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.

[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:

Section 1. Dangerous employment defined. That every employer in the State of Minnesota conducting an employment in which there hereafter occurs bodily injuries to any of the employes arising out of, and in the course of, such employment, is for the purposes of this act hereby defined to be conducting a dangerous employment [at the time of such occurrence], and consequently subject to the provisions of this act and entitled to the benefits thereof.

Sec. 2. Liability of employers. That every such employer shall be liable to pay to every such employe so injured, or in case of his death, to the legal representatives, as hereinafter defined and apportioned for all bodily injuries received by such employe arising out of, and in the course of, such employment in this State disabling such employe from regular services in such employment for more than ten days and according to the schedule of rates contained in Section 3 of this act, on the condition precedent only, that, in case of dispute as to the amount to be paid for such injuries, or the failure or refusal to agree upon or to pay the same, such employe or the legal representatives thereof shall comply with the provisions of this act.

Sec. 3. Compensation allowed. The compensation herein and hereby allowed, if established as herein provided, having arisen out of and in the course of such dangerous employment within this State, shall be on the following basis:

(a) For immediate death or for death accruing within five years as a result of such injuries, or for injuries causing total incapacity for that service for five years or more, 60 per cent. of the amount of wages the injured was receiving at the time of the accident for a period of five years, provided, such payment shall not continue longer than to aggregate $3000.

(b) For total or partial disability for less than five years, 60 per cent. of the wages the injured was receiving at the time of the injury so long as there is complete disability for that service and that proportion of the said percentage which the depleted earning capacity for that service bears to the total disability when the injury is only partial or after it becomes only partial.

(c) In addition to the foregoing payments, if the injured loses both feet or both hands, or one foot and one hand, or both eyes, or one eye and one foot or one hand, he shall receive, during the full period of five years, 40 per cent. of the wages which he was receiving at the time of such accident; or if he loses one foot, one hand, or one eye, the additional compensation therefor shall be 15 per cent. of his said wages; or if he be otherwise maimed or disfigured, then, for such maiming or disfigurement, during the time it shall continue, he shall receive therefor such proportion of 40 per cent. as such maiming or disfigurement bears in depleted ability in the employment to the relative loss of the members specified herein; Provided, That in no case shall all of the payments received herein exceed in any month the whole wages earned when the injury occurs, nor shall the said 40 per cent. when all received, or any portion thereof, and the said 60 per cent. when all received, or any portion thereof, continue longer than to make all sums aggregate $5000.

Sec. 4. Repeal of other liabilities. The right to compensation and the remedy therefor, as herein specified, shall be in lieu of all other causes of action for such injuries and awards upon which they are based as to all persons covered by this act, whether formerly authorized or allowed by, or as the result of, either state, statute or common law, and no other compensation, right of action, damages or liability, either for such injuries or for any result thereof, either in favor of those covered by this act or against such employer based on state law, shall hereafter be allowed for such injuries to any persons or for any of the injuries covered by this act so long as this law shall remain in force, unless, and then only to the extent, that this law shall be specifically amended.

Sec. 5. Conditions precedent to right of recovery. That as a condition precedent to such right to compensation, such employe or the legal representatives thereof, as the case may be, shall within ten days after knowledge of such injury, unless there be valid excuse for delay and then immediately after such excuse is removed, cause a written notice thereof in substantially the form designated in paragraph —— (form to be provided) of this act, to be served upon the said employer by leaving a copy thereof addressed to the employer with the person in charge of such employe while he was so working, if that person is still in said employ, or with some superior agent, officer or person in charge of said business at any office thereof within this State in the same way that a summons can now be served; and in case of a dispute between the employe and the said employer, or in case of the failure of such employer and employe to agree upon such claim or in case of failure or refusal of such employer to pay, such employe shall submit his claim for compensation hereunder, both as to the nature of the injuries and the amount to compensate therefor under this act, to a board of three arbitrators, as hereinafter specified, in substantial compliance with the form contained in section —— hereof.

Sec. 6. Board of arbitration and awards. There is hereby created a Board of Arbitration and Awards, known as "Board of Awards" with jurisdiction throughout the State of Minnesota to arbitrate the questions arising hereunder and make awards consistent herewith, which is now and shall remain subdivided into districts with the same numbers and co-ordinate with the judicial districts of this State as they now are and may hereafter be changed, which board shall consist of three members from each judicial district, which members shall be non-partisan in politics, appointed by ....................., and hold their offices during a period of ............. years; except for fraud, or want of jurisdiction the findings and awards made herein shall be final and conclusive as to the nature of the injuries and the amount of compensation.

