Chapter X: Section 2

It is the intention of this act to make the employer liable to pay compensation, and it would be the purpose probably to make the employe liable to stand a small amount of the carrying charges as specified in this act when worked out. Some argument has been produced in this convention to the effect that it would be difficult to hold the employer in case he had no fault, but fault is not necessarily the basis of liability in such cases. See Chicago, R. I. and Pac. Ry. Co. _vs._ Zernieke, 183 U. S., 582.

The man who put into operation the dangerous machinery of dangerous employment would be liable by reason of public necessity to be controlled under the elements of the police power for the protection of the general welfare. It has been intimated here that this rule would not apply except in the case of _quasi_ public corporations, but this is not the law. Relations otherwise private may become public under public necessity if the State decides that the public needs protection. See State _vs._ Wagener, 77 Minn., 483; Harbison _vs._ Knoxvill Iron Co., 183 U. S., 13.

It has been urged that no man can have the right taken away from him to sue in the courts for injuries under such circumstances. Generally speaking, it is the rule that a party has no vested interests to a right of action at common law for a future injury. A tort action grows out of a breach of the duty which the State provides that one of its individuals owes to another, either by reason of the peculiar situation as between the parties, or by reason of a public burden which has a peculiar favor in it for the one who is injured. This direct liability the State has imposed by the implied adoption of the common law or by statute, both of which it has the power to repeal. It has repealed or has modified the common law or statutes every time it has imposed a new obligation or taken away an old obligation with respect to tort actions. See Martin _vs._ Pittsburg and L. E. R. Co., 103 U. S., 284; Holden _vs._ Hardy, 169 U. S., 366; Snead _vs._ Central of Georgia Ry. Co., 151 Fed., 608.

With respect to the remedy, we think that the remedy provided here is the appropriate and proper one. It would be so if it were fire insurance. See Wild Rice Lbr. Co. _vs._ Royal Ins. Co., 99 Minn., 190. Such a law, leaving the general question of liability to be determined and simply providing a reasonable method of estimating and ascertaining the amount of the loss, is unquestionably valid in both this country and Europe. See Hamilton _vs._ The Liverpool and London Ins. Co., 136 U. S., 242, and cases therein cited.

The fact that the liability is conditioned upon the application of a remedy as substantially provided in the act does not in any way affect the constitutionality if it is carried out as we suggest. The theory is that until the appraisal is made by the award provided there is no liability. See President, etc., V. and H. Canal Co. _vs._ Penn. Coal Co., 50 N. Y., 250; Wolff _vs._ Liverpool, L. and G. Ins. Co., 50 N. J. Law, 453; Hall _vs._ Norwalk Fire Ins. Co., 57 Conn., 105; Reed _vs._ Washington Ins. Co., 138 Mass., 572.

It has been intimated that the employer might be forced by such law, when the employe could not be so forced. We fail to see the force of this argument. The reason why the employers cannot be forced, if it is done equally, is that it deprives them of their liberty secured by the Fourteenth Amendment to the Federal Constitution to contract with respect to their labor as they see fit upon the theory that the liberty of contract is a property right; but neither the right of property of the employe nor the employer stands above the general public good. The general welfare was one of the principal purposes given in the Preamble of the Federal Constitution as the reason for the making of that constitution. It has been consistently and persistently upheld by the courts whenever needed for the protection of public good; as long as government exists it always will be so upheld. It is an absolute and final necessity. With this right the Federal Constitution was never intended to interfere except in the few instances limited by the Fourteenth Amendment; except as specifically limited the State has as much power as a foreign nation upon this question, and that amendment does not prohibit the exercise of such power to the extent that it is necessary in dangerous employments. See Mayor, Alderman, etc., of N. Y. _vs._ Miln, 11 Peters, 102; Lochner _vs._ N. Y., 198 U. S., 45. Other cases cited _supra_.

In this respect, too, we must not overlook the fact that the employer and the employe do not stand upon an equality in their negotiations with respect to dangerous employments. Stripped of political perplexities and personal prejudices and ambitions, the fact is, and must be recognized, that the fundamental reason for the interference by the State with respect to these matters rests upon the bare fact of the inequality of abilities of the respective parties to take care of their interests by reason of the peculiar situations. In the case of Harbison _vs._ Knoxville Iron Co., 53 S. W., 955, the Court said:

"The Legislature, as it thought, found the employe at a disadvantage in this respect, and by this enactment undertook to place him and the employer more nearly upon an equality. This alone commends the act, and entitled it to a place on the statute book as a valid police regulation."

The Supreme Court of the United States approved this opinion in Knoxville _vs._ Harbison, 183 U. S., 13.

In respect to the length of hours, dangerous labor may be required, it was said by the Supreme Court in Holden _vs._ Hardy, 169 U. S., 366:

"The Legislature has also recognized the fact, which the experience of Legislatures in many States has corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, but that their interests are, to a certain extent, conflicting."

Then in the case of Narramore _vs._ Cleveland, etc., Ry. Co., 96 Fed., 298, a case involving the rights of railway employes to have switches blocked, while Judge Taft was sitting on the Circuit Court of Appeals, he used this language:

"The only ground for passing such a statute is found in the inequality of terms upon which the railway company and its servants deal in regard to the dangers of their employment. The manifest legislative purpose was to protect the servant by positive law, because he had not previously shown himself capable of protecting himself by contract; and it would entirely defeat this purpose thus to permit the servant 'to contract the master out' of the statute."

An employe cannot successfully say to a railway president, "Run your business carefully or I will quit." This is a new right and not necessarily triable by jury in State courts. Am. _vs._ Morrison, 22 Minn., 178. See Minor _vs._ Happersett, 21 Wall., 162.

We might argue this legislation at length, but it seems useless at the present time. There is an agitation throughout this country, unequaled upon any other single subject, in favor of a fairer system of compensation to meet the necessities somewhat along the lines that foreign countries have done. No subject in this country has ever been studied more deliberately; no attempt has ever been made upon the part of all parties to approach a legislative subject in this country with less partisan feeling or more careful study. Employes have awakened to the conditions in a substantial way. Employers are willing that they should have something of a fairer and more substantial nature. The State needs it for its own protection as well as the protection of its members. Public sentiment is aroused, but it is being judiciously controlled. We might have pending in this country a civil war larger than the Civil War of the sixties was and not do as much injury at the present time as the industrial accidents. Fair people, therefore, are going to be willing to have laws that will tend first to prevent accidents, and, second, to fairly compensate for them, and to do it in such way as to be an inducement to both the employer and employe to prevent the accident. We want society protected also. No better time will ever come for a fairer legislative act upon this question than at the beginning. If the movement is uniform, and held in check long enough to be understood, there will be no difficulty about passing the laws. Every bad law injures the cause, every unfair law will prejudice it. The basis is the police power and the liberty of occupation, and contract can only be controlled where necessary; that is, in dangerous employments, but can be in all such employments.

(This concluded the business to come before the Conference, and on motion of Joseph A. Parks, of Massachusetts, the meeting stood adjourned _sine die_.)