mmm^: .!||gi:|Sg,::L::^iNI:::,;:::):;i-|;f|;:| :;i|y;l;;iiiiiiiiiiiit.,Acc.i DENTS GIFT OF / ^■o^»^^^'ut'9'i^-e'7^Ad o^ ■tzt'm^t^^t t ■c/'- •-•/ unions. pressure, for example. I do not mean that a "closed shop" should suggest immunity or an "open" one liability, but simply that labor conditions be given circumstantial weight. Thus, in Farmer v. Kearney it appeared that a Farmer v. w^orkman whose negligence caused an accident was by trade union custom practically forced upon the employer. The court held that a statute making the employer liable for a vice-principaFs negligence did not apply, say- ing: "When the workmen delegate to a labor organiza- tion which they have joined (and to others in privity with their own organization) the right of selection and super- intendence, they agree to accept the membership of their fellow workmen in those organizations, and the action of i«Wilmin^on Min. Co. v, Fulton, 205 U. S., 60; Henrietta Coal Co. V. Martin, 221 111., 460. i^Durkin v. Coal Co., 171 Pa., 193; see also Williams v. Coal Co., 44 W. Va., 599. 8 those organizations, ipso facto, as a good and sufficient guaranty to them for their individual safety and protec- tion, so far as the contractor is concerned." ^^ But while a strict and sweeping application of the fel- low servant rule has, in certain forms of modern indus- try, brought injustices not foreseen when it was first de- clared, the principle is not essentially unjust. If, for ex- ample, a laundress employs two helpers and one be in- jured through the other's fault, the common law, in refus- ing to hold her liable, averts a crushing and unmerited burden. Mr. Augustine BirrelFs gibe at the rule "Abinger planted it, Alderson watered it and the Devil gave it in- crease," epitomizes a now widely held opinion, but even in England the rule still stands in common law actions, ex- cept when the servant is a vice-principal. And Chief Judge Parker of New York has referred to a Pennsylvania de- cision already cited^^ as intimating that, in this country, the rule could not be entirely swept away, though, person- ally, he was of a different opinion.^o Qualification of the fellow servant rule, when con- tributory negligence is absent is, relatively, a conservative step in point of law, for, after all, the master, in theory of law, selects the servants even when he employs so many as to forbid actual selection on his part, and to hold him responsible for their delinquencies is but making him liable for all negligence in the conduct of industry not attributable to the victims themselves. And it is also relatively unimportant in point of fact, for the percentage of accidents attributable to fellow servants is not large — indeed, the New York Employers' Liability Commission concludes that ^'accidents by fault of a fellow servant are comparatively few."^^ 18115 La., 722. i^National Protective Ass'n v. Cumming, 170 N. Y., 324. 20Durkin V. Coal Co., 171 Pa., 193. ^iReport, p. 67. See also infra, p. 15. 9 Unquestionably the legislature may ordain that Negligence, "all questions of negligence and contributory negligence shall be left to the jury," and so also the question of as- sumption of risk. For there is here no attempt to take away any of the common law defences. There is simply a declaration that the jury may estimate their weight in view of all the circumstances. As yet there has been no attempt expressly to abolish the defence of contributory negligence, but the Supreme Hoa;See p. 126. 126 statute, but generally implied by absence of statutory prohibition. As a matter of fact, practically all corporations likely to be embraced in a compensation law are able to do business anywhere, and are not likely to be seriously prejudiced. Corporations whose business requires the acquisition of a local charter become for the purpose of a compensation law local corporations. As to the others, beyond the requirement of security for compensation when this would be reasonable in the case of individuals, it is not perceived how they could be subjected to sub- stantial discrimination. Certainly no greater compensa- tion could be exacted from them, if only for the reason that this would unlawfully prefer one class of workmen over another. THE COMPENSATION RATE. An initial compensation law will probably select cer- tain industries whose hazards are widely advertised, and whose workmen belong to influential trade unions. As in these industries will be found many establish- ments representing large concentrations of capital a markedly liberal compensation may be advocated. But Initial rate. ^^ should be clcarly understood that an initial rate must be fixed, not only in regard to all the establishments af- fected, but in anticipation of the ultimate extension of the scheme to industries in general, if not even to do- mestic service, as in Great Britain. For example, accidents to farm hands attract but little attention. Few States, if any, require them to be reported. Yet agriculture is wholly, or on its mechanical side, cov- ered in important foreign systems,^ ^^ and should not be permanently ignored here. Indeed, the Wisconsin Labor Bureau has already made some inquiry into accidents in agriculture, and reports for 1907, 293 accidents to farm i»iSee p. 17. 