Sec. 7. (The law shall provide for compensation, expenses and secretary, and probably that the Clerk of Courts act as Clerk and make annual report to Commissioner of Labor.)

Sec. 8. Remedy.

(a) Every person claiming the benefits of compensation under this act, may issue to the employer from whom he claims the same a notice of claim in substantially the following form:

First: You are hereby notified that ...................... has this day filed the original of this notice of claim against you with the Clerk of the Board of Awards in District No. ........ and that you are required to answer the same with a copy served upon the undersigned within ten days.

Second: Said ............................... was in your employ as a ......................... at .................. on or about the ....... day of ........ 19.... and received an injury of the supposed general nature following: .......................................................... by reason of the following incident (describe it) and that such injury arose in and out of the course of said employment and has lasted more than ten days and it is claimed that you are liable to pay compensation for .......... per cent. of the wages which were $....... per ........ at the time of such injury, and for ....... per cent. for maiming and crippling.

(b) Answer. The answer shall

• 1. Admit or deny the employment.
• 2. Admit or deny that an injury was received at the time and place.
• 3. Admit or deny that the injury, if any, was in the course of employment and that it arose out of the course of employment.
• 4. Set up the injury claimed if different from the injured's claim.
• 5. Admit or deny or correct the amount of wages.
• 6. Give notice of any special claim to be urged to defeat compensation.

(c) Reply. The reply shall so far as possible admit or deny the specific statements of the answer which contradict or bar the complaint.

(d) Hearing. As soon as the reply is filed with proof of service the clerk shall set such claim for hearing in its order at the earliest date possible and notify both parties by mail, thereof.

Sec. 9. Award. The Board of Awards shall make its award upon a full hearing, to both parties held after notice and shall consider the whole record and may visit the premises if within its district and make such award as it shall decide to be consistent with the spirit and powers of this act, and in the following form:

1. Title.

2. We find in the above case that the injured received injuries arising in and growing out of the course of such employment when he was receiving as wages the sum of $......... per ............ payable .................

3. That the injuries appear now to be and are as follows: ..........................................................................................................

4. That for ................. disability the compensation to be paid is hereby found and awarded against the employer ................... of ................. at ............ per cent. of such wages payable to the following persons in the respective proportions for .................... and as said wages were paid and (of injuries uncertain) .................. this proceeding is hereby adjourned to the ........ day of ............... for further consideration.

Sec. 10. How risk may be insured. That any such employer, or any association of employers, may keep the risks created by this law fully covered by insurance, in associations, or insurance companies approved by the insurance department of this State, for policies covering the full liability under this law, and thereby relieve themselves from any further responsibility with respect to paying such compensation, and if any such employer or employers shall so insure such risks they shall be entitled to take and keep from the wages of their laborers, on a pro rata basis, of the wages, .......... per cent. of the amount necessary to pay the regular premiums for carrying such insurance.

Sec. 11. All insurance and all benefits of compensation due or to become due to any employe under this act shall be and remain exempt from garnishment and all other forms of attachment.

Sec. 12. Provision defining the words and phrases, and covering all tenses, pronouns and both sexes.

Sec. 13. Of course the jurisdictional features and all matters of practice, rehearings, etc., must be worked out after we see what substantive provisions are to be made.

Chairman Mercer: The reason for heading that, "Workers' Compensation Code," was to cover the constitutional provisions in some of the States, which prohibit a bill from covering more than one subject, which shall be expressed in its title, and the fact that the term "code" means a system of law. By the adoption of that scheme it was our intention to raise the point, so that if you agreed to that general idea you could adopt a law with a heading sufficiently broad to codify the law of your State on that question, to allow you to repeal such portions of the common law as you wanted to repeal as a part of that chapter, and not be subject to the limitations of the constitutions of a number of States which would prohibit your covering more than one law. Do you care to waste any time on the heading?

Mr. Dawson: I would like to ask one question about the heading and that is why the word "workers" was used instead of "workmen?"

Chairman Mercer: Like everything else, that was used to provoke discussion. Workmen's Compensation, or Workingmen's Compensation, seems to have a technical meaning in this field of legislation. It seems to be understood generally as covering this whole subject, and yet when you come to define your bill and outline it and cover it section by section, you must either leave something to the construction of the courts, or else you must make provision to the effect that workmen shall cover workwomen and children and boys and girls and everybody connected with it. It seems to me it would cover that point (although it seems to be revolutionary in form) if we used the term "workers," because that would include everybody.

