Chapter III: Appendix: ,--Brief Report of Washington Conference, January 20, 1910 124 (2)

As I say, the matter was suggested in Illinois as a tentative solution, not by any means as anything final; and I think it was felt that a compensation scheme of some kind would probably be called for sooner or later, and that was the reason the Legislature was urged to make provision for a compensation commission, which commission is now studying the problem.

MASSACHUSETTS.

JAMES A. LOWELL (Massachusetts): I am the last thing in commissions, together with these other gentlemen with me. We are just about a day old, and not quite that old. We were appointed in a great hurry when the bill went through, in order to get here to listen and find out what was being done by the other States, and in order to make up our mind what should be done in Massachusetts.

The only thing I desire to say now is to explain the kind of a commission this is. Massachusetts has got so far under the resolution appointing us that they say, "We want other laws." We are not to investigate the question of whether other laws would be good or not; the Legislature has said, "We want other laws. The present laws are not satisfactory, and we will appoint five residents of Massachusetts to look into the matter and to see what kind of other laws are proper," and it is their command to us that we report at the next Legislature before the middle of next January some kind of a bill to change the law relating to injuries of workmen in Massachusetts.

As perhaps most of you know, there have been two commissions in Massachusetts, or, rather, one Commission and a Legislative Committee. The first Commission sat in 1904, and Carroll D. Wright was the chairman. A great many things were referred to that Commission, not only this subject, but the subject of injunctions and the subject of blacklisting, and so on. That Commission reported a workmen's compensation act framed after the English act. That has come up before each succeeding Legislature since then. Then in 1907, I think it was, a Legislative Committee was appointed and a great many things referred to them, not only this present subject, but also boycotting and things of that kind. That committee did not report or, rather, the minority of it reported in favor of the same act which the former Commission reported in favor of, but it has never been passed, although it has come up at every session, and we have annual sessions in Massachusetts. So this Commission has now been appointed with the mandate to bring in some kind of a bill to change the law.

I might be pardoned for saying a word about what seems to me to be the Massachusetts situation as it differs from others. Our industry there is largely factory industry. Of course, we have cotton mills and woolen mills, and boot and shoe factories, and all that sort of thing. It is a kind of an industry where, take it by large numbers, the injuries are probably a good many, but not very serious, so that a bill which might work well with a State where there were a good many hazardous trades, such as mining and not much manufacturing, might not work well in Massachusetts. Therefore what this Commission has to consider is some kind of a bill which we must report relating to the industries of Massachusetts which will be financially possible.

Of course, we also have the same difficulty which everybody else has as to getting a constitutional bill. I suppose a voluntary bill would be constitutional, but, as Professor Freund has just said, we have had a voluntary bill in Massachusetts for two years which allowed, in the first place, the employers to propose a scheme for compensation and thereby get out from under our employer's liability law, and which the next year was amended so the employes could propose the scheme. That has been on the statute books for two years, and no one has ever made the slightest attempt to come in under it, so that as far as our present situation goes the voluntary system is of no use in Massachusetts. After a great deal of advertisement, nobody at the present time cares about it. It seems to me that some kind of a compulsory law would be necessary to effect anything, and the great legal difficulty is in getting one which will stand the test of the courts.

JOSEPH A. PARKS (Massachusetts): I listened very attentively to the delegates from New York, and while they have done some work there, I was a little disappointed, on the whole. I do not think they have gone far enough to please your humble servant. I notice that they have not included any manufacturing establishments whatever. Of course, that touches me, because I happen to be a mill operative for about thirty years, and we have mostly mills in my State.

I have introduced the bill for workmen's compensation in the Massachusetts Legislature for the last four years, the bill Mr. Lowell referred to, and, as has been stated, they have reported two different measures in two different years, and no one took any notice of them. In the mills in the city where I live, and in all the mill cities in Massachusetts, they have a great many more small accidents than they do of the serious ones. That is especially true in the weaver room, and I happen to be a weaver. We have a lot of things that are liable to take a finger off or injure an eye, or the shuttle is liable to come out of the loom suddenly, or you are liable to slip and get caught in the machinery. The machines are all crowded together, and a girl is liable to get her skirts or her hand caught in the machinery, and when little things like that occur, injuries that will possibly lay the employe up for a week or two, or three or four weeks, the employe should be protected. The operatives do not care much about the loss of a finger or the loss of beauty, or any such thing as that. The particular thing that the operative is interested in is, if he is a man of family, how his family is going to make out while he is on a sickbed and unable to work. He does not make large enough earnings so that he can lay aside his little savings for a rainy day. Unfortunately, the mill operative is the worst paid employe in the United States, without any doubt. They contribute a good deal to the prosperity of the commonwealth which I have the pleasure in part to represent, but they get very little of the cream of the industry.