127 hands, and 684 to independent farmers. This means that agricultural employment shows 977 casualties — ranking in respect of mere numbers next to railway employment with 1,305.^»2 If to-day the railroad company be obliged to compen- sate the brakeman, to-morrow the farmer may have to do the like for his laborer.^ ^^ And the company and the farmer will have to pay on the same basis for one of the fixed points of compensation schemes is that they shall operate equally and uniformly in respect of all workmen included, and not unequally and discriminately according to the occupation or financial position of the employer.^ ^* The history of pension legislation teaches that if there be any alteration in the original rate we should expect an increase rather than a reduction, so on all accounts we are well advised that an initial rate should, as a matter of Moderate policy, be moderate. But a moderate rate is not only commended by policy. It is dictated by the law of the constitution which forbids spoliation under forms of law. If the master can be made responsible for injuries be- yond his fault his burden must be, at least, a reasonable and not an exorbitant one. Now we have shown that the compensation rate must be uniform for all workmen, in order to assure to every one the equal protection of the laws. This quality of benefit for workmen involves an inequality of burden for employers, who, rich and poor alike, must pay the same proportional rate. And an unequal incidence of burden may occur in other ways. A, employing fifty workmen in a dangerous trade, is subject to a far heavier risk at $2,000 death compensation than B, who employs a thousand in a safe one, would incur at $4,000. C, with a dozen plants, i»2Rep. Wisconsin Bureau of Labor, 1908, p. 24. "3See p. 100. "*See p. 111. 128 might weather a catastrophe, whose resulting liabilities would bankrupt D, were his single plant destroyed. While I do not assert that the unavoidable inequality of burden would necessarily amount to a denial of "equal protection/' and thus block any comprehensive scheme, I do insist that a compensation figure based upon the ability of well-to-do employers, or of great industries, would work an unlawful discrimination against their weaker associates. All employers would not "be treated alike under substantially similar conditions." The "moderate" rate may be broadly described as one which each and every industry or employer within the actual or the potential purview of a compensation scheme may be lawfully required to bear — a rate imposed on the railway company to-day must be one which can later be laid upon the small manufacturer. GENERAL CONCLUSIONS AS TO LEGISLATIVE POWER IN RESPECT OF COMPULSORY COMPENSATION. Absolute Dismissing state accident insurance as not, at present, in question, and considering compensation at the em- ployer's charge, I am of the opinion that he cannot be affected with an absolute liability and a fixed indemnity for all industrial accidents. If the courts shall decide otherwise (and I remark in passing that a denial of legislative power in a few States would tend to check its application to competitive industries in neigh- bor States), they must, I think, enunciate a new principle broad enough to draw contributions from workmen, if this shall be expedient. If the employer may be required to help the workman, the workman may be required to help himself, and so far as the cost is shifted to the public, the workman is as likely to be recouped by higher wages as is the employer by higher prices. Assuming for the sake of argument that the principle of compulsory compensation shall be substantially af- firmed we pass to several ancillary matters. 129 A compulsory rule need not be applied immediately, General or ever, to all employments; but it must be, potentially, applicable to all. No employment can plead constitutional exemption because of its relative freedom from danger — the "dangerous trades" are not alone subject to the obliga- tion. No employer can plead exemption because of his pettiness — the obligation is imposable upon rich and poor alike. To assure the "equal protection of the laws,'^ the Equality. rule must be applied impartially, and while this man- date allows reasonable classification respecting the in- clusion and omission of employments, it exacts an uni- form basis for computing compensation, if only that no set of workmen shall be arbitrarily preferred above an- other — that is to say, the locomotive engineer, if the basis is the wage scale, must not be paid at a higher rate than the farmhand, though his higher wages will give him a larger sum ; if specific sums be prescribed for specific in- juries, his lost leg cannot be valued higher than the farm- hand's. The compensation rate must be moderate and not Moderate confiscatory, and since all employers may ultimately be '^^ ^' gathered