Mr. Dawson: Your idea then was, Mr. Chairman, that the word "worker" is believed to have more comprehensive significance than the word "workmen," and that it would be certain to be so held by the courts?

Chairman Mercer: That was my own idea. I think I am sound on it, but I have tried enough lawsuits to know that a fellow is never sound until he is done. Shall we pass to the first section and leave it without any expression as to the heading?

Mason B. Starring (Illinois): I would like to inquire in regard to Section 1, as to what extent that applies to farm workers. Supposing a man was driving a dredging machine in the field and his horses became frightened and ran away and killed him. Is the farmer liable under this act?

Chairman Mercer: He was intended to be, if you adopt that act.

James A. Lowell (Massachusetts): I should like to inquire why you say "every employer conducting an employment in which there hereafter occurs bodily injuries to any of the employes" shall be deemed to be conducting a dangerous employment? Is that from some idea that if you call an employment dangerous you thereby are allowed to change the terms of it by your constitution, and if you do not call it dangerous, you are not?

Chairman Mercer: The idea was that if you worded the first section the way we have, it would provoke discussion on all those elements. That was the first plan. The fundamental reason was that if the employer was conducting an employment which was capable of being dangerous, and he guarded his employes through the safety devices he employed and the grade of men he employed, so that the whole scheme of his business was conducted in such a way that he did not have any accidents at all, that until he had some accidents he would not be classified as being in a dangerous employment. In other words, two men might run exactly the same institution with the same machinery manufacturing the same article; one set of men will run it so there will not be any accidents maybe in ten years; the other set may have ten accidents in the first year by reason of the way they rush, and their carelessness, and the grade of men they hire and their failure to protect their machinery and all that sort of thing. It was the intention to make that as broad as you possibly could make it, so as to provoke discussion as to whether you wanted to say every industry that had an accident should be liable, or whether you wanted to limit it to some of the industries as they have done in New York and in some of the foreign countries.

Mr. Lowell: Then it was not the idea that by calling a cotton factory dangerous you thereby are allowed to put on certain provisions of the law which, if you do not call it dangerous, might not be constitutional?

Chairman Mercer: Not exactly, except this: The idea was involved that it is within the province of the Legislature to declare an employment dangerous if there is a reasonable basis for argument as to whether it is a dangerous employment. That is our view of it. Now, if a court gets hold of that and should say that there was no basis for declaring that a dangerous employment, it would say that the Legislature acted arbitrarily.

Mr. Lowell: I should judge your idea was that you could not impose the law on a cotton factory simply as a cotton factory, but you could impose it on a dangerous factory.

Chairman Mercer: My idea was that it was a safer way to impose it on one that had accidents than to single out any certain line of industry that might not be as dangerous as some others.

Mr. Lowell: I do not know that you quite get my point. My point is that it may be impossible for the Massachusetts Legislature, we will say, to put a certain kind of liability onto a cotton factory, which it might put onto a powder factory. Would they, if that were the case, make the situation any different by calling the cotton factory a dangerous factory?

Chairman Mercer: Not unless there was some basis for it.

Mr. Lowell: They certainly do have dangers; we will assume that people are injured there.

Chairman Mercer: It is my view of the decisions of the court that that would be so. The reason that I put that that way is this: If you have an industry that has one accident, as expressed by Mr. Roosevelt in one of his messages, that is a dangerous industry to that man and his family. If it kills one man, in his way of putting it, it is not much consolation to his family or to him before he dies, to say that you are crippled, or you are hurt, but not in a dangerous employment. It was dangerous in his case. By defining it so that every employment that has an accident is dangerous, and then making the liability as one of the subsequent sections, exactly in proportion to the accidents they have instead of defining certain lines as dangerous, and others as non-dangerous, I think you have a better classification.

Prof. Seager: To put a strong case, do you think that the courts would back you up in saying that the mere fact, we will say, that an employe in a cotton factory slipped on a banana peel in going to his machine in the morning and was injured, constituted that a dangerous trade in a sense that would justify making an employer liable for the injury as the latter sections of the act hold? Under the latter sections of the act that would seem to be in the course of his employment; going to his machine would be a necessary part of his employment.

