
 governor shall file in the office of the secretary of state a statement of 
 his reasons therefor. The commissioners shall select one of their 
 number as chairman. The main office of the commission shall be at 
 the state capitol, but branch offices may be established at other places 
 in the state. Each member of the commission shall have power to 
 issue subpoenas requiring the attendance of witnesses and the pro- 
 duction of books and documents. 
 
 Sec. 25. Salary of Commissioners. 
 
 The salary of each of the commissioners shall be thirty-six hundred 
 dollars per annum, and he shall be allowed his actual and necessary 
 traveling and incidental expenses; and any assistant to the commis- 
 sioners shall be paid for each full day's service rendered by him his 
 a,ctual and necessary traveling expenses and such compensation as 
 the commissioners may deem proper, not to exceed six dollars per day 
 to an auditor, or five dollars per day to any other assistant. 
 
 Sec. 26. Deputies and Assista^its. 
 
 The commissioners may appoint a sufficient number of auditors and 
 assistants to aid them in the administration of this act, at an expense 
 not to exceed $5,000.00 per month. They may employ one or more 
 physicians in each county for the purpose of official medical examina- 
 tions, whose compensation shall be limited to five dollars for each 
 examination and report therein. They may procure such record books 
 as they may deem necessary for the record of the financial transactions 
 and statistical data of the department, and the necessary documents, 
 forms and blanks. They may establish and require all employers to 
 install and maintain an uniform form of payroll. 
 
 Sec. 27. Conduct, Management and Supervision of Department. 
 The commission shall, in accordance with the provisions of this act: 
 1. Establish and promulgate rules governing the administration 
 of this act. 
 
M 
 
 2. Ascertain and establish the amounts to be paid into and out of 
 accident and first aid funds. 
 
 3. Regulate the proof of accident and extent thereof, the proof of 
 death and the proof of relationship and the extent of dependency. 
 
 4. Supervise the medical, surgical and hospital treatment accorded 
 under the first aid provisions of this act, to the intent that same may 
 be in all cases suitable and wholesome. 
 
 5. Issue proper receipts for moneys received, and certificates for 
 benefits accrued and accruing. 
 
 6. Investigate the cause of all serious injuries and report to the 
 governor from time to time any violations or laxity in performance of 
 protective statutes or regulations coming under the observation of the 
 department. 
 
 7. Compile and preserve statistics showing the number of acci- 
 dents occurring in the establishment or works of each employer, the 
 liabilities and expenditures of the accident and first aid funds on ac- 
 count of, and the premium collected from the same. 
 
 8. Make annual reports to the governor (one of them not more 
 than sixty nor less than thirty days prior to each regular session of 
 the legislature) of the workings of the department, and showing the 
 financial status and the outstanding obligations of the accident and 
 first aid funds, and the statistics aforesaid. 
 
 Sec. 28. Medical Witnesses. 
 
 Upon the appeal of any workman from any decision of the depart- 
 ment affecting the extent of his injuries or of the progress qf. the 
 same, the court may appoint not to exceed three physicians to ex- 
 amine the physical condition of the appellant, who shall make to the 
 court their report thereon, and they may be interrogated before the 
 court by or on behalf of the appellant in relation to the same. The fee 
 of each shall be fixed by the court, but shall not exceed ten dollars per 
 day each. 
 
 Sec. 29. Dishursevient of Funds. 
 
 Disbursements out of the funds shall be made only upon warrants 
 drawn by the state auditor upon vouchers therefor transmitted to him 
 by the department and audited by him. The state treasurer shall pay 
 every warrant out of the fund upon which it is drawn. If, at any 
 time, there shall not be sufficient money in the fund on which any 
 such warrant shall have been drawn wherewith to pay the same, the 
 employer on account of whose workman it was that the warrant was 
 drawn shall pay the same, and he shall be credited upon his next fol- 
 ioing contribution to such fund the amount so paid with interest 
 thereon at the legal rate from the date of such payment to the date 
 such next following contribution became payable, and if the amount of 
 the credit shall exceed the amount of the contribution, he shall have 
 a warrant upon the same fund for the excess, and if any such warrant 
 shall not be so paid, it shall remain nevertheless payable out of the 
 fund. The state treasurer shall to such extent as shall appear to him 
 
25 
 
 to be advisable keep the moneys of the first aid fund and the un- 
 segregated portion of the accident fund invested at interest in the 
 class of securities provided by law for the investment of the permanent 
 school fund. The state treasurer shall be liable on his official bond 
 for the safe custody of the moneys and securities of the first aid fund, 
 but all the provisions of an act approved February 21, 1907, entitled 
 "An act to provide for state depositories and to regulate the deposits of 
 state moneys therein" shall be applied to said moneys and the handling 
 thereof by the state treasurer. 
 
 Sec. 30. Test of Invalidity of Act. 
 
 If any employer shall be adjudicated to be outside of the lawful 
 scope of this act, the act shall not apply to him or his workmen, or if 
 any workman shall be adjudicated to be outside the lawful scope of 
 this act because of remoteness of his work from the hazard of his em- 
 ployer's work, any such adjudication shall not impair the validity of 
 this act in other respects, and in every such case an accounting in ac- 
 cordance with the justice of the case shall be had of moneys received. 
 In the latter case no payment into the first aid fund shall be required in 
 future on or for account of such workman, his wages shall not be com- 
 puted as a part of the payroll under section 4. and he shall not, nor 
 shall his family or dependents be beneficiaries of either the accident or 
 first aid funds, nor shall this act apply to him or them in other re- 
 spects. If the provisions of this act for the creation of the first aid 
 fund shall be adjudicated to be invalid, the provisions relating to 
 benefits therefrom and disbursements thereof shall thereupon become 
 invalid, and all moneys received into the first aid fund shall be dis- 
 tributable according to the justice of the matter, but such adjudica- 
 tion shall not impair the validity of this act in other respects. If 
 the provisions of section 4 of this act for the creation of the acci- 
 dent fund, or the provisions of this act making the compensation to 
 the workmen provided in it exclusive of any other remedy on the 
 part of the workman shall be held invalid the entire act shall be 
 thereby invalidated except the provisions of section 31, and an ac- 
 counting according to the justice of the case shall be had of moneys 
 received. In other respects an adjudication of invalidity of any part 
 of this act shall not affect the validity of the act as a whole or any 
 other part thereof. 
 
 Sec. 31. Statute of Limitations Saved. 
 
 If the provisions of this act relating to compensation for injuries 
 to or death of workmen become invalid because of any adjudication, 
 or be repealed, the period intervening between the occurrence of an 
 injury or death and such repeal or the rendition of the final adjudica- 
 tion of invalidity shall not be computed as a part of the time limited 
 by law for the commencement of any action relating to such injury 
 or death; but in any such action any sum paid out of the accident 
 fund and one-half of any sums paid out of the first aid fund to the 
 workman on account of injury to whom the action is prosecuted, shall 
 
26 
 
 be taken into account or disposed of as follows: If the defendant em- 
 ployer shall have paid without delinquency into the accident fund 
 the payment provided by section 4 and into the first aid fund his share 
 of the payments provided by section 10, such sums shall be credited 
 upon the recovery as payment thereon, otherwise the sums shall not 
 be so credited but shall be deducted from the sum collected and be 
 paid into the fund from which they had been previously disbursed. 
 
 Sec. 32. Appropriations. 
 
 There is hereby appropriated out of the state treasury the sum 
 of one hundred and fifty thousand dollars, or so much thereof as 
 may be necessary, to be known as the administration fund, out of 
 which the salaries, traveling and office expenses of the department 
 shall be paid, and also all other expenses of the administration of 
 the accident fund; and there is hereby appropriated out of the acci- 
 dent fund for the purpose to which said fund is applicable the sum of 
 
 I and out of the first aid fund for purposes to which said fund 
 
 is applicable the sum of $ , or in either case so much thereof 
 
 as shall be necessary for the purposes of this act. 
 
 Sec. 33. Safeguard Regulations Preserved. 
 
 Nothing in this act contained shall repeal any existing law pro- 
 viding for the installation or maintenance of any device, means or 
 method for the prevention of accidents in extra hazardous work or 
 for a penalty or punishment for failure to install or maintain any such 
 protective device, means or method, but sections 8, 9 and 10 of the 
 act approved March 6, 1905, entitled: "An Act providing for the 
 protection and health of employes in factories, mills or workshops, 
 where machinery is used, and providing for suits to recover dam- 
 ages sustained by the violation thereof, and prescribing a punishment 
 for the violation thereof and repealing an act entitled 'An Act provid- 
 ing for the protection of employes in factories, mills or workshops 
 where machinery is used, and providing for the punishment of the 
 violation thereof,' approved March 6, 1903, and repealing all other 
 acts or parts of acts in conflict herewith," are hereby repealed, ex- 
 cept as to any cause of action which shall have accrued thereunder 
 prior to October 1, 1911. 
 
 Sec. 34. Distribution of Funds in Case of Repeal. 
 
 If this act shall be hereafter repealed, all moneys which are in 
 the accident and first aid funds at the time of the repeal shall be 
 subject to such disposition as may be provided by the legislature, 
 and in default of such legislative provision distribution thereof shall be 
 in accordance with the justice of the matter, due regard being had to 
 obligations of compensation incurred and existing. 
 
 Sec. 35. Saving Clause. 
 
 This act shall not affect any contract entered into before its passage 
 and existing, or any action pending or cause of action existing on the 
 30th day of September, 1911. 
 