The industry in Massachusetts, as you all know, is a big success, and we are proud of it and want it to stay there, and do not want to do anything that will drive it out of the State; but we do want to do something for the mill operatives, at least I do, and I think that the Commission which has been appointed will bring about some system that will give them protection. They make all the way from $6 to $10.50 in the cotton mills. The average, I believe, is about $7 in Fall River to-day, so that you can see that a mill operative getting injured has not anything to fall back on. He wants to be assured that his family is going to be taken care of. The operative has recourse to the employer's liability act, but it takes too long. It is about two years before a case comes to court in our State, and while he is waiting his family is waiting for that income that has been cut off.

I hope the New York delegation will pardon my referring to their having left out the manufacturers. There is some reason, no doubt, and I suppose in part it is due to interstate competition, and that is something we will have to look out for. If we have the time, Mr. Chairman, before this convention is over, I would like to hear from the New York delegation in regard to that feature.

JOHN MITCHELL: I think perhaps Mr. Parks did not understand. As I remember it, both Miss Eastman and Professor Seager called attention to what was done for those employed in manufacturing in New York. While our bill did not include those engaged in manufacturing in express terms, it has provided for them. That is to say, we have taken from the manufacturer a great many of his defenses from suits for damages, so that those who are engaged in hazardous occupations may sue under the employers' liability law, and the employer sued cannot set up as a defense the assumption of risk; while mill employes, not only in Massachusetts, but in all the New England States, are denied redress simply because they assume the risk of the industry. Those who are employed in industries where they get their fingers nipped off and other accidents which are not necessarily fatal, but nevertheless cause a loss of two or three or four months' time, under the New York law can bring suit under the employers' liability law, and, no doubt, in most cases would be able to make settlements without going through the slow process of the courts, because there would be a liability on the part of the employer in New York, whereas in the case of Massachusetts I understand at present there is no liability at all. So that we have, while perhaps not ample provision for them, yet so much better provisions than they ever had before that I dare say that nine cases will be compensated for in a suit for damages or settled because of the right to sue, where only one would have been compensated for under the old law.

MR. PARKS: I was not aware of that. I thought the bill covered merely those "dangerous occupations" Miss Eastman referred to.

MR. MITCHELL: No, we have two bills in New York.

NEW JERSEY.

MILES M. DAWSON (New York): I am sorry to say that I do not know very much about what Governor Fort did in New Jersey, or what the New Jersey Commission has done, because I am a resident of New York. I do know, however, that a Commission has been appointed, and that several gentlemen prominent in labor circles are on the Commission, and an officer of the United States Steel Corporation, and an officer of the Public Service Company, which operates nearly all of the trolley lines and, I think, all the electric lighting systems in northern New Jersey, are members of the Commission. From the make-up of the Commission I should expect that they would do good work, but I do not understand that they have as yet completely organized. I have not heard of their appointing counsel even, although they may have done so, and I do not think they have yet got down to work. The fact that they are not represented at this Conference is an indication that such is the case.

I do not think there is anything peculiar about their appointment or any unusual situation in New Jersey, except, as I understand it, that the Governor particularly and the Legislature to a large degree, are interested as nearly everybody is becoming interested nowadays in this general question, and so the Governor considered that there ought to be something done in New Jersey.

FREDERICK L. HOFFMAN (New Jersey): I am not a member of the New Jersey Commission and so am not in a position to say very much about it. Mr. Clark, of the Clark Thread Company, is a member of the Commission, in addition to the gentlemen whom Mr. Dawson has mentioned. They have not as yet organized, so far as I know. They have not elected counsel, and they have not declared their plans, but I dare say when they get down to work they will follow very largely the methods of the New York Commission.

OHIO.

Ohio was called, but the members of the Ohio Commission had not yet been appointed by the Governor.

MICHIGAN.

M. M. DUNCAN (Michigan): There is no Commission in Michigan. The Governor of Michigan, however, appointed a committee of seven delegates to attend this convention in order that we might learn of the progress that is being made and report back.