in, and since the rate basis must be uniform, it is perceived that the incidence of an initial burden should be estimated in view of its potential imposition upon all sorts and conditions of employers, and not sim- ply by the standing of those at first affected. In planning the administration of a compensation Association- law we must reject, as unconstitutional, the compulsory '''^"'"^°^®' association of employers. Instead of the collective re- sponsibility of the German system, we must impose the individual responsibility of the British system, though we should improve upon this by allowing responsibility to 130 be shifted by insuring in an approved company or volun- tary association, as is the rule in France. Arbitration. Complex administra- tion. There is reason to fear that in many, if not most, of our States, the summary procedure so essential to the useful operation of a compensation law will be embar- assed by an indefeasible right to trial by jury, with its inevitable delay, expense and uncertainty. The simple motive of a compulsory compensation scheme cannot be simply effectuated. Complexity is its dominant note, and it should be observed in passing that the New York and, more markedly, the Montana and the Maryland legislatures have, in straining for simplicity of procedure, but drawn attention to the insistent com- plexities they would fain ignore. Every one of the many accidents covered in a separate "case," and while each is in many ways happily differ- entiated from a damage suit, they form collectively a vast congeries of small affairs which must be administered with judgment and precision. Each accident must be proven and, what is often a matter for medical experts, its degree established. The compensation awarded in due form ought, in many cases, to be thereafter doled out to the beneficiary, and a change in condition for better or worse may require the amount to be lowered or raised. In short the simplest compensation scheme of real value implies a particular attention to petty details and, as we cannot adopt the German plan of casting these upon associated employers, we must invoke a substantial measure of official intervention. Review. Reviewing the foregoing points, we perceive that even if the legislature may lawfully decree the naked prin- ciple of compulsory compensation, the practice is likely to be sufficiently embarrassed by constitutional re- 181 straints and directions to preclude the adoption of a thoroughly satisfactory scheme. IV. VOLUNTARY COMPENSATION. GOVERNMENT ESTABLISHMENTS. An American government may grant accident com- pensation to its servants. In so doing it acts like a private employer who voluntarily assumes a similar charge in respect of his employees. And on this line Con- gress lately passed a law providing that federal artisans or laborers, injured in the course of their work through no negligence or misconduct of their own, shall receive reg- ular pay for such part of a year as incapacity shall last, and in case of fatality the pay shall go to the depend- ents.^ »« Government aid to its employees is too remote from our subject to receive extended consideration here, but one point should be noticed. The recent attempt of the General Confederation of Labor to paralyze France by a strike of public servants warns us against any scheme of aid which, even if it should include employees' con- tributions, shall give to a public servant any ground for asserting anything like a property right in his office. In this relation the New York State Civil Service Commis- sion, in its report for 1910, says : "Any property right in a fund attached to the public service would tend unrea- sonably to hamper that power [to remove for reasonable cause], and to put the administration of the public service at the mercy of organized public servants."^^^ PRIVATE ESTABLISHMENTS. If the compulsory principle of the foreign compensa- tion schemes be, as I maintain, repugnant to our institu- lo'May 30, 1908. i»«P. 31. 182 tions we may, nevertheless, accomplish, by voluntary methods, a substantial measure of systematic compensa- tion. Insurance companies, etc. Private organizations — companies, societies and unions — may yet develop the will and the ability to proffer a sound and cheap accident insurance, but we leave these organizations to define their position in their own time and way. Our concern is with systematic compensation at the employer's instance. Employers' plans. Voluntary accident relief has already made fair prog- ress. Besides a widespread proffer of medical and hos- pital service to injured workmen we mark a number of schemes founded by employers to provide accident in- demnity alone or in conjunction with sickness or old age relief. Some involve workmen's contributions. In others the employer bears the whole cost, and among these tlie most notable of the purely accident schemes are those recently formulated by the Steel Corporation and the International Harvester Company. To the objection that few employers are likely to make a free-will offering to their employees I reply that the voluntary method I have in mind would not be inspired by philanthropy though by no means lacking the humane spirit. It would be grounded in the proven fact that there are industries and establishments which can be made to bear a reasonable share of the cost of their ac- cidents with benefit to all concerned. It would be facili- tated by the marked ability of the modern business organ- ization to co-ordinate and administer a great number of petty affairs. Most significantly, the legislature may, by a tactful ex- ercise of power over the conduct and effect of litigation, persuade many employers to the voluntary method. 