27 
 ATTORNEY'S REPORT. 
 
 The commission, having determined to report to the governor the 
 foregoing proposed act as providing the most desirable method of 
 covering, by legislation, the entire field of liability for industrial acci- 
 dents, has requested a report from its attorney upon the constitution- 
 ality of the proposed act. 
 
 The proposed act is the first complete application attempted in the 
 United States of the principles undei'lying the legislation which, 
 throughout continental Europe, has proved successful, satisfactory and 
 beneficial to all interests. By its express terms (section 1) it is as- 
 serted and justified from a legal and economical standpoint by the 
 sovereign and police power of the state. Is it within those powers? 
 
 I. — The Police Power. 
 
 Definitions of the police power are multitudinous; a few of them 
 are submitted: 
 
 "It aims to regulate the intercourse of citizen with citizen, to pre- 
 scribe the manner of using one's property and pursuing one's occupation 
 so as not to trespass on the property or rights of others, and as such is 
 a power whose necessities and uses grow with the increasing complex- 
 ities of our civilization and the increasing diversities in the industries 
 and modes of life. The sphere, therefore, of its operations is ever 
 widening. Every new use to which the forces of nature are put calls 
 for a new interference of this power, that such use may not operate to 
 the injury of others." Brewer, J., in K. P. Raihvay Co. vs. Moore, 16 
 Kan. 573. 
 
 "The power we allude to is rather the police power, the power 
 vested in the legislature by the constitution to make, ordain and estab- 
 lish all manner of wholesome and reasonable laws, statutes and ordi- 
 nances, whether with penalties or without, not I'epugnant to the consti- 
 tution, as they shall judge to be for the good and welfare of the com- 
 monwealth and of the subjects of the same." Shaw, C. J., in Common- 
 wealth vs. Alger, 7 Cush. (Mass.) 85. 
 
 "This police power of the state extends to the protection of the 
 lives, limbs, health, comfort and quiet of all persons and the protection 
 of all property within the state. * * * There is also the general police 
 power of the state, by which persons and property are subjected to all 
 kinds of restraints and burdens in order to secure the general health, 
 comfort and prosperity of the state, of the perfect right in the legisla- 
 ture to do which no question ever was or, upon acknowledged general 
 principles, ever can be made." Redfield, C. J., in Thorpe vs. Rutland 
 etc. R. R. Co., 27 Vt. 149. Strong, J., in R. R. Co. vs. Husen, 95 U. S. 465. 
 
 "By means of this power the legislature exercises a supervision over 
 matters involving the common weal and enforces the observance by 
 each individual member of society of the duties which he owes to 
 others and to the community at large. It may be exerted whenever 
 necessary to secure the peace, good order, health, morals and general 
 welfare of the community. * * * in short, the police power covers a 
 wide range of particular unexpressed powers reserved to the state af- 
 fecting the freedom of action, personal conduct and the use and control 
 of property." Andrews, J., in People vs. King, 110 N. Y. 418, 
 
28 
 
 "We hold that the police power of the state embi-aces I'egulations 
 designed to promote the public convenience or the general prosperity, 
 as well as regulations designed to promote the public health, the public 
 morals or the public safety." Harlan, J., in C, B. cP Q. Ily. Co. vs. Illi- 
 nois, 200 U. S. 341. 
 
 "The possession and enjoyment of all rights are subject to such 
 reasonable conditions as may be deemed by the governing authority of 
 the country essential to the safety, health, peace, good order and 
 morals of the community. * * * For the pursuit of any lawful trade 
 or business the law imposes similar conditions. Regulations respecting 
 them are almost infinite, varying with the nature of the business." 
 Field, J., in Croivley vs. Christianson, 137 U. S. 86. 
 
 "The power of the state, sometimes termed its police power, to pre- 
 scribe regulations promoting the health, peace, morals, education and 
 good order of the people, and to legislate so as to increase the industries 
 of the state, develop its resources and add to its welfare and pros- 
 perity." Field, J., in Barbie)- vs. Connolly. 113 U. S. 31; Fuller, J., in 
 In re Kemmler, 136 U. S. 436. 
 
 "The police power is not subject to any definite limitations, but is 
 co-extensive with the necessities of the case and the safeguard of the 
 public intrests." Brown, J., in Camflelcl vs. U. S.. 167 U. S. 518. 
 
 "The police power of the state in its broadest subdivision means 
 the general power of the state to preserve and promote the public wel- 
 fare, even at the expense of private rights." Anders, J., in Karasek vs. 
 Peier, 22 Wash. 419. 
 
 "That inherent and plenarj' power iu the state which enables it to 
 prohibit all things hurtful to the comfort, safety and welfare of so- 
 ciety." Dunbar, J., in State vs. Carey, 4 Wash. 427. 
 
 "The police power is that which tends to promote the public health, 
 comfort and welfare." Rudkin, C. J., in Smith vs. Spokane, 55 
 Wash, 221. 
 
 Article 2, section 35, of the constitution of Washington reads as 
 follows: "The legislature shall pass necessary laws for the protection 
 of persons working in mines, factories and other employments danger- 
 ous to life or deleterious to health, and fix pains and penalties for the 
 enforcement of the same." 
 
 This provision seems to bring the subject, in part at least, within 
 the legislative power. 
 
 Article 1, section 30, reads: "The enumeration in this constitution 
 of certain rights shall not be construed to deny others retained by the 
 people." 
 
 The police power has been variously applied to statutes imposing 
 liability upon or I'egulating the liability of those engaged in dangerous 
 works or businesses. Instances are: 
 
 Kirby vs. Pennsylvania, etc., R. R. Co., 76 Pa. St. 506, sustaining a 
 state statute giving one injured while engaged on or near a railroad 
 only the same right of action as an employe; in other words, abolish- 
 ing in such cases the common law doctrine of respondent superior. 
 The same statute was lately sustained in Martin vs. Pittslturgli, etc., Co., 
 203 U. S. 284. 
 
 C, R. I. & P. Ry. vs. Zernecke, 59 Neb. 689, sustaining a state statute 
 making railroads liable for injury or death of passengers. AflBrmed in 
 183 U. S. 582. 
 
29 
 
 Bertholf vs. O'Reilly, 74 N. Y. 509, sustaining a statute imposing 
 liability upon the owner of premises leased for the sale of intoxicating 
 liquors for damages caused by drunkenness. 
 
 Bacon vs. Walker, 204 U. S. 311, sustaining a state statute imposing 
 liability upon one iiasturing sheep on the public domain within two 
 miles of a dwelling. 
 
 Jones vs. Brim, 165 U. S. 180, sustaining a state statute imposing 
 liability upon the owner of a herd of animals, driving same on the 
 public road on a hillside, for damages caused by falling rocks, etc. 
 
 M. P. Ry. Co. vs. Mackey, 127 U. S. 205, sustaining a state statute 
 making railroad companies liable for the negligence of fellow-servants. 
 
 Minneapolis, etc., R. R. Co. vs. Emmons, 149 U. S. 364, sustaining a 
 state statute making railroad companies liable for stock killed on their 
 unfenced right-of-way. 
 
 St. Louis, etc., Ry. Co. vs. Matthews, 165 U. S. 1, sustaining a state 
 statute imposing liability upon railroad companies for damage caused 
 by fire set out by their locomotives. 
 
 Atchison etc. R. R. Co. vs. Matthews, 174 U. S. 96, and 
 
 Missouri Pacific R. R. Co. vs. Humes, 115 U. S. 512, are like cases. 
 
 Wilmington Mining Co. vs. Fulton, 205 U. S. 60, making mine owners 
 liable for the negligence of mine examiners employed pursuant to 
 state examination. 
 
 Ives vs. R. R. Co., 124 N. Y. Supp. 920 (since affirmed by the supreme 
 court of New York), sustaining a state statute making employers en- 
 gaged in dangerous work insurers, to some extent, of the safety of 
 their workmen. 
 
 Kiley vs. Chicago, etc., Ry. Co., 138 Wis. 215, sustaining a state 
 statute making railroad companies liable for negligence of fellow ser- 
 vants. 
 
 Missouri Pacific Ry. Co. vs. Healy, 25 Kan. 35; 
 
 Buckloio vs. Central la. Ry. Co. (la.), 21 N. W. 103; 
 
 Pierce vs. Van Duzen, 78 Fed. 693; 
 
 Campbell vs. Cook, 86 Tex. 630, are like cases. 
 
 State statutes limiting the hours of labor have been sustained be- 
 cause within the police power in numerous cases. Instances are: 
 
 Holclen vs. Hardy, 169 U. S. 366, sustaining a state statute limiting 
 the hours of labor in underground mines and smelters. 
 
 State vs. Buchanan, 29 Wash. 602, sustaining a state statute pro- 
 hibiting the employment of women more than ten hours a day in mer- 
 cantile pursuits. 
 
 Muller vs. Oregon, 208 U. S. 412, is a like case. 
 
 So it seems safe to conclude that the proposed act is within the 
 police power of the state. It remains to consider whether the manner 
 of the exercise of the power as proposed is obnoxious to any constitu- 
 tional provision. Does it conflict with the constitutional rights of any 
 interest affected by it? It affects the state, the employer, the employe. 
 