Chairman Mercer: If it grows out of the industry itself. In England in determining what is within the course of the employment, they have held that while two men might be working side by side in an employment, and one of them might be hurt while he was there, yet if he was hurt by reason of some horse play that he did on the side with some other fellow, that that was not really a risk of that industry, and that it does not grow out of the course of the employment. I should think your banana peeling case would be very close to the line, and it would depend upon whether it grew out of the employment.

Joseph A. Parks (Massachusetts): Suppose that we use a bobbin instead of a banana peel.

Prof. Seager: There was a case where a man's eye was put out by the cork of a pop bottle when he was eating his lunch, and they held that was in the course of his employment. Would our courts, in your opinion, back us up in describing liability for accidents in that sweeping way? I do not question at all the desirability of doing it; it is only a question of the constitutionality of doing it.

Mr. Lowell: Do you think it is necessary in Minnesota to distinguish between hazardous and non-hazardous employments? Apparently our friends in New York think that it is constitutionally necessary; that with certain risks, such as tunneling and railroad building and bridge building, which every one knows are hazardous, that a law applied to them would be constitutional, whereas if it applied to things that were not so hazardous it would not be constitutional. Is that your opinion of the law of Minnesota?

Chairman Mercer: In a measure, yes; that is, so far as classification is concerned; you must have a reasonable basis for the classification. If you do not cover all the accidents then you cannot cover part. It would be my judgment, unless you have a reasonable basis for the classification, that that would be true.

Mr. Lowell: The basis of classification would not be the fact then, that accidents happen, but that a good many happen. That is, it is not a hazardous business, but is a light business, as the insurance people call it.

Chairman Mercer: I think that the courts in some of the cases would maintain the idea that if you picked out the industries that had a large number of accidents and were sure they would have accidents, they would maintain that classification. But if you picked out an industry that had a great many accidents and classified it as dangerous, and let one alongside of it go that had fully as many accidents, I think possibly the courts might hold that you had acted arbitrarily, and therefore knock out your legislation, to use a street phrase.

Senator A. W. Sanborn (Wisconsin): If I understand that first section, it would include every employer, whether he is a farmer or a man who keeps a house servant.

Chairman Mercer: It was meant to be broad enough, Mr. Sanborn, to raise that question.

Mr. Sanborn: That is what I understand this section, as now worded, would embrace.

Chairman Mercer: Yes.

Senator John J. Blaine (Wisconsin): The point that worries me as much as anything, is the question as to whether it is a dangerous occupation. This first section provides that every employer conducting an employment in which there hereafter occurs bodily injuries is defined to be conducting a dangerous employment. Is there any substantial difference between saying it in those words and saying that every occupation is dangerous, because I do not believe that we can conceive of any occupation that is not dangerous or in which no accidents occur. Even a school boy stubs his toe on the street. It is not in and of itself a dangerous occupation, but he accidentally gets hurt. Now, where an employment in and of itself would not be dangerous, but where through some unforeseen circumstance an accident should occur, would that fact of itself make an industry a hazardous industry?

Chairman Mercer: When they covered that matter in England, I understand the definition was that the accident might occur in the course of the industry and not occur outside of it; it might occur outside of it and not occur within it. For instance, you might start to go to work, if you are a laborer, and after you got on the ground you might be traveling along the same as any other member of the public. You would be going to your employment but you would not be within the course of it. That is the way they defined it over there, and in that case the accident would be treated simply in the same way as an accident to any other member of the public. They might suffer an accident and yet there would not be a liability to the employer.

Senator Blaine: The point I can't distinguish is this: That the mere fact that an injury happens to an employment, that in and of itself makes that employment dangerous, any more than every industry is dangerous.

Chairman Mercer: It has got to occur within the employment; that is, it has got to be a result of the employment to make it dangerous.

Senator Blaine: In the first place, is it possible to conceive of any employment where there is not a hazard growing out of the employment? If that is true, why not say that every employer shall compensate under the terms of the act, regardless of whether he is engaged in a hazardous occupation or not. In other words, can you define a hazardous occupation by a legislative act? Will not that in the end be the point around which the whole question will revolve; i. e., is it not as a matter of fact from the evidence produced, a dangerous occupation, no matter whether accidents have or have not resulted?

For that reason is it not quite impossible to define a hazardous occupation?

Chairman Mercer: That question in fact is first determined by the Legislature, as I understand it, as to whether it is a dangerous employment.

Senator Blaine: Can the Legislature intrude upon the judicial functions of our government? Can they say that is a fact or must not the courts do that themselves?