133 While the legislature cannot, in my opinion, strip the Legislative master of all defences to a suit for damages^ ^^ it may so ment. narrow them as to encourage the bringing of suits with their inevitable delays, uncertainties, irritations and waste. ^^^ The mere holding of this power in leash suggests a special motive for employers to volunteer compensation schemes in the hope thereby of discouraging its exercise, but assuming that the legislature should wish actively to encourage such schemes these questions arise. Shall it attempt to drive employers to voluntary compensation by laying heavy liabilities by way of suit upon those who shall not adopt it? Or shall it persuade them by lighten- ing the liability of those who shall adopt it? The New York legislature is experimenting with the n. y. Act first alternative by a law framed on the main lines of a bill presented by the Employer's Liability Commission as a "voluntary" compensation scheme.^^^ The act provides that where an employer and an em- ployee shall have agreed to a plan whereby the former shall pay scheduled compensation for all accidents ex- cepting those due to the victim's "serious and wilful mis- conduct" (that is to say the plan prescribed by the "com- pulsory" compensation law) the latter shall have no other remedy save the action for compensation therein provided. Where the plan is not thus agreed to the em- ployer remains subject to all common law and statutory liabilities. These last are somewhat enlarged in this ex- perimental act and we may assume that the greater the enlargement the more strongly would the employer be pressed to promote a voluntary plan. The New York act does not, from the employer's standpoint, contemplate a really "voluntary" plan for is^See p. 10. losSee pp. 7-9. 10^1910, c. 352. 134 none may be even started without the workman^s con- sent. More importantly an agreement made may be broken by the workman. While the workman is, in sign- ing an agreement, supposed to waive his right of action, except in case of the master^s gross fault, he may, unless he has actually accepted compensation, maintain an ac- tion at will, but the commencement of action bars him from all benefit under the plan. The upshot is that an employer may, if the workman consents, promote, at his own cost, a compensation plan ; V then, if an injured workman does not recall his consent by suing for damages, the employer may acquit himself by paying compensation. The Act has been in effect over two months but thus far it seems to be practically a dead letter. A dead letter also is a recent law of Massachusetts authorizing employers to formulate workmen's compen- sation plans subject to the approval of the State Board of Conciliation and Arbitration.^oo it is provided that compensation shall be based upon a percentage of average earnings and shall be paid without reference to liability at common law or under the employers' liability act. While assent to the plan shall not be made a condition of employment, the act says that a workman may, by sign- ing an agreement, release the employer from other lia- bility for one year, but, as the release is voidable, the act offers hardly more than an official stamp upon an ar- rangement which may be made privately. Promotion of Voluutary compensation may, I believe, be substan- meufod.^^ tially promoted if the legislature shall discard the idea of threatening employers with more litigation if they re- ject it and hold out, instead, the promise of less litigation if they embrace it. And we derive the principle of per- suasive legislation from a rule embodied in the best of the foreign laws — the master who is bound to systematic 2001909. c. 489. 185 compensation is relieved from all liability in suit except when the accident is due to his culpable act or neglect.