30 
 
 II. — Validity as to the State. 
 The act proposes to create a new state department, and to appro- 
 priate a sum of money out of the state treasury to defray the ex- 
 penses of the administi'ation of the department. Washington has no 
 constitutional limitation upon the power of the legislature to expend 
 as it wills the money of the state (except the permanent school fund, 
 which is not here involved, and except that no public money may be 
 appropriated for any religious worship or establishment), unless there 
 be a limitation to be implied, that taxation shall only be for public 
 purposes. If so, it nevertheless must be clear that it is a public pur- 
 pose to pay the salaries and defray the office, traveling and court ex- 
 penses of state officials, and other expenses of a state department 
 charged with the administration of a branch of the police power of 
 the state, just as the state bears without question the expense of ad- 
 ministration of other departments, e. g., the railroad commission, mine, 
 factory, grain and hotel inspection, all operating under the police 
 power. 
 
 III. — Validity as to the Employer, Direct. 
 
 The act proposes to place (indirectly) upon the employer engaged 
 In extra hazardous operations the burden of all accidents to his em- 
 ployes. The causes of action for injury to workmen recognized in 
 present day law involve negligence of either: (a) the employer; (b) 
 a fellow employe; (c) the employer, that of the injured employe con- 
 tributing, i. e., combined negligence; (d) the employe; or (e) the 
 doctrine of assumed risk. 
 
 For (a) the burden is already upon the employer. 
 
 For (b) the burden has been in some jurisdictions shifted by statute, 
 in some cases as to certain and in others as to all employments: Ar- 
 kansas 1907, Colorado 1901, Florida 1906, Georgia 1895, Iowa 1897 and 
 1902, Kansas 1874 and 1901, Maryland 1888, Minnesota 1905, Missouri 
 1899, Montana 1905, Nebraska 1907, Nevada 1907, New Mexico 1897, 
 North Carolina 1905, North Dakota 1907, South Dakota 1907, Texas 
 1897, Wisconsin 1898, and such statutes have been sustained by the 
 courts as a lawful exercise of the police power. 
 
 Missouri Pacific Ry. Co. vs. Mackey, 127 U. S. 205, in which the 
 court, in sustaining the Kansas act of 1874 abolishing the fellow servant 
 doctrine in the case of railroad companies, said: 
 
 "The supposed hardship and injustice consist in imputing liability to 
 the company, where no personal wrong or negligence is chargeable to 
 it or its directors. But the same hardship and injustice, if there be 
 any, exist when the company, without any wrong or negligence on its 
 part, is charged for injuries to passengers. Whatever care and precau- 
 tion may be taken in conducting its business or in selecting its servants, 
 if injury happen to the passengers from the negligence or incompetency 
 of the servants, responsibility therefor at once attaches to it. The ut- 
 most care on its part will not relieve it from liability, if the passenger 
 injured be himself free from contributory negligence. The law of 1874 
 extends this doctrine and fixes a like liability upon railroad companies, 
 where injuries are subsequently suffered by employes, though it may 
 be by the negligence or incompetency of a fellow servant in the same 
 general employment and acting under the same immediate direction. 
 
31 
 
 That its passage was within the competency of the legislature we have 
 no doubt." 
 
 Kiley vs. Chicago etc. Ry. Co., 138 Wis. 215; 
 
 Ditherner vs. Chicago etc. Ry. Co., 47 Wis. 128; 
 
 Missouri Pacific Ry. Co. vs. Healy, 2.5 Kan. 35; 
 
 Missouri Pacific Ry. Co. vs. Mackey, 33 Kan. 298; 
 
 Bucklew vs. Central Iowa Ry. Co. (la.), 21 N. W. 103; 
 
 McAunich vs. M. <£• R. Co., 20 la., 338; 
 
 Mining Co. vs. Firsthrook, 36 Col. 498; 
 
 Deppe vs. R. R. Co., 36 la. 52; 
 
 Pierce vs. YanDuzen, 78 Fed. 693; 
 
 Campbell vs. Cook, 86 Tex. 630; 
 
 Thompson vs. Banking Co., 54 Ga. 509; 
 
 Railroad Co. vs. Ivey, 73 Ga. 499; 
 
 Missouri Pacific Ry. Co. vs. Castle (C. C. A.), 172 Fed. 841. 
 
 (c) It was also a like defense that the negligence of the injured 
 employe contributed, even though slightly, to the injury. In some 
 jurisdictions the legislatures, in others the courts, have modified the 
 rigor of this defense. In some, where the contributory negligence is 
 slight, it is no longer a defense, but is considered in mitigation of 
 damages; statutes of Nebraska 1907, Nevada 1907, North Dakota 1907, 
 act of Congress 1906, sustained in R. R. Co. v. Gutierrez, 215 U. S. 87. 
 In Wisconsin, by the statute of 1898, the test is whether the negligence 
 of the employer was greater than that of the injured employe. By 
 some state statutes it is made a pro tanto defense v^/^ithout regard to 
 preporderance: Florida 1906, Maryland 1888, Georgia 1895, South Da- 
 kota 1907. 
 
 In Illinois the courts for a period of years adopted without statute 
 the doctrine of comparative negligence, their decisions varying upon 
 the question of preponderance: 
 
 Railroad Co. vs. Still, 19 111. 499; 
 Raih-oad Co. vs. Jacobs, 20 111. 478; 
 Railroad Co. vs. Sweeny, 52 111. 325; 
 Railroad Co. vs. Johnson, 116 111. 206; 
 Coal Co. vs. Abbott, 181 111. 495; 
 Coal Co. vs. Denman, 185 111. 413; 
 Western Coal Co. vs. Weaver, 192 111. 333. 
 
 The Georgia statute was enforced in the following cases: 
 
 Christian vs. Ry. Co., 120 Ga. 314 
 Railroad Co. vs. Wiggins, 113 Ga. 842; 
 Willinghatn vs. Railroad Co., 113 Ga. 374; 
 Railroad Co. vs. Netoman, 94 Ga. 560; 
 
 and has been applied to the case of a passenger by the Circuit Court 
 of Appeals, opinion by Judge Taft, in 88 Fed. 455. 
 
 Tennessee and Kansas courts have also adopted the doctrine, there 
 being no statute: 
 
 Railroad Co. vs. Carroll, 6 Heisk, 347; 
 Wichita etc. Co. vs. Davis, 37 Kan. 743. 
 
 Other states have by statute abolished, in whole or in part, for cer- 
 tain classes of cases the doctrine of contributory negligence: Illinois 
 1905, New Mexico 1897, New York 1902, Ohio 1906. In the courts of 
 
32 
 
 admiralty such a division of damages in cases of combined negligence 
 has been the rule for years as between ships. Such statutes have 
 been sustained by the courts. 
 
 In Missouri Pacific Ry. Co. vs. Castle (C. C. A.), 172 Fed. 841, the 
 court said: "In so far as the statute creates the rule of comparative 
 negligence it in ho wise tends to destroy any of the constitutional 
 rights of the defendant." In the language of Mr. Justice Moody in 
 the Howard case, "The whole subject of contributory negligence is 
 under the control of the legislative power." 
 
 Therefore it seems safe to conclude that the defense of contril)utory 
 negligence may be lawfully abolished entirely. 
 
 (e) The doctrine of the defense of assumed risk is approximately 
 of the same age as the fellow servant defense. It is no more sacred. 
 It has been by statute in several states eliminated in part, and in some 
 states entirely, in cases where statutes or public regulations concern- 
 ing safeguards have been violated by the employer: Illinois 1905, 
 Indiana 1891, Iowa 1902, Massachusetts 1902, New York 1902, Ohio 
 1904 and 1906, Florida 1891, Texas 1891, Washington 1905, Wisconsin 
 1906, Wyoming 1891, United States 1901. Such legislation has been 
 generally sustained by the courts: 
 
 Ives vs. Railroad Co., 124 N. Y. Supp. 920; 
 
 Hall vs. West <t Slade Mill Co., 39 Wash. 447; 
 
 Johnson vs. 8. P. Co., 196 U. S. 1. 
 
 WalJcer vs. Railroad Co., 135 N. C. 738; 
 
 Mott vs. Railroad Co., 131 S. C. 234; 
 
 Cogdell vs. Ry. Co., 129 N. C. 398; 
 
 Thomas vs. Railroad Co., 129 N. C. 392; 
 
 Coal Co. vs. Abbott, 181 111. 495; 
 
 Coal Co. vs. Denman, 185 111. 413; 
 
 Davis Coal Co. vs. Polland, 27 Ind. App. 697; 
 
 Island Coal Co. vs. Swaggerty, 159 Ind. 664; 
 
 Islarramore vs. Ry. Co., 96 Fed. 298; 
 
 V. S. Cement Co. vs. Cooper (Ind.), 92 N. E. 981; 
 
 Hailey vs. Ry. Co., 113 La. 533; 
 
 Murphy vs. u-rand Rapids Co., 142 Mich. 677; 
 
 Kilpatrick vs. Ry. Co., 74 Vt. 288; 
 
 Johnson vs. Coal Co., 88 Ark. 243. 
 
 In Coley vs. Railroad Co., 129 N. C. 407, s. c. 128 N. C. 534, the con- 
 stitutional question was raised and expressly decided. 
 
 And in Lore vs. Manufacturing Co., 160 Mo. 608, the court said: 
 "The constitutionality of such laws is no longer in doubt." 
 
