Page:The Green Bag (1889–1914), Volume 18.pdf/236

 THE ABUSE OF PERSONAL INJURY LITIGATION shall be liable for one half of the damages sustained by such injury or death. But liability of the employer, town, city, etc., -ceases under the provisions of the act, if said employer, town, city, etc., shall pay certain annual sums into the hands of the State Insurance Commissioner in monthly installments; coal and clay mining employ ers pay $1.80 for each person employed, steam railroads pay the annual sum of $3 for each employee residing in this state; street railway or trolley road the annual sum of 60 cents for each employee. Town, city, county, etc., to pay such sum for each employee as the insurance commissioner shall adjudge necessary to insure each employee, in the sum of $1000, in event of death, con sidering the occupation of trade risk in volved, and this amount may be deducted from wages of the employees to the extent of one half. Those liable under this act cannot take advantage of it unless they on the first Monday of each month make a re port under oath to the insurance commis sioner, stating the number of persons em ployed, and pay the monthly installments; and it is unlawful to make any contract waiving or avoiding this act. The insurance commissioner is to be cus todian of the fund, so raised, and in case of death of employee insured under the act, to pay to his representatives or adminis trator the sum of $1000. The insurance commissioner is to make annual report to governor of the state, and shall have plenary power to determine all disputed cases which may arise in the ad ministration and to regulate the rates or premiums, in order to preserve the fund and pay the death claims. His compensa tion is one per cent of the receipts of said fund. If a party, subject to provisions of this act, shall consider that he, they, or it are making better provisions on the whole for the workman employed, either by way of payments in case of death, injury, sickness, or old age, or all combined, and are con

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tributing more in such manner than he, they, or it would be obliged to do under this act, then said party may upon application to the insurance commissioner be absolutely released and exonerated from all liability under this act. The insurance commis sioner has power to act in this respect and to give a release, which shall be recognized in our courts. From information obtained I understand that three corporations in this state took the benefit of the Act, and when one of them was sued the act was pleaded in bar of the plaintiff's right to recover, and upon demurrer filed to this plea the court of original jurisdiction held the act uncon stitutional and void in the following words : "The act provided for the payment of the death benefit in two classes of cases in which there was previously no right of action, viz: where the death resulted from the negligence of a fellow servant, and where the deceased had by his own negligence directly contributed to his death. But for the handling and disbursement of this entire fund "plenary power" was lodged in the hands of the insurance commissioner, thus investing him with judicial or quasi judicial powers, and that without any provision for a trial by a jury or any right of appeal from his conclusions. Had the act stopped here it might well have been argued that inas much as it provided for a fund for the bene fit of certain widows and orphans, who would otherwise be remediless, it was within the power of the legislature to place the admin istration of that fund in the hands of such officials as it might see fit. But the act did not stop with the provisions already referred to but also embraced cases where the death had been caused by the negligence of the employer, cases where there would be a clear right of action in the courts under the ex isting law. It also enacted that the em ployers who made the payments provided in the act, should, by such payments, be exempted from further liability. The effect of the act was, therefore, not onlv to vest in the insurance commissioner