^^^* This is the complement of the general rule that a work- man shall not have compensation for an accident due to his wilful act. In other words, as the workman is denied compensation only when his fault is conspicuous so he should get super-compensation — damages — only when the master's fault is conspicuous. The absolute fairness of this position is evident to all who are not bemused by the notion that continued sub- jection to damage suits somehow tends to make the mas- ter more careful and somehow maintains the dignity of the workman, but such persons have really no business to advocate systematic compensation at all, for if this is not better than the lottery of litigation it should be re- jected. If it is better it should discourage litigation except when public policy commends this for the punish- ing of culpable masters. As the legislature may restrict a master's defences to an action for damages provided it shall not leave him substantially defenceless^^^ so it may enlarge his defences provided it shall not make him substantially immune. In this enlargement we find the basis of a persuasive law. Let the legislature declare that an employer who has, by a proper plan, obligated himself to pay compensation for all accidents shall be liable in damages only when an accident is the result of his culpable act or neglect, and that the mere institution of a suit shall bar all claim to compensation. This declaration should so discourage suits in all ex- cept flagrant cases as to offer a strong inducement for the voluntary plan. Conceding that this plan would in its best showing leave out a fraction of workmen whom compulsion would have covered (if I have rightly estimated the inducement 2ooaSee p. 24. 2oiSee p. 10. 136 the fraction would not be large), the community might well be gratified with a great achievement, and the frac- tion would be no worse off than the tens of thousands of emplo^^ees who are not, as a rule, included in current compulsory proposals. Advantage of Evcu if a legislature shall be free to compel systematic method. compensation, it should prefer the voluntary method which, with compulsory power in reserve, might be more widely commended to employers. For, all things con- sidered, it will appear that this method is the better one. It will be objected that compulsion would gather in more employers than would persuasion, even with the threat of force behind it; but there is every reason to believe that a successful initiation of the voluntary method would promote its extension especially among the so-called "dangerous trades,'^ which are the con- spicuous objects of systematic compensation. It will be objected that employers would accord a lower compensation than the state would impose ; but the voluntary rates must conform to a standard approved by the public authorities. This standard would require reasonable compensation as an invariable but, as we shall presently see, not necessarily the only factor in a scheme. We may concede, however, that did these objections really dominate the whole problem, a legislature, had it the power of choice, might choose compulsion, but they are outweighed by the positive advantages of the vol- untary method. Among the industries commonly suggested for sys- tematic compensation, some are located in all the States, others in many of them, and a number of single establish- ments operate in several States. For these the volun- tary method promises, in various ways, a better oppor- tunity than the compulsory. It is, manifestly, desirable that an industry, and es- i 13T pecially a single establishmeiit, shall not be subjected to divers compensation schemes in divers jurisdictions if only for the reason that diversity must increase the dif- ficulties and the cost of administration. But uniform schemes as widely effective as industrial conditions would commend, were they allowed free play, would be nar- rowed or blocked by an extensive adoption of compul- sory schemes among the States. For, even assuming a wider agreement on cardinal points than is likely to obtain, the remaining disagreements coupled with inevi- table variations in matters of detail would be sufficiently vexatious. While uniformity would not be perfectly assured by the voluntary method it would be greatly facilitated. The very simplicity of the basic law I have suggested — the release of the employer from all liability in damages ex- cept in case of his culpable negligence — should commend its enactment in the several States, and, while there would be more room for differences in respect of the standards for a voluntary system, these should be so simple in comparison with the provisions of a compulsory law as to render a wide uniformity attainable. All voluntary plans being held to the cardinal re- Development *^ ^ ° of voluntary quirement of reasonable compensation, each may, from method. this point, be developed according to the best interests of employers and employees in the several industries or in particular establishments. Here an employer will present a plan of his own devising; there employer and employees may agree upon one embodying special and mutuiall}^ acceptable conditions. In short, there will be a useful freedom of choice; and in no specific direction will this freedom be more advantageous than in facilitating employers' associations. Under a voluntary regime employers, whom the legis- lature cannot compel to unite in associations,^^^ ^m j^g^yg 202See p. 107. 