 (d) There remains to be considered the case where the injury 
 results from the fault of the employe (in which may be included the 
 employe's portion of combined negligence). The intentional wrong of 
 the employe is to be first eliminated, for the proposed act (section 6) 
 eliminates it. There are left the cases where, through momentary 
 distraction or inadvertent miscalculation, induced probably frequently 
 by the mental or physical fatigue of the workman, accidental injury 
 comes to the workman without any intention or moral fault of his 
 own. Such cases are now everywhere recognized as inevitable; as a 
 necessary hazard of the work; as certain to happen as the machinery 
 
33 
 
 to break. The moral fault of the workman being eliminated, the sub- 
 ject seems as clearly within the legislative power as the doctrine of 
 assumed risk or contributory negligence. 
 
 This principle should be applied to all so-called degrees of negli- 
 gence. The courts are today, unaided by statute, discarding the com- 
 putation of negligence by degrees, and are establishing the simpler 
 doctrine that negligence is the absence of due care, having in view 
 the surrounding circumstances of each case. So that, when the question 
 of moral fault is eliminated, the power of the legislature to deal with 
 the negligence doctrine cannot be made to depend upon whether here- 
 tofore the negligence would have been calleci gross, ordinary, or slight. 
 
 The New York court in the Ives case, above cited, said: 
 
 "That the legislature has the power to deal with the question of em- 
 ployers' liability on a basis other than fault is not clear beyond perad- 
 venture, but every presumption is in favor of the constitutionality of 
 the act. Nor do I find its constitutionality so doubtful as to warrant 
 this court in holding that such action is not within the constitutional 
 power of the legislature." 
 
 The question is closely allied to that of the legislative power to 
 take away from the employe his common law cause of action based on 
 the negligence of the employer, which is hereinafter discussed. It 
 would seem to follow that if the latter is v/ithin the legislative power 
 the legislature is also competent to put upon the industry the burden 
 of all accidental injuries due to its operation, not caused by any moral 
 wrong of the employe. The common law makes every case turn upon 
 some application of the doctrine of negligence. If, in the legislative 
 discretion, the doctrine of negligence, as between employer and injured 
 employe, has proven unfitted to the wonderful increase of hazard in 
 modern industrial life, it may be lawfully, as it may be justly, dis- 
 carded as the test of liabilitj^ and some other rule substituted in its 
 place. 
 
 The Supreme Court of the United States in Railroad Co. vs. Zernecke, 
 183 U. S. 582, in sustaining the Nebraska act making railroad com- 
 panies insurers of the safety of their passengers regardless of fault, 
 said: 
 
 "Our jurisdiction affords examples of legal liability without fault 
 and the deprivation of property without fault being attached to its 
 owner. The law of deodands was such an example; the personification 
 of a ship in admiralty law is another. Other examples are afforded in 
 the liability of the husband for the torts of the wife, and the liability 
 of a master for the acts of his servants." 
 
 This language of the Supreme Court was applied to the recent New 
 York statute in Ives vs. Ry. Co., 124 N. Y. Supp. 926. 
 
 In the Osceola, 189 U. S. 158, it is held that the admiralty law 
 makes the ship liable for maintenance and care and medical treat- 
 ment of all seamen injured, whether the injury was caused by any 
 fault of the ship or not. 
 
 To the same effect is Sanders vs. Stimson Mill Co., 32 Wash. 627. 
 
34 
 
 The Court of Appeals of New York in Bertholf vs. O'Reilly, 74 N. 
 Y. 509, said: 
 
 "And the act of 1873 is not invalid because it creates a right of action 
 and imj)oses a liability not known to the common law. There is no 
 such limit to legislative power. The legislature may alter or repeal 
 the common law. It may create new offenses, enlarge the scope of civil 
 remedies, and fasten responsibility for injuries upon persons against 
 whom the common law gives no remedy. We do not mean that the 
 legislature may impose upon one man liability for an injury suffered by 
 another with which he had no connection. But it may change the rule 
 of the common law, which looks only to the proximate cause of the mis- 
 chief in attaching legal r^^onsibility, and allow a recovery to be had 
 against those whose acts contributed, although remotely, to produce it." 
 
 Another instance of the imposition of a new liability is afforded in 
 the case of Railway Co. vs. Emmons, 149 U. S. 364, sustaining a state 
 statute which required railroads to fence their right-of-way, and made 
 them liable for damages to all stock killed and for depreciation in 
 value of adjacent land. 
 
 Another instance is the case of Railway Co. vs. Matheivs, 165 U. S. 1, 
 in which the court sustained the Missouri statute making railroad 
 companies absolutely liable for all damage caused by fire set out by 
 them, saying: 
 
 "When both parties are equally faultless, the legislature may prop- 
 erly consider it to be just that the duty of insuring private property 
 against loss or injury caused by the use of dangerous instruments should 
 rest upon the railroad company which employs the instruments and 
 creates the peril for its own profit, rather than upon the owner of the 
 property who has no control over or interest in those instruments. * * 
 * The statute is a constitutional and valid exercise of the legislative 
 power of the state." 
 
 Another instance is the case of Railway Co. vs. Mackey, 127 U. S. 
 205, sustaining a state statute abolishing, as to railroad employers, the 
 fellow servant doctrine, the court saying: 
 
 "The supposed hardship and injustice consist in imputing liability to 
 the company where no personal wrong or negligence is chargeable to it 
 or its directors. * * * That its passage was within the competency 
 of the legislature we have no doubt." 
 
 Another instance is Streubel vs. Railway Co., 12 Wis. 74, sustain- 
 ing the constitutionality of an act imposing liability upon railroad 
 companies for the wages of laborers earned by work on its road, 
 though in the employment of an independent contractor. 
 
 Another instance is the decision in Jones vs. Brim, 165 U. S. 180, 
 sustaining a state statute imposing absolute liability upon the owner 
 of a herd of animals for all damages caused by driving the same on a 
 public road on the hillside, by falling rocks, etc., the court saying: 
 
 "In effect, the legislature declared that the passage of droves or 
 herds of animals over a hillside highway was so likely, if great precau- 
 tions were not observed, to result in damage to the road, that where 
 this damage followed such driving there ought to be no controversy 
 over the existence or non-existence of negligence, but that there should 
 be an absolute legal presumption to that effect resulting from the fact 
 of having driven the herd." 
 
35 
 
 In Jensen vs. Railroad Co., 127 N. W. (S. D.) 650, the court holds 
 constitutional a statute making railroads absolutely liable for all fires 
 set out and also making them liable absolutely for all injury to stock 
 by failure to build sufficient fences and cattle guards, saying: 
 
 "The exercise of the police power in this class of cases is based upon 
 the ground that where persons are engaged in a calling or business at- 
 tended with danger to other persons and their property, then the legis- 
 lature may step in and impose conditions upon the exercise of such 
 calling or business for the general good and welfare of society, and may 
 prescribe the terms upon which such dangerous calling or business will 
 be permitted to be carried on by persons in charge thereof, whether such 
 persons happen to be private individuals or railway corporations." 
 
 It seems to be a sound and safe conclusion that so far the proposed 
 act presents no real constitutional difficulty. 
 
 IV. — Valiuity as to Ejiployer Indirect. 
 
 The question has so far been considered as if it were proposed to 
 place upon each employer engaged in hazardous work the direct re- 
 sponsibility for all injuries happening to his own employes. The pro- 
 posed act goes further, and, relieving all such employers from any 
 direct liability whatsoever (the one exception, section 8, is not of im- 
 portance in this connection) to their employes, requires each employer 
 to contribute money (the amount thereof depending upon the largeness 
 of his operations, his payroll being the rule of measure, and upon the 
 relative degree of hazard incident to the class of his work) to a fund 
 out of which all injured employes or, if death results, their families 
 and dependents are compensated and cared for. 
 
 Authorities upon this phase of the matter are few, but fortunately 
 well reasoned and convincing. 
 
 In State vs. Cassidy, 22 Minn. 312, the court sustained an act to 
 establish a fund for the foundation and maintenance of an asylum for 
 inebriates, requiring all sellers of liquors to pay ten dollars a year to 
 the state treasurer, through the county treasurers, in addition to the 
 usual license, the fund to be disbursed bj^ a state commission in the 
 erection and operation of a state asylum for inebriates. The court in 
 its opinion points out that the act is an exercise of the police power 
 upon a subject clearly within that power, saying: 
 
 "The act 'regards the traffic as one tending to produce intemperance, 
 and as likely, by reason thereof, to entail upon the state the expense 
 and burthen of providing for a class of persons rendered incapable of 
 self-support, the evil influence of whose presence and example upon so- 
 ciety is necessarily injurious to the public welfare and prosperity, and, 
 therefore, calls for such legislative interposition as will operate as a re- 
 straint upon the business, and protect the community from the mis- 
 chiefs, evils and pecuniary burthens flowing from its prosecution. * * 
 * That these provisions unmistakably partake of the nature of police 
 regulations, and are strictly of that character, there can be no doubt, 
 nor can it be denied that their expediency or necessity is solely a legis- 
 lative, and not a judicial, question. * * * Regarding the law as a 
 precautionary measure, intended to operate as a wholesome restraint 
 upon the traffic, and as a protection to society against its consequent 
 evils, the exacted fee is not unreasonable in amount, and the purpose to 
 which it is devoted is strictly pertinent and appropriate. It could not 
 
36 
 
 be questioned but that a reasonable sum imposed in the way of an in- 
 demnity to the state against the expense of maintaining a police force 
 to supervise the conduct of those engaged in the business and to guard 
 against the disorders and infractions of law occasioned by its prosecu- 
 tion, would be a legitimate exercise of the police i)Ower, and not open 
 to the objection that it was a tax for the purpose of revenue, and, 
 therefore, unconstitutional. Reclaiming the inebriate, restoring him to 
 society, prepared again to discharge the duties of citizenship, equally 
 promotes the public welfare, and tends to the accomplishment of like 
 beneficial results, and it is difficult to see wherein the imposition of a 
 reasonable license fee would be any the less a proper exercise of this 
 power in the one case than in the other. The purpose to which the 
 license fund ci-eated by the act is designated is more consonant to the 
 idea of regulating the traffic and preventing its evils than is the case 
 under the general license law, which devotes the fees received to com- 
 mon school purposes, and we are not aware that any objection has ever 
 been urged against that law on that account." 
 