JAMES V. BARRY (Michigan): As Mr. Duncan stated, the Governor appointed seven delegates to this convention. We are here simply to observe what is taking place and to learn from the States that have made progress what report to make to our own State. We are not commissioned to prepare any legislation of any kind as are the States which have already spoken.

MARYLAND.

CHAIRMAN MERCER: Maryland had a bill at one time. Is there any one here representing Maryland? They had an act passed in 1902, and that act was declared unconstitutional by one of their lower courts in the spring of 1904, as I recall now, upon the ground that there were judicial powers delegated to the insurance commissioner.

H. WIRT STEELE (Maryland): That is true; that act was declared unconstitutional and is inoperative. We have no legislation in Maryland covering the matter of workmen's compensation, and we have simply been relegated to the old doctrine of master and servant. I believe, however, that out of this Conference will perhaps come a movement for a Commission similar to the ones represented here.

CONNECTICUT.

CHAIRMAN MERCER: Connecticut had a Commission that reported, I believe, last year. Is there anyone present from Connecticut?

PROF. HENRY W. FARNAM (Connecticut): I am from Connecticut, but I do not think there is very much to be said. I was not a member of that Commission, although I have read their report. It is rather negative, very cautious.

CHAIRMAN MERCER: Is there any other State Commission represented? We cannot tell nowadays whether we will have a Commission the next day or not, and there may have been two or three appointed since this convention was called. If not, I will tell you briefly how we have studied the question in Minnesota.

MINNESOTA.

CHAIRMAN MERCER: We have not pursued the same theory exactly in Minnesota that has been pursued in any other State. We did not commence as most of the States have commenced. The commencement of the study of this question in Minnesota was originated in the Minnesota State Bar Association. At their annual meeting in Duluth, in the summer of 1908, a paper was read having reference to the then unfortunate conditions at common law, and asking that something be done in the way, or along the line, of or on, some compensatory plan. Somebody made a motion that a committee be appointed to draft a bill and to report it back to the next Legislature. Some of them were afraid to have that done for fear the committee might draft a bill that would not be rational, that would not be fair, and that it might go through the Legislature as a bar association measure.

I was sitting in the front row, and I moved that the matter be referred to the Committee on Jurisprudence and Law Reform, knowing that I was not on that committee and could not be on it under the then circumstances. The motion passed and then the convention became frightened for fear that it had placed too much power in the committee and resolved to have that committee report to a special meeting of the bar association which would be called in St. Paul, in January, so that they might go over the recommendations that were to be made before they would be presented to the Legislature. Up to the 20th of October absolutely nothing had been done on the matter. Then it so happened that I was asked to resign from another committee and take the chairmanship of that committee, its chairman having resigned. The committee was composed of gentlemen whom it was supposed would well balance the sentiment on the question. There was one lawyer that had made a specialty of liability insurance defenses, there was one country senator, the dean of the College of Law of the Minnesota University, an attorney that earned most of his living from the railroads and then I, neither a laborer nor a capitalist.

We took up the question, and found immediately after going over it with different theorists and by correspondence that there was no data in Minnesota or elsewhere that we could get upon which to draw a proper bill. We looked at the experience of Maryland, we looked at the reports, and the experience of New York down to that time, and found that they had not passed a bill which had been recommended for a permissive plan of contract; we looked at conditions in Massachusetts and found they had not accomplished very much there except a lot of work; we looked over the work of the Illinois Commission and corresponded with them, and found that their bill which had recommended a permissive plan of contract had been defeated. We found in New York the constitutionality had been questioned, and in Massachusetts it had been questioned by the Commission.

In Illinois the reports showed that the plan they wanted to adopt could not be adopted constitutionally, and they recommended the permissive plan in lieu thereof. Connecticut, I think, at that time had appointed a Commission, but it had not yet reported. The United States had passed a law known as the Act of June 11, 1906, which affected the comparative negligence rule and also provided certain obligations with respect to offsetting settlements, and the Supreme Court had declared that unconstitutional in January, 1908. Two important measures had been presented to Congress with able arguments to support them, and up to that time they had been practically limited in their discussion to leave to print in the _Congressional Record_.

Our philanthropic and other state institutions in Minnesota had no data from which we could get any intelligent idea, according to the correspondence that we had. The Associated Charities, both state and national, had no sufficient data. The labor unions throughout the United States had no sufficient data. The National Manufacturers' Association had no sufficient data. I say this because I wrote to the President, and the correspondence was referred to Judge Emory, and we never got any information, because, as I understood, they had not then studied the matter sufficiently. I wrote to Mr. Mitchell, and he answered that he had no sufficient data, and referred me to Mr. Gompers.

