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 8b

CONSTITUTIONAL

THE GREEN BAG

ASPECTS

OF

EMPLOYERS'

LIABILITY

LEGISLATION By Ernst Freund THE subject of employers' liability bids fair to remain before our legislative bodies until at least the standard of the English Workmen's Compensation Act of 1897 shall have been approximately reached. In the meanwhile, the example of Germany and of other countries of continental Europe will keep before the public mind compul sory insurance as the ultimate solution of the problem of protection against accident. For this solution we are certainly not ready. For it is difficult to conceive of a legal requirement to contribute to an insurance fund that would be practically or consti tutionally justifiable without covering a territory at least coextensive with the ordinary range of the migration of work men. Insurance in other words must be, as it is in other countries, national; but national legislation is in America for the present obviously impossible. The whole subject of compulsory insurance must there fore be relegated to a somewhat remote future. Even the adoption of the principle of the English legislation will involve a wide departure from the common law, and as such, like any other radical innovation, will have to justify itself as being conformable to constitutional limitations. The require ment of due process has practically come to mean that the legislature may enact noth ing that is at variance with elementary principles of justice. It requires consider able care to adjust a new idea in legislation to these principles — more care than our methods of statutory enactment are sure to warrant. The new plan may appear plausi ble enough as an abstract proposition, while its elaboration in terms of a statute may reveal serious flaws and perhaps enough of injustice to invite judicial condemnation.

It is therefore an advantage that the ques tion of the validity of employers' liability of a very advanced type can be discussed on the basis of a bill which speaks with some degree of authority. In pursuance of a resolve of the legisla ture of Massachusetts of 1903, a committee was appointed to examine and consider the laws concerning the legal relations between employers and employees. This committee embodied in its report, dated January, 1904, a bill, which is based in its main features upon the English act of 1897. This bill was introduced in the sessions of 1904 and 1905, but failed to pass. The bill makes every employer belonging to one of the classes specified by it, liable for any personal injury happening to an employee while performing duties growing out of or incidental to his employment, unless the injury be due to the employee's own wilful or fraudulent misconduct. The employment must be on, or in, or about a railroad, a street railway, a factory, a work shop, a warehouse, a mine, a quarry, engi neering work, or any building which is being constructed, repaired, altered, or improved by means of a scaffolding, temporary stag ing or ladder, or being demolished, or on which machinery driven by steam, water, or other mechanical power is being used for the purpose of the construction, repair, or demolition thereof. The act provides for payment of lump sums in case of death, and for weekly payments in case of total or partial incapacity. Maximum amounts are fixed, and the weekly payments are subject to review from time to time. All- questions arising under the act as to liability to pay, or amount or duration of compensation, are to be settled by arbitration. The employee has his option to proceed independently of