188 for associated effort not only a better choice of means, but a broader field of action than a compulsory regime would afford. For the latter will tend to divide and cramp effort by state lines, while the former should encourage the operation of associations over whatever area con- venience shall dictate. In reviewing the foreign laws I gave the largest space to the German employers' associations for the very pur- pose of emphasizing the main features of a scheme whose principle should be widely adopted because of its broad distribution of cost and its service in the matter of safety regulations. This encouragement to associated effort of broad range is, in my judgment, one of the strongest arguments for the voluntary method. Pensions- The frccdom of action assured by the voluntary method is likely to be of special utility in view of a ris- ing interest in workmen's sick benefits and old age pen- sions. Influenced partly by the admirable workings of existing benefit and pension systems and partly by for- eign social insurance schemes, there is a growing impres- sion that accident has been over-emphasized — that the greater, though less tragic, misfortunes of sickness, in- validity and superannuation should be also put in the way of systematic relief. Without discussing the state's ability to institute general benefit and pension schemes wholly or partly at the public charge and considering these as connected with particular industries or establishments, it will, I think, be agreed that neither master or workman can be forced to maintain them. Such schemes must be purely volun- tary and, though master and workmen might be willing to contribute to each in agreed proportions, the sickness benefit will, broadly speaking, be largely the concern of the workman because its moving cause affects him so sharply while the master may assume the larger interest 139 in the pension because it tends to encourage long and efficient service. Now, the combining of accident, sickness and super- annuation relief under one general system obviously makes for homogenous and cheap administration, and in this relation we remark the co-ordination of these things in the new Hungarian law. It would, however, be difficult, to say the least, to combine a compulsory acci- dent scheme with voluntary sickness and pension plans. Indeed, it is worth serious consideration whether a com- pulsory compensation law would not only discourage the institution of new plans but affect existing ones. On the other hand a voluntary compensation scheme could be administered with sick relief and pensions with advan- tage to all concerned. A compulsory scheme requires an intimate participa- tion by courts, commissions or other public bodies, which means more red tape, delay and expense than under the voluntary method. This needs from the government only recognition and supervision. For the rest it assures the handling of a complicated business matter by a busi- ness organization — an assurance quite as valuable from a social, as it is from a business standpoint, for every voluntary arrangement by employer and employee equit- able in its nature and executed in good faith improves their relations. 140 GENEEAL CONCLUSIONS. The number of industrial accidents in the United States and the resulting loss to victims and their depend- ents are sufficiently serious to demand reasonable meas- ures to lessen the one and — special concern of this brief — to mitigate the other. Foreign experience demonstrates the advantage of moderate compensation systematically given by em- ployers to many victims over damages wrested from them by a few. Foreign experience demonstrates the intrinsic com- plexities of a workmen's accident compensation scheme and its relation to other industrial problems — notably the greater problems of sickness and unemployment. Foreign experience demonstrates that systematic com- pensation does not, to say the least, tend to reduce the number of accidents, and that the cost, while generally on the increase, is not as yet a noticeable burden on em- ployers as a whole, especially if it be reasonably distrib- uted by means of insurance, of which the German asso- ciations afford the best type. Foreign experience demonstrates by persuasive exam- ple the need of deliberation in formulating a scheme. And each country, while scrutinizing its neighbors' schemes and adopting or adapting this or that feature, must finally square its own with local habits and institutions. Compulsory compensation is the rule abroad and, assuming for the moment that it can be constitutionally enforced here, we emphasize several features essential to a just scheme. A compensation rate that shall be both fair to the workmen and reasonable, not only for the employing classes embraced in an initial scheme, but for other and 141 perhaps financially weaker classes, to whom, in justice to their workmen, its extension may be expedient. A speedy settlement of disputed claims. A framing of the statute that will discourage malinger- ing, and a medical service that will deal adequately with disputes respecting the fact or degree of injury. An opportunity for insurance so that the workman shall be assured of his just dues and the master enabled to distribute his risk. And insurance by