 This case is cited with approval by Professor Fruend in his work 
 upon the police power, section 623. 
 
 The proposed act deals with a class of hazardous businesses sure to 
 produce the crippling and death of employes, with the consequent bur- 
 den on the state to support them and the consequent evil effect on the 
 public welfare and prosperity. 
 
 The Court of Appeals of New York in Bertliolf vs. O'Reilly, supra, 
 speaking in justification of an exercise of the police power in connec- 
 tion with the sale of intoxicants, says: "Impoverishment of families, 
 the imposition of public burdens, and insecurity of liie and liberty are 
 consequent upon the prevalence of the great evil of intemperance." 
 
 There seems to be a reasonable analogy in the statute of South 
 Carolina providing for the appointment of railroad commissioners and 
 requiring the expense of the department to be borne by the several 
 railroads of the state "according to their gross income proportioned to 
 the number of miles" in the state. The Supreme Court of the state 
 sustained the act, holding that the enforced contribution was not a 
 tax within the meaning of the provision of the state constitution re- 
 quiring all taxes to be unifoi-m, but was more in the nature of a 
 license fee. 
 
 Charlotte, etc., Railroad Co. vs. Gihies, 27 S. C. 385. 
 
 The case came before the Supreme Court of the United States in 
 142 U. S. 386. The Supreme Court, stating that the duties of the rail- 
 road commissioners are in the highest degree beneficial to the public, 
 said that the 
 
 "Mode or manner of regulation is a matter of legislative discretion. 
 * * * Their services are for the benefit of the railroad corporations 
 as well as of the public. * * There would seem to be no sound reason 
 why the compensation of the commissioners in such case should not be 
 met by the corporations the operation of whose roads, and the exercise 
 of whose franchises, are supervised. * * There are many instances 
 where i)arties are compelled to perform certain acts, and to bear cer- 
 tain expenses, when the public is interested in the acts which are per- 
 formed as much as the parties themselves." 
 
 A like analogy is suggested in the New York act appointing a sub- 
 way commission to supervise the putting underground of electric wires 
 
37 
 
 and requiring the salaries and expenses of the commission to be paid 
 out of the fund to be paid into the state treasury by the companies 
 operating electrical conductors underground pl•oportionatelJ^ This act 
 was sustained by the Supreme Court of the United States in the case 
 of People vs. Squire, 145 U. S. 175, upon the authority of the Gibbes 
 case. 
 
 In Consolidated Coal Co. vs. Illinois, 185 U. S. 207, the Illinois act 
 was sustained iDroviding for the inspection of coal mines and imposing 
 a liability on each mine inspected for the inspection fee of six dollars 
 to ten dollars for each visit, the number of visits to be determined by 
 the inspector. 
 
 It must be admitted that in practice individual cases may arise in 
 which the contribution of an employer may exceed the sums paid out 
 of the fund to his own employes; in other words, cases may arise in 
 which one employer will be found to have contributed to pay for the 
 compensation to and care of the injured employes of other employers. 
 The same condition existed in the Minnesota statute, supra. It seems 
 an answer to say that perfection or perfect equality is not expected or 
 required of legislation [Ry. Co. vs. Melton, 218 U. S. 36); and if such 
 inequalities do arise, the courts will not presume but that the legis- 
 lature will make use of the statistics gathered in the operation of the 
 act to readjust the schedules of contribution so as to more closely ap- 
 proximate exact equality. The proposed act declares such intent (sec- 
 tion 4), and the same section provides for increasing the rate of con- 
 tribution of the careless employes, and careful provision is made for re- 
 adjustment at the end of each year. 
 
 The marine hospital act, hereinafter referred to, would have been 
 subject to the same criticism, in that it required the master or owner 
 of every ship to pay into the treasury of the United States twenty-five 
 cents (later forty cents) per month for each seaman employed, the 
 fund to be used for the support of the U. S. Marine Hospital. This 
 imposition was laid without regard to the extent of use or need of 
 the hospital by the seamen of any particular ship. 
 
 Several of the states (Indiana, Michigan, Illinois and Kentucky), 
 exercising the police power for the promotion of the sheep industry, 
 have enacted statutes imposing a tax or license upon dogs in a stated 
 sum, collecting the same from the owners, placing the collections in 
 a public fund, and disbursing the same through state officers in paying 
 damages to owners of sheep for sheep killed by dogs. These statutes 
 have been in every case sustained by the courts: 
 
 McGlone vs. Womack. Ky. Court of Appeals, 111 S. W. 688; 
 Mitchell vs. Williayns, 27 Ind. 62; 
 .Van Home vs. People, 46 Mich. 183; 
 Cole vs. Hall. 103 111. 30; 
 Holtz vs. Roe, 39 Ohio St. 340. 
 
 In the first of these cases the very question above presented is de- 
 cided. While there is a strong dissenting opinion, it is submitted that 
 the grounds of the dissent in that respect are largely, if not entirely, 
 removed, by the provisions of the proposed act last above referred to. 
 
38 
 
 V. — Valiuity as to Employe. 
 
 The proposed act takes away absolutely from him his common law 
 right of action against his employer for non-fatal injuries caused by 
 the employer's negligence. As to fatal injuries, a cause of action 
 against an employer was unknown to the common law, is of statutory 
 creation, and consequently (since the constitution of the state con- 
 tains no inhibition) is subject without question to repeal by the legis- 
 lature. The proposed act carefully saves any right of action on ac- 
 count of any injury received prior to the date named for it to be- 
 come operative upon the employers and employes affected by it. The 
 question involves, not the taking away of a vested right of action, but 
 the changing of the law in respect of expectancies and possibilities 
 of action, in which the party has no pi'esent interest. 
 
 At an early day the legislature of Pennsylvania passed a statute 
 abolishing the doctrine of respondent superior in the case of persons 
 engaged on or near railroads and not in the employ of the railroad 
 company. The Supreme Court of Pennsylvania in Eirby vs. Railroad 
 Co., 76 Pa. St. 506, said of the act: 
 
 "The law says that the legal principle of respondeat superior shall 
 have no place in this particular relation; that as a matter of public 
 policy for the good of all, those who voluntarily venture into employ- 
 ment alongside of the servants of a railroad company shall have just the 
 same remedies for injuries happening in the employment that these 
 have, and none other. In doing this no fundamental right of the per- 
 son thus voluntarily venturing is cut off or struck down. The liability 
 of the company for the acts or omissions of others, though they be 
 servants, is only an offspring of law. The negligence which injures is 
 not theirs in fact, but is so only by imputation of law. The law which 
 thus imputes it to the company, for reasons of public policy, can re- 
 move the imputation from the master and let it remain with the 
 servant whose negligence causes the injury." 
 
 The Supreme Court of the United States, in Martin vs. Railroad 
 Co.. 203 U. S. 284, had before it the same statute, and sustained it, 
 saying: 
 
 "If it be conceded, as contended, that the plaintiff in error could 
 have recovered but for the statute, it does not follow that the legislature 
 of Pennsylvania, in preventing a recovery, took away a vested right or 
 a right of property. As the accident from which the cause of action is 
 asserted to have arisen occurred long after the passage of the statute, 
 it is difficult to grasp the contention that the statute deprived the plain- 
 tiff in error of the rights just stated. Such a contention, in reason, 
 must rest upon the proposition that the state of Pennsylvania was 
 without potoer to legislate on the subject — a proposition which we have 
 adversely disposed of. This must be, since it would clearly follow, if 
 the argument relied upon were maintained, that the state would be 
 without power on the subject. For it cannot be said that the state had 
 authority in the premises if that authority did not even extend to pre- 
 scribing a rule which would be applicable to conditions wholly arising 
 in the future." 
 
 A right of action in favor of a third person against a master for 
 negligence of his servant was a common law right of action: 
 
 Littleton vs. Fowler, 1 Salk. 282; 
 
 Blackstone's Com. 431; 
 
 Gray vs. Portland Bank. 3 Mass. 363; 
 
 Harlow vs. Humiston, 6 Cowen 189. 
 
39 
 
 Judge Cooley, in his work on constitutional limitations, page 438 
 et seq., says: 
 
 "Vested rights cannot be taken away by legislative enactments, but 
 a right cannot be considered a vested right unless it is something more 
 than such a mere expectation as may be based upon the anticipated con- 
 tinuance of the present general laws. The legislature may change such 
 general laws constitutionally except as to a right or interest that may 
 have already accrued or become perfected. * * * in organized society 
 every man holds all he possesses and looks forward to all he hopes for 
 through the aid and under the protection of the laws; but, as changes 
 of circumstances and of public opinion, as well as other reasons affecting 
 the public policy are all the while calling for changes in the laws, and 
 as these changes must influence more or less the value and stability of 
 private relations and strengthen or destroy well founded hopes, and as 
 the power to make very many of them could not be disputed without 
 denying the right of the political community to prosper and advance, 
 it is obvious that many rights, privileges and exemptions that usually 
 pertain to ownership under a particular state of law, and many reson- 
 able expections. cannot be regarded as vested rights in any sense." 
 