I wrote to Mr. Gompers concerning it and he answered practically to the same effect, sending back a bill to establish comparative negligence and some other provisions somewhat along the federal lines that had been declared unconstitutional by the United States Supreme Court, because covering business within the State as distinguished from interstate business; that is, it related to both, as the court construed it.

From Eugene V. Debs, representing, as I thought, another group of men, I received an excellent letter explaining what had been done in other countries, and referring me to the data, he having evidently studied it considerably.

From James J. Hill, through his counsel, I received the answer that they favored such legislation if it could be properly made.

Andrew Carnegie had his secretary write that he favored an act along the lines of "Britain."

Now, I may confess to you that up to this time, neither the Minnesota employers nor the labor unions were in this, and not because I was a politician, but because I had had some experience, I concluded if I could get some expressions from these various interests that it might be valuable when we came to the Legislature with this bill, if some bill along this line was drafted. I ransacked the libraries at home, and communicated with the largest libraries in Boston and New York and all over the country to secure the books and magazine articles touching on the matter, but nowhere could we find any sufficient argument as to the constitutionality of such a law, nor any sufficient data to make an economic law. A paragraph by Professor Freund, in his work on _Police Power_, and an article by P. Tecumseh Sherman, a former commissioner of the State of New York, were about all I found on the question of constitutionality.

Later we found that the Russell Sage Foundation had been looking into the matter abroad, through two able men, Dr. Frankel and Mr. Dawson. They were abroad that summer to study the matter and we afterward got in touch with them. The result was that our committee, or rather myself and one other gentleman, because we were not able to get any of the others to meet with us, reported to the bar association that we thought we ought to have three kinds of laws passed; one to appoint a Commission to educate itself, another which would require those persons who had accidents, both employers and employes, to report data, and the third, one that would require the insurance companies insuring such risks in Minnesota to make reports in detail to the Commission, in order that they might study out precisely all the results.

We found that New York and Wisconsin had valuable articles, and so had Massachusetts and one or two other States, in their Labor Bureau reports. Our correspondence with every labor department in the United States did not develop very much more, except some valuable work by the Illinois Commission, and some valuable work by some professors in various institutions in the form of articles and a pamphlet, I believe by the Chicago _Record-Herald_, that was put out while the Illinois Commission had this work under consideration.

The bar association approved that report and asked us to send it on to the Legislature with recommendations for those three bills. Just prior to that we had arranged for meetings with the labor unions in our State for political reasons, to find out what their views were. Then with the president of the employers' association, again for political reasons, to find out what their views were. Finally we got the two together, and they had not been working together so well up there as they might have been in some other places. But by the time of the second meeting they passed a resolution which was to the effect that they would join hands in trying to get a compensation movement started in Minnesota, but that neither should undertake to take any advantage of the other in the Legislature, while they were both faithfully performing their part of that agreement, and they stuck loyally by it.

Then we took up the question of how we should present the matter to the Legislature, and the Governor said he would send a special message to the Legislature recommending our plan. That was done, and bills immediately began to appear in the Legislature from various motives, but we all three stood on the position that we were going to have an absolute plan on an intelligent basis if we could get it. Along toward the end of the session the Legislature passed the three bills which we had recommended.

Our Commission at the present time has thousands of reports of accidents in its possession, with the dates of the accidents and all the data concerning them, which we are not at liberty to make public because the bill does not permit us to do so. We wanted a bill that would prevent our doing so until we had our reports made, so that no one could get in and get hold of this information and take advantage of it.

In addition to that, we have the reports coming into the labor department as to the actual injuries that occur. Those we have not yet tabulated.

The Governor appointed George M. Gillette, who was a large manufacturer; William E. McEwen, the State Labor Commissioner, and myself on that committee. One of the first things we did when we met was to take up the question of the foreign laws. We found that they were not translated into English. One of the first things we undertook then was to get the labor department at Washington to translate all that were not translated. It agreed to do so. When we held the Atlantic City convention a resolution was passed at that meeting requesting the same thing. We wanted not only some education, but some uniform action. So we started to correspond with the members of the other commissions, like the New York Commission and some others that had been appointed in the meantime, and asked them to meet us and discuss matters. It was finally suggested that invitations be sent out for a joint meeting. That was done under my own name, representing the Minnesota Commission. We met down at Atlantic City, and after that meeting was held, we held our second meeting down in Washington, and this meeting is the third.