the master in an approved institution should shift his obligation. Coming to the law of the constitution, and consider- ing first the question of jurisdiction, I am of the opinion that the Federal Government is quite as incompetent to enact a compensation scheme for any class of workmen Avithin a State — excepting, of course, federal employees^ — as it would be to undertake local poor relief. And, con- stitutional obstacles apart, federal intervention could only make mischief — a mischief already done to a degree by the federal Employers' Liability Law. Workmen's compensation is practically as well as legally a matter for the States so far as state territory is concerned. Considering the constitutional powers of the States in respect of a compulsory compensation scheme, it ap- pears that certainly in some States, and perhaps in many if not all others, a requirement of trial by jury will inject the slow and costly process of suits at law into a scheme where a speedy and cheap procedure is of prime importance. Furthermore, each State, being forbidden to deny any- one "the equal protection of the laws,'' is obliged to adopt for all workmen affected a uniform basis of compensation ; and the rule that classifications shall be reasonable and not arbitrary, while not a bar to a working scheme, will require most skillful drafting in order to respect its obligation. 142 That constitutional requirements will at least em- barrass a compulsory compensation scheme is generally conceded. More importantly, there is, even among- intelli- gent sympatliizers, a widespread uncertainty and unbelief as to the validity of its A^ery basis — masters' responsi- bility for injury regardless of fault. Considering this vital question, I am of the opinion tliat, from a constitutional standpoint, a master's respon- sibility can no more be made to depend on the nature of his industry than on the size of his bank account. Whether the employment be safe, hazardous or extra haz- ardous, injury to the servant is the vital fact — the in- evitable point of departure for all legal reasoning. To hold otherwise would give a preference abhorrent to our rule of equality before the law. We cannot say that one maimed by a sc^'the is constitutionaily barred from a relief that may be lawfully given one maimed by a locomotive or — a more glaring prejudice already con- templated — to one injured while merely employed by a concern operating locomotives. The fact that the man with the scythe is not "organized'' may account for his not demanding relief, but it does not affect his position in law. I am far from maintaining that a scheme must at once embrace all servants. I do not anticipate its ultimate extension to all as inevitable, but certainly its principle must be potentially comprehensive. In short, if the principle of compulsory compensation is constitu- tional it must, potentially, be applicable for the benefit of any servant and imposable upon any master. But I am of the opinion that the principle is uncon- stitutional — that an American legislature cannot law- fully require a master to pay a fixed compensation to a servant injured in his employ without regard to the cause of injury. If compulsory compensation is barred by constitu- tional limitation a large measure of systematic compen- 143 satioii may be attained by voluntary methods. Indeed, even if compulsion be lawful, the voluntary method is preferable. Our faculty of business organization would thus be employed in a most beneficial kind, of social work. Under this method alone could we utilize to the best advantage the principle of that admirable foreign invention — the German employers' association. Legislatures should persuade to this course by relieving employers who shall adopt satisfactory methods from being mulcted in damages for accidents except Avhere they are grossly in fault. This assurance should greatly promote the voluntary method which is already gaining ground tlirough its own merits. It is demonstrable — nay, it is demonstrated abroad — that modern business organization is competent to administer broad compensation systems witli benefit to all concerned, especially by distributing the responsibility and the risk by means of association. Whatever the ultimate disposition of the constitu- tional problems, the plans of the States that are seriously considering compulsory compensation should show a rea- sonable uniformity, of which there is no sign at present, and a more careful drafting than is disclosed in the sev- eral laws already enacted. Carman F. Randolph. New York, November, 1910. t904E] RETURN TO the circulation desk of any University of California Library or to the NORTHERN REGIONAL LIBRARY FACILITY BIdg. 400, Richmond Field Station University of California Richmond, CA 94804-4698 ALL BOOKS MAY BE RECALLED AFTER 7 DAYS 2-month loans may be renewed by calling (415) 642-6753 1-year loans may be recharged by bringing books to NRLF Renewals and recharges may be made 4 days prior to due date DUE AS STAMPED BELOW MAY 2 1992 APR 6 1994 I.Ky OJ04 239414 /^I} 7S/4-