 The Supreme Court of the United States in Munn vs. Illinois, 94 
 U. S. 113, said: 
 
 "But a mere common law regulation of trade or business may be 
 changed by statute. A person has no property, no vested interest, in 
 any rule of the common law. That is only one of the forms of munic- 
 ipal law, and is no more sacred than any other. Rights of property 
 which have been created by the common law cannot be taken away 
 without due process; but the law itself, as a rule of conduct, may be 
 changed at the will or even at the whim of the legislature, unless pre- 
 vented by constitutional limitations. Indeed, the great office of statutes 
 is to remedy defects in the common law as they are developed, and to 
 adapt it to changes of time and circumstances." 
 
 Applied to the relation of master and servant in Mining Co. vs. 
 Firstbrook, 36 Col. 498. 
 
 In the Ives case, supra, the court said: "The legislature may 
 alter or repeal the common law. It may create new offenses, enlarge 
 the scope of civil remedies, and fasten the responsibility for injuries 
 upon persons against whom the common law gives no remedy," the 
 language being a quotation from the decision of the Court of Appeals 
 in the Bertliolf case, supra. 
 
 Some of the states have in their constitutions, in substance, the 
 provision of Magna Charta: "Every man shall have a remedy for 
 injury done him in person, property or reputation." (No such pro- 
 vision is contained in the constitution of Washington). Nevertheless, 
 the principle last above stated has been sustained in states having 
 such a constitutional provision. In.stances are: 
 
 Templeton vs. Linn County, 15 L. R. A. 730, in which the Supreme 
 Court of Oregon said: 
 
 "The words 'and every man shall have a remedy by due process of 
 law for injury done him in person, property, or reputation,' are claimed 
 to operate as a guaranty in favor of all persons who might be injured 
 by a county's neglect, that the legislature should never so change the 
 statute as to destroy the liability of such county. In other words, the 
 constitution found a certain liability created by statute resting upon 
 the several counties, and tied the hands of the legislature, so that 
 
40 
 
 such liability should endure as long as the constitution shall remain 
 in force. As a proposition of constitutional law, this contention seems 
 startling, and, although the constitution of many of the states of this 
 Union contain substantially the same provision as section 10, supra, no 
 judicial authority was cited upon the argument in supjjort of it, and 
 I think it may be safely assumed that none exists. * * * At the 
 time of the repeal the plaintiff had no cause of action against Linn 
 County, and her sole cause of complaint is that the repeal of the statute 
 before the injury cut off a cause of action which she otherwise would 
 have had against the county. * * * Vested rights are placed under 
 constitutional protection, and cannot be destroyed by legislation. Not 
 so with those expectancies and possibilities in which the party has 
 no present interest." 
 
 Williams vs. Oalveston (Texas Civil Appeals), 90 S. W. 505, in 
 which the court said: 
 
 "The citizen has no propei-ty right in a rule of law, and, while 
 rights may accrue to him under the operation of a legal rule which 
 becomes vested and cannot be taken away from him by the change of 
 the rule, he cannot be heard to complain if, before such property 
 rights become vested, the rule is so changed that no rights can accrue 
 thereunder." 
 
 SO'ivyer vs. Ry. Co., 108 S. W. (Tex.) 718, involving the constitu- 
 tionality of a statute providing that no action should be brought for 
 personal injuries unless a certain kind of affidavit was served within 
 ninety days, the court saying: 
 
 "Conceding that a cause of action for personal injuries is property, 
 the cause of action, i. e., the property, must exist before one can be 
 deprived of it at all. A statute which abrogates a cause of action for 
 personal injury before such cause of action has arisen or before the 
 injury occurs, or requires certain things to be done by the injui'ed 
 party as conditions precedent to a cause of action, does not deprive the 
 injui'ed party of his property without due process of law. * * * jjj 
 other words, the legislature may create a right of action which never 
 existed before, or abolish one that had before existed, if in doing so it 
 does not affect rights which vested prior thereto. A party injured 
 after the legislature has taken away the right of action for personal 
 injuries can no more complain of it than a party against whom a right 
 of action is given for an injury resulting in death can of such a 
 legislative enactment. For the one i)arty is no more injuriously 
 affected by such legislation than the other. In the one case, what was 
 before actionable ceases to be so; in the other, what was not before 
 actionable becomes so." 
 
 There is a conflict of authority upon the point here under con- 
 sideration among the courts of states having in substance the above 
 quoted provision of the Oregon statute. 
 
 The Maryland constitution contains a like provision. In 1902 the 
 legislature of Maryland enacted a statute along the lines of the pro- 
 posed act (though not so extensive in application) and it was held 
 unconstitutional by the court of Common Pleas in a decision rendered 
 In 1904. The case was not appealed, and upon the rendition of the 
 decision the fund was closed out and operation under the act aban- 
 doned. The court ruled that the act was unconstitutional in respect 
 of the constitutional provision above mentioned, in connection with the 
 jury trial provision of the constitution. 
 
 At the time of the adoption of the constitution of Washington a 
 
41 
 
 statute provided that the common law, so far as not inconsistent with 
 the constitution and laws of the United States or of the state of Wash- 
 ington, nor incompatible with the institutions and condition of society 
 in this state, should be the rule of decision in all the courts of this 
 state. Article 27, section 2, provides that all laws in force in the 
 territory at the time of the adoption of the constitution, not repug- 
 nant to the constitution, should remain in force until they expired 
 by their own limitation or were altered or repealed by the legislature. 
 This seems to be an implied constitutional recognition of the right of 
 the legislature to alter or repeal the common law. 
 
 Considering that the legislature of Washington is not liampered 
 by such a constitutional provision as that of Maryland, and that the 
 weight of authority is clearly in favor of the legislative power in 
 the respect herein presented, it seems entirely safe to conclude that 
 the proposed act is valid in that respect. 
 
 VI. — Non-Application of Jury Trial Provision. 
 
 If this conclusion is correct, it would seem to dispose of any ques- 
 tion arising under the language of Article 1, Section 21, of the con- 
 stitution of Washington: "The right of trial by jury shall i-emain 
 Inviolate." Along the line of that conclusion the constitution is not to 
 be construed as reading that a provision of law previously existing, 
 creating out of certain facts coming into existence in the future a 
 right of action, is to continue unchanged forever as to facts yet to 
 come into existence, but rather that every person, having today or to- 
 morrow a cause of action recognized by existing law, shall have a 
 right to demand a jury trial of his case if the right of a jury trial of 
 such a case existed at the time of the adoption of the constitution; 
 in other words, the constitution provides for jury trial if there is 
 to be a trial. 
 
 The Supreme Court of California, in Koppikus vs. Capitol Com- 
 missioners. 16 Cal. 248, said: "There must be an action at law, as 
 contra-distinguished fi'om a suit in equity and from a special pro- 
 ceeding or a criminal action, and an issue of fact joined therein upon 
 the pleadings before a jury trial can be claimed as a constitutional 
 right." 
 
 See also: 
 
 24 Cyc. 106; 
 
 East Kingston vs. Towle, 48 N. H. 57. 
 
 Under the common law, in an action by an employe against his 
 employer for negligence causing personal injury, the employer had the 
 same right of trial by jury as the employe. The proposed act abolishes 
 the doctrine of negligence in that relation, and provides for a pay- 
 ment of a sum certain to the injured employe. 
 
 The 1910 act of New York did the same thing, except it imposed 
 the liability for the stated amount directly upon the employer, and 
 in the Ives case the employer challenged the validity of the act on 
 the ground that it violated the jury trial provision of the New York 
 constitution. The act was sustained by the court. 
 
42 
 
 VII. — The Fourteenth Amendment. 
 
 The fourteenth amendment to the constitution of the United States: 
 "Nor shall any state deprive any person of life, liberty or property 
 without due process of law, nor deny to any person within its juris- 
 diction the equal protection of the laws," is yet to be considered. If 
 the proposed act does not contravene its provisions, Article 1, Section 
 3, of the constitution of Washington: "No person shall be deprived 
 of life, liberty or property without due process of law," and section 12 : 
 "No law shall be passed granting to any citizen, class of citizens or 
 corporation, other than municipal, privileges or immunities which, 
 upon the same terms, shall not equally belong to all citizens and cor- 
 porations," will not need separate consideration. 
 
 The amendment seems to have four points of possible application 
 here: 
 
 1.— Due Process of Law. 
 
 The pi'oposed act provides for a court review of all disputes arising 
 under it (there are a few exceptions of cases where certain departures 
 in favor of employer or employe from the general rule of right or ob- 
 ligation laid down are submitted to the discretionary action of the 
 department), and it is provided (section 23) that, while the appellate 
 proceeding shall be informal and summary in other respects, the prac- 
 tice in civil cases shall obtain, and in no case shall judgment be pro- 
 nounced without full opportunity to be heard. So far as the court 
 proceedings are concerned, they seem to satisfy the requirements of 
 the amendment according to the rules laid down by the Supreme 
 Court of the United States. 
 