Chairman Mercer: No, the courts, as I understand it, take judicial knowledge of the history and conditions out of which the legislative act may grow, and I believe would follow the rule the power of the State it is valid, although the judgment of the as laid down in Lockner vs. New York, 198 U. S., where the Court said: "This is not a question of substituting the judgment of the Court for that of the Legislature. If the act be within Court might be opposed to the enactment of such law."

The reason why we did not cover every employment was that it did not seem to us every employment was dangerous, and if it was not dangerous and we were relegated to the police power of the State to define it, the law would be held invalid. But it seemed to me individually, and I do not want anybody to think that this is the judgment of the committee, because they could not all get together, that if we based it on the fact that injuries did occur, nobody could ever stand up in a courtroom or sit in comfortable court chambers and write an opinion on the theory that this employment, when an accident has occurred in the case, is not a dangerous employment if the Legislature find it so. The idea was to cover all the States so as to leave it as safe as we could get it.

Senator Blaine: Certainly the section will do what you contemplated, bring about discussion.

Mr. Dawson: On the point that has just been raised I would like to say that this matter of the power of the Legislature to define a thing was before the United States Supreme Court in an oleomargarine case, originating, I think, in Pennsylvania. There had previously been an act passed, I think, by the New York Legislature, which, though not declaring oleomargarine deleterious to health, imposed certain regulations amounting almost to prohibition.

That was tested through the various courts to the Supreme Court of the United States, I think, and it was definitely held by that court that the case had not been made out that it was deleterious. In other words, it was virtually held that it was not, and so that the law was not a proper exercise of the police power. Following this the Legislature of Pennsylvania adopted a similar bill, containing a declaratory provision that it is deleterious to health. That was carried to the same court and the Court held that the Legislature was entirely within its rights and had power to so declare. I think that might have some bearing upon this question.

I would like to ask the Chairman if the effect of this is not virtually to declare all occupations hazardous occupations in view of the following facts: That the law would in any event be a nullity if no accidents happened in any given employment, and the moment an accident does happen in that employment, it is declared to be a dangerous employment; and would not the law cover that very accident.

Chairman Mercer: The proposed law as I have since changed it has this provision: "That every employer in the State of —— conducting an employment in which there hereafter occurs bodily injury to any of the employes, arising out of, and in the course of, such employment, is for the purposes of this act hereby defined to be conducting a dangerous employment at the time of such occurrence." That was not in the original draft and I do not know whether it is in the one you have or not. I put it in recently. When I came to read that section critically I concluded that the criticism you make is a good one.

I do not want to take your time, but there are two or three short sentences here by the United States Supreme Court on that question which I think are authoritative, and I would like to read them. In the case of Holden vs. Hardy, 169 U. S., page 365, the Court says: "The protection of the health and morals as well as the lives of citizens is within the police power of the State Legislature."

Then again, on page 789, the Court said: "Of course it is impossible to forecast the character or extent of these changes, but in view of the fact that from the day the Magna Charta was signed to the present moment, amendments to the structure of the law have been made with increasing frequency, it is impossible to suppose they will not continue and the law be forced to adapt itself to new conditions of society, and particularly to the new relations between employers and employes as they arise."

That was a case of regulating the hours of work in mining. After reviewing a number of the decisions upon the police power and establishing that it was within the power of the Legislature to judge of those matters, the Court said: "These employments when too long pursued, the Legislature has judged to be detrimental to the health of the employes, and so long as there are reasonable grounds for thinking that that is so, this decision upon this subject cannot be reviewed by the Federal Courts."

I take that as pretty conclusive, and they have followed that rule since.

Senator Sanborn: In discussing a bill like this, section by section, it strikes me that we are going to reach practical results. There are three fundamental principles that underlie this whole subject that we ought to determine, or else we should proceed to draw either two or three bills based upon the different views upon those underlying principles:

First: Shall we prepare a bill that is compulsory upon the part of the employer and optional as to the employe?

Second: Shall we prepare a bill that is compulsory upon the part of the employer and compulsory upon the part of the employe?

Third: Shall we prepare a bill that is optional both with the employer and with the employe?

To my mind those are fundamentals, and if we are going to get at what is known as a uniform bill that will meet with the approbation of the different States and meet the constitutional difficulties that we find in the way, we must prepare a bill along lines that will meet the different situations in the different States, at least in those States that compete from a manufacturing point of view.

I am here for information and I feel that we want light along those lines. While I am willing to concede for the sake of argument that under the police regulation you can make this law compulsory on the part of the employer, as New York has done, I am not yet willing to concede that you can