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The Green Bag

the fourth proposition — the right of trial by jury — is not settled by this decision and should not be so regarded." And then adds: "Upon the fourth prop osition, therefore, I reserve my opin ion until such time as its expression will have the force of law." Just how far the legislature may go in depriving a person of a jury trial it is unnecessary to determine. All that need be said is that from an examina tion of these decisions it is evident that the validity of workmen's compensation acts does not turn on that point. The more difficult question then arises: Does such legislation deprive a person of property without due process of law? It is here that a difference of opinion exists. A distinction must be drawn between those compensation acts which are compulsory and those which are optional. The non-compulsory stat utes make it elective with employers and employees whether they will accept or not, but make it decidedly more ad vantageous for them to come under the compensation provisions than to rely on an action at law, for employers who do not accept are deprived of more or less of their common law defenses, and employees who do not accept are com pelled to rely entirely upon their com mon law causes of action subject to the common law defenses of the employer. It is contended that while such acts are nominally optional, nevertheless the provisions are such as to be practically coercive upon employers and employees to accept them, but the courts of last resort of all the various states which have so far passed on the validity of such acts have held them to be constitutional. [In re Opinion of Justices, 96 N. E. 308 (Mass.); Borgnis v. Falk Co. (Wis.), 133 N. W. 209; Cunningham v. North western Improvement Co. (Mont.), 119 Pac. 554; State ex rel. v. Creamer (Ohio),

97 N. E. 602.] An optional statute of Maryland (Md. Acts of Assembly, 1902, Ch. 139) was declared unconstitutional on April 28, 1904, by the Court of Com mon Pleas of Baltimore City in the case of Andrew J. Franklin v. The United Railways and Electric Co. of Baltimore. This Maryland law, however, pro vided for the indemnification of only those injuries resulting in death, and a workman coming under the provisions of the act, who was seriously but not fatally injured, had no claim upon the insurance fund, and furthermore he was deprived of his right of action even if his injury was caused by his employer's negligence. This case, moreover, was never carried to the Court of Appeals, but the State Insurance Commissioner, who administered the law, acquiesced in the decision of the lower court and notified the Governor in a letter dated May 10, 1904, that he had closed the accounts of the fund. Since this Maryland case was never before a superior court, and as has been pointed out, the statute in question was peculiarly faulty, it may safely be said that by the weight of authority op tional workmen's compensation acts are constitutional. The remainder of this discussion will, therefore, be devoted to compulsory statutes. There have been but two decisions as to the validity of compulsory laws. Under substantially the same statehient of facts the Court of Appeals of New York has decided in the negative [Ives v. S. Buf. Ry. Co. (Mch. 24, 1911), 201 N. Y. 271, 94 N. E. 431], and the Su preme Court of Washington in the affirmative. State ex rel. v. Clausen (Sept. 27, 1911), 117 Pac. 1101. The courts which have passed on the noncompulsory statutes have studiously avoided expressing any dictum on the validity of the mandatory laws. Un