 Mr. Justice White, speaking for a unanimous court, in Louisville, 
 etc., Ry. Go. vs. Schmidt, 177 U. S. 230, said: 
 
 "It is no longer open to contention that the due process clause of 
 the fourteenth amendment to the constitution of the United States 
 does not control mere forms of procedure in state courts or regulate 
 practice therein. All its requirements are complied with provided, in 
 such proceedings which are claimed not to have been due process of 
 law, the person condemned has had sufficient notice and adequate 
 opportunity has been afforded him to defend." 
 
 And again in loiva Central R. R. Co. vs. loioa, 160 U. S. 393: 
 "But it is clear that the fourteenth amendment in no way under- 
 takes to control the power of a state to determine by what process 
 legal rights may be asserted or legal obligations be enforced, provided 
 the method of procedure adopted for these purposes gives reasonable 
 notice and affords fair opportunity to be heard before the issues are 
 decided. * * * It is also equally evident, provided the form sanc- 
 tioned by the state law gives notice and affords an opportunity to be 
 heard, that the mere question of whether it was by a motion or ordinary 
 action in no way renders the proceedings not due process of law." 
 
 The Supreme Court of Washington in State ex rel. Oregon, etc., Co. 
 vs. Railroad Covimission, 52 Wash. 17, said: 
 
 "But it occurs to us that it makes no difference whether it is a 
 proceeding under the forms and with the machinery provided by the 
 wisdom of successive ages, or whether it is under the forms and pro- 
 ceedings provided by this age. Law is a progressive science, and must 
 
43 
 
 necessarily regard the changing conditions of society and of the busi- 
 ness of the country, and the legislature and courts of today ought cer- 
 tainly to be as well qualified to provide machinery for the guidance 
 of the commission as was the law-making power two hundred years 
 ago." 
 
 2. — Liberty of Contract. 
 
 The amendment protects the liberty of contract against invasion 
 by the state, but it is thoroughly established that the liberty of con- 
 tract is not protected by the amendment against the rightful exercise 
 of the police power of the state. 
 
 The principle has been variously expressed, for instance: 
 
 "The fourteenth amendment, however, does not guarantee the citizen 
 the right to make within his state, either directly or indirectly a con- 
 tract, the making whereof is constitutionally forbidden by the state." 
 
 Hooper vs. People, 155 U. S. 648. 
 
 "When it is said that the liberty of the citizen includes freedom to 
 use his faculties in all lawful ways and to earn his living by any law- 
 ful calling, the inquiry remains whether the particular calling or the 
 particular way, brought in question in a given case, is lawful; that is, 
 consistent with such rules of action as have been rightfully prescribed 
 by the state." 
 
 Booth vs. Illinois, 184 U. S. 425. 
 
 "But neither the amendment, broad and comprehensive as it is, nor 
 any other amendment was designed to interfere with the power of the 
 state, sometimes termed its police power, to prescribe regulations to 
 promote the health, peace, morals, education and good order of the 
 people, and to legislate so as to increase the industries of the state, 
 develop its resources, and add to its wealth and prosperity." , 
 
 Barbier vs. Connolly. 113 U. S. 31. 
 
 "It is within the undoubted power of government to restrain some 
 individuals from all contracts, as well as all individuals from some 
 contracts." 
 
 FrisUe vs. U. 8. 157 V- S. 160. 
 
 "This right of contract, however, is subject to certain limitations 
 which the state may lawfully impose in the exercise of its police power." 
 Holden vs. Hardy, 169 U. S. 366. 
 
 The liberty of contract is "subject to the restraints demanded by the 
 safety and welfare of the state." 
 Ry. Co. vs. Paul, 173 U. S. 404. 
 
 "It may be conceded without discussion that a citizen's right to con- 
 tract his or her labor is a valuable property right, which cannot be 
 restricted by the legislature unless such restriction is necessary in the 
 proper exercise of the police power of the state. * * * in the early 
 history of the law, when employments were few and simple, the relative 
 conditions of the citizens and the state were different, and many em- 
 ployments and uses which were then considered inalienable rights have 
 since, from the very necessity of changed conditions, been subjected to 
 legislative control, restriction and restraint. This all flows from the 
 old announcement made by Blackstone that when man enters into 
 society, as a compensation for the protection which society gives to 
 him, iie must yield up some of his natural rights, and, as the respon- 
 sibilities of the government increase, and a greater degree of protection 
 is afforded to the citizen, the recompense is the yielding of more in- 
 dividual rights." 
 
 State vs. Buchanan. 29 Wash. 602. 
 
44 
 
 In many of the decisions of the Supreme Court of the United States 
 hereinbefore cited it is expressly held that for a state to deal by 
 legislation with one or the other of the doctrines of the common law 
 in the premises is not violative of the fourteenth amendment. In the 
 very recent case of Railroad Company vs. Melton. 218 U. S. 36, the 
 court having before it the question of the validity of the Indiana 
 statute abolishing the fellow servant doctrine as to railroad employes, 
 said: "That the fourteenth amendment was not intended to and does 
 not strip the states of the power to exert their lawful police authority 
 is settled and requires no reference to authorities." The fourteenth 
 amendment is a limitation upon the power of the states. The fifth 
 amendment contains a limitation in like words upon the power of 
 Congress. The Supreme Court of the United States has twice ruled 
 that legislation by Congress, modifying the fellow servant, assumed 
 risk and contributory negligence doctrines, in cases of interstate car- 
 riers, is valid. 
 
 Hoivard vs. III. Ry. Co.. 207 U. S. 490; 
 
 El Paso etc. Ry. Co. vs. Gutierrez, 215 U. S. 87. 
 
 Therefore, if the conclusion announced in the fore part of this 
 report is sound, that the proposed act is within the police power of 
 the state, it must follow that it does not contravene the amendment as 
 to the liberty of contract. 
 
 3. — Deprivatiox of Propkkty. 
 A workman's cause or right of action for injury caused to him 
 by the negligence of his employer is property, and within the prohibi- 
 tion of the amendment. State legislation taking away from him such 
 cause or right of action, after it had accrued to him, would, it may be 
 assumed, be in violation of the amendment, though it has been held 
 that a cause of action for tort may be destroyed by legislation after it 
 has become vested, but has not ripened into judgment. Eastman vs. 
 Clackamas. 32 Fed. 24; Bennett vs. Hargus, 1 Neb. 419. But, as has 
 already been pointed out, it is the accrued cause of action which is 
 property within the meaning of the amendment, not the rule of law 
 creating a cause of action in instances to arise in the future. This 
 conclusion is fully sustained by the decisions hereinbefore cited, 
 notably that of the Supreme Court of the United States in Martin vs. 
 Ry. Co.. 203 U. S. 284, sustaining the Pennsylvania statute abolishing 
 the doctrine of respondent superior as to future events, the decision of 
 the Supreme Court of Pennsylvania sustaining the same statute, the 
 quotation hereinbefore set forth from which and from the case of 
 Munn vs. Illinois. 94 U. S. 113, from the text of Judge Cooley, and from 
 the Texas case of Sawyer vs. Ry. Co.. 108 S. W. 718, seem to be de- 
 cisive. To these may be added the decision of the Supreme Court of 
 the United States in Ry. Co. vs. Sowers. 213 U. S. 55, sustaining a 
 New Mexico statute like that of Texas, in which the majority of the 
 court announce the doctrine that it is within the legislative ])Ower 
 conferred by Congress upon the territories "to all rightful subjects 
 Of legislation" to legislate concerning the subject of personal injuries 
 
45 
 
 and to pass laws respecting rights of action of that character, and 
 Justices Holmes and McKenna dissenting from the result that "the 
 territory could have abolished the rights of action altogether if it had 
 seen fit"; and the case of Bennett vs. Hargus, 1 Neb. 419, holding 
 "It is sufficient to say that no respectable authority will be found to 
 the effect that a mere right to sue for a tort is, previous to the com- 
 mencement of a suit, a vested right which the legislature cannot dis- 
 turb." 
 
 4. — Equal Protection of the Law. 
 
 The provision of the amendment relating to the equal protection of 
 the law is not violated by a division of the subjects of legislation into 
 classes, making one rule or law for one class and another rule or law 
 for another class, or making a rule or law for one class and none for 
 another or other classes. Such class legislation is lawful and permis- 
 sible imless the classification is arbitrary or unreasonable. If the court 
 is able to perceive any reasonable ground for any such classification, the 
 validity of the enactment will be sustained. The proposed act would 
 legislate only for the class of work or occupation which is especially 
 dangerous to life and limb, and is therefore not obnoxious to the con- 
 stitution. 
 
 A considerable number of the states have passed laws confined in 
 their operation to railroads, and creating a different rule of respon- 
 sibility for accidents as between them and their workmen than is im- 
 posed in less hazardous occupations. Such statutes have been univer- 
 sally sustained. 
 
 Said the Supreme Court of the United States, in Missouri Pacific Ry. 
 
 Co. vs. Mackey. 127 U. S. 205: 
 
 "But the hazardous character of the business of operating a railway 
 ■would seem to call for special legislation with respect to railroad cor- 
 porations, having for its object the protection of their employes, as well 
 as the safety of the public. The business of other corporations is not 
 subject to similar danger to their employes, and no objection therefore 
 can be made to the legislation on the ground of its making an unjust 
 discrimination. It meets a particular necessity and all railroad corpora- 
 tions are, without distinction, made subject to the same liabilities." 
 
 To the same effect are the following cases: 
 
 Minneapolis etc. Ry. Co. vs. Herrick. 127 U. S. 210; 
 
 Railway Co. vs. Pontius, 157 U. S. 209; 
 
 Callahan vs. Ry. Co., 170 Mo. 473; afl^rmed in 175 U. S. 348; 
 
 Ditherner vs. Ry. Co., 47 Wis. 138; 
 
 Hancock vs. Ry. Co., 124 N. C. 222; 
 
 Thompson vs. Banking Co.. 54 Ga. 509; 
 
 Railway Co. vs. Ivey, 73 Ga. 449; 
 
 Lavalle vs. Ry. Co., 40 Minn. 249; 
 
 Deppe vs. Ry. Co., 36 la. 52; 
 
 Railway Co. vs. Montgomery, 152 Ind. 1; 
 
 Railway Co. vs. Lassiter (Fla.), 50 So. 428; 
 
 State statutes imposing liability upon mine operators for negligence 
 of certain employes have been sustained: 
 
 Wilmington etc. Mining Co. vs. Fulton, 205 U. S. 60; 
 Coal Co. vs. Illinois, 185 U. S. 203. 
 
46 
 
 In Tullis vs. Railway Co., 175 U. S. 348, the same ruling was made 
 upon an Indiana statute making every railroad and other corporation 
 liable to employes for negligence of the corporation or its employes 
 for defective condition of its ways, works, plant, etc. 
 
 The New York statute of 1910 covers a number of hazardous occupa- 
 tions; for instance, bridge work, elevators, hoisting apparatus, scaffold 
 work, tunnels, compressed air work, work with electric currents, with 
 explosives, and steam railroads. In the Ives case the court said: "The 
 classification of dangerous employments for the purposes of the act 
 must be upheld." 
 
 The proposed act covers all employes of employers embraced within 
 Its terms; that is to say, engaged in extra hazai'dous work. Under it 
 the bookkeeper, for instance, in a sawmill would be within the terms of 
 the act. The Iowa and Minnesota cases cited in the last foregoing list of 
 cases so construed the acts as to confine the operation of them to rail- 
 road employes actually engaged in the movement of trains, holding that 
 to otherwise construe the act, and thereby bring within its operation 
 employes of railroads who were not exposed to the extreme hazard of 
 railroading, would be to discriminate between such employes of railways 
 and employes of other employers. Even stronger is the recent case of 
 Chicago, M. & St. P. Ry. Co. vs. Westby (C. C. A.), 178 Fed. 619. 
 
 So it might be urged against the proposed act, that it would dis- 
 criminate between bookkeepers of sawmills and bookkeepers of banks, 
 for instance. The weight of authority appears to be against the afore- 
 said conclusions of the Iowa and Minnesota courts. 
 
 Railway Co. vs. Malton, 218 U. S. 36; 
 Ditberner vs. Ry. Co., supra; 
 Railway Co. vs. Castle, 172 Fed. 841; 
 Pierce vs. Vai7. Diizen. 78 Fed. 693; 
 Hancock vs. Ry. Co.. supra; 
 Thompson vs. Banking Co.. snpra; 
 Railroad Co. vs. Ivey, supi-a. 
 
 The act of Congress of 1906 imposed a new doctrine of liability upon 
 railroad companies in favor of any of their employes for all damages 
 which may result from the negligence of any of its officers, agents or 
 employes, and the act was sustained by the Supreme Court in El Paso, 
 etc., R. R. Co. vs. Guttierrez, 215 U. S. 87. The act of Congress of 1908 
 employs the same language. In the Melton case, 218 U. S. 36, the 
 Supreme Court of the United States ruled against the Iowa and Minne- 
 sota cases above cited in a case involving the Indiana statute abolishing 
 the fellow servant doctrine as to railroad employes, saying: 
 
 "And it is equally settled as the essential result of the elementary 
 doctrine that the equal protection of the law clause does not restrain 
 the normal exercise of governmental power, but only abuse in the 
 exertion of such authority, therefore that clause is not offended against 
 simply because, as the result of the exercise of the power to classify, 
 some inequality may be occasioned. That is to say, as the power to 
 classily is not taken away by the operation of the equal protection of 
 the law clause, a wide scope of legislative discretion may be exerted in 
 classifying without conflicting with the constitutional prohibition." 
 
47 
 
 The Indiana act abolished in part the fellow servant doctrine as to 
 all railroad employes and the decision is rendered, notwithstanding a 
 decision of the Supreme Court of Indiana in Traction Co. vs. Kinney, 
 171 Ind. 612, following the rule of the Iowa and Minnesota cases. How- 
 ever, having in view the contrariety of decisions and remembering that 
 Melton, the injured employe in the Melton case above referred to, was, 
 when injured, engaged in the construction of coal bunkers on the rail- 
 road, whereas the proposed act may cover a wider range of employment 
 than was involved in any of the decided cases, it is provided in section 
 30 of the act that if any workman shall be adjudicated to be outside the 
 lawful scope of the act because of remoteness of his work from the 
 hazard of his employer's work, such adjudication shall not impair the 
 validity of the act in other respects. 
 
 8. — First Aid Fuxn. 
 
 The first aid fund is created by the joint, enforced, contribution 
 of employers and employes. It is designed to provide for the rendition 
 of all necessary medical, surgical and hospital services to Injured work- 
 men, and for compensation to the workman of a stated sum for the 
 first three weeks of disability. It is believed that it will take care of 
 all minor injuries not permanent. 
 
 If the conclusion hereinbefore stated, that it is within the legisla- 
 tive power to compel the employer to contribute to the accident fund — 
 the fund provides for cases of death and permanent disability^it fol- 
 lows that it is within the legislative power to enforce the contribution 
 of the employer's half to the first aid fund. 
 
 No decision has been found touching the question of the legislative 
 power to compel employes to contribute from their wages to such a 
 fund. It is believed to rest firmly upon the same principles as applied 
 to the case of the employer. The employe is engaged, as well as the 
 employer, in conducting works hazardous to the life and limb of all 
 engaged therein. So it seems lawful, as well as just, for the legislature, 
 while placing the major part of the burden upon the employer, as best 
 able to bear it, to place a small portion of it upon the employe. The 
 burden is all upon the industry. 
 
 In 1798 Congress passed an act providing that the master of every 
 coastwise vessel should pay to the collector of customs twenty-five cents 
 per month for each seaman employed, to be paid ultimately into the 
 treasury of the United States, and constitute a fund for the support and 
 maintenance of a marine hospital for the care of disabled seamen, and 
 authorizing the master to deduct the same from the wages of the sea- 
 man. The statute was afterwards extended to certain other vessels and 
 the sum increased to forty cents. The act remained in force for ninety- 
 six years and its validity was never questioned. It has been enforced 
 
48 
 
 by the government for that period of time and its validity impliedly 
 recognized in several decisions of the courts: 
 
 Buckley vs. Broion, Fed. case No. 2092; 
 
 Reed vs. Can field. Fed. case No. 11641; 
 
 Peterson vs. The Chandos, 4 Fed. Rep. G45; 
 
 Holt vs. Cuvimings. 102 Pa. St. 212; 
 
 3 Op. of Atty. Gen. 683; 
 
 13 Op. of Atty. Gen. 330. 
 
 If this feature of the proposed act, or any other feature (except the 
 two main provisions; that is, the creation and application of the acci- 
 dent fund and the abolition of negligence litigation) should be found 
 invalid, they are separable and the act would stand, for it is so pro- 
 vided in section 30. 
 
 9. — The Sphut of the Constitutio;. 
 
 It may be argued that the proposed act would be invalid as violative 
 of the spirit of the constitution. The line of such attack would probably 
 be on the theory that the state under the act would be engaging in the 
 business of accident pr employers' liability insurance, whereas it has 
 been held in Rippe vs. Becker, 56 Minn. 100, that the police power is to 
 restrain a business or occupation in private hands, not a power of the 
 state to itself engage in such business or occupation. See criticism of 
 this decision by Tideman in his work on the police power, page 608, and 
 by the Supreme Court of Wisconsin in State vs. Froelech. 115 Wis. 32. 
 If such contention is not fully answered in the reasoning in the 
 slaughter house cases, 16 Wall. (U. S.) 36, and by the state dispensary 
 cases; State vs. Porterfield, 47 So. Car. 75; State vs. Aiken. 42 So. Car. 
 222; Farmville vs. Walker. 101 Va. 323; Oarsed vs. Greensboro, 126 No. 
 Car. 159; Bennett vs. Swain, 125 No. Car. 468; Sheppard vs. Bowling, 
 127 Ala. 1; Butler vs. Merritt, 113 Ga. 238; Plumb vs. Christie, 103 Ga. 
 686, it ought to be a sufficient answer that in the proposed act the state 
 is not engaging in a business, but only creating and through state 
 officers disbursing funds, to which funds the state contributes nothing, 
 in the administration of the police power by the means deemed by the 
 legislature most effective. There is no possibility of a revenue or profit 
 to the state and the state is not insuring anybody or anything. 
 
 It should be borne in mind that the conclusions stated are not based 
 upon any precedent bearing directly on the subject matter of the pro- 
 posed act, but upon the theory that, reasoning by analogy from prece- 
 dents nearest in ])oint, the courts would sustain such an enactment 
 made by the legislature of the State of Washington. 
 
 Seattle, Washington, December 30, 1910. 
 
 Respectfully submitted, 
 
 HAROLD PRESTON. 
 
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