Mr. McEwen and Mr. Gillette have been abroad to study the question and have just returned. I hoped they would be here, but they have not arrived.

We have taken up the matter through correspondence, we have asked special questions through the press, and we expect to get our bills in shape so that they will be intelligible for discussion through this convention and others, and then put them up to the public and ask the manufacturers and the railroads and the labor unions and all of the other representative bodies that will be affected by them, to appoint men who may study the questions sufficiently to come before us and discuss them intelligently, so that we may be educated to the best possible theoretical standpoint.

In the meantime I shall probably go to Europe in July. Our report will not be made until next January. The bill which passed the Legislature requires us to study the conditions in this country and abroad, and to report a bill or bills which we think are consistent with the necessities of the case, and, so far as possible, to make the bill or bills constitutional. The report of the Atlantic City Conference, when it was printed, was sent to the Governor of each State, to the attorney-general of each State, and to the labor department of each State, and that report was quite a large volume. Bar associations throughout the United States have quite generally taken this matter up, and I should think in not less than eight or ten States they have it under consideration now. The labor unions in quite a number of States also have it under consideration. We sent out invitations to the governors, and nineteen of them appointed delegates to the Conference held in Washington, in January. Fifteen States were represented. I do not know how many States are represented here to-day, but all these delegates were accredited to come to this convention.

We have done a lot of miscellaneous work up there, but we are trying to get all our work in shape, so that when we do draft our bill we shall know as nearly as we possibly can, at least theoretically, what we are doing, and we are glad to see that New York and Wisconsin and all these other States are moving ahead. You have good commissions and we glory in the work you are doing. We only hope that we may be able to profit a little by your experience and by your legislation. We hope that the movement can be made as nearly uniform as possible. Up to the present time we have been discussing very largely in Minnesota the sort of a bill which has been sent out for discussion this afternoon, and I shall not go into that matter at all, but as temporary chairman. I wish to thank both you ladies and you gentlemen for being present at this meeting and for taking part in this discussion.

PROF. SEAGER: At the last meeting of the Conference a committee of three was appointed to choose an Executive Committee of fifteen members. It appears that I am the only member of that committee of three present at this meeting, so I can offer a unanimous report.

[The recommendations of Professor Seager were accepted by the Conference, which accordingly elected ten members of the Executive Committee to serve as executive officials with the five general officers. The complete list as finally elected is printed on the second page of the cover of this volume.]

SECOND SESSION, FRIDAY, JUNE 10, 1910, 2.00 P. M.

Chairman Mercer called the second session of the Conference to order at 2 P. M., and announced that the Reports of Committees was the first order of business.

As chairman of the Executive Committee, Professor Seager submitted a draft of by-laws, which was, with slight amendment, adopted by the Conference. The final draft is printed in the Introductory Note to this volume.

The report of the Committee on Nominations was then presented by Miles M. Dawson, and upon motion adopted by the secretary casting the unanimous ballot of the Conference for the election of the general officers as printed on the second page of the cover of this volume.

This completed the order of business to come before the Conference, and the discussion of the "Workers' Compensation Code" was taken up as follows:

WORKERS' COMPENSATION CODE.

CHAIRMAN MERCER: There is one further committee, I think, that was appointed to draft a bill for discussion, and we were so far apart that we never got together. One was sent out, however, in printed form, and I think all of you have had copies of it. A thousand copies were distributed.

I will say before we begin the discussion of that bill that it was meant to be drawn as an outline, and to be sufficiently broad in the different sections to raise all the points for discussion and not intended to be either technically correct, or what might be called an artistic measure. It was intended to be broad enough to provoke discussion as to all of the necessary elements of a bill. The formal program, as outlined, involves this one that was distributed, and if that brings out all the points which you want to discuss it might be best to take that up section by section and hear your views on that, or other schemes if you desire. It would seem hardly right, however, since there are a number of other bills here, and they might not all agree, to limit you to this specific bill, but you ought to be permitted to discuss, I suppose, the principle involved in each section as you take it up.

[The bill which was designed and used as an outline for the discussion which follows is here reprinted.]

WORKERS' COMPENSATION CODE.

(OUTLINE FOR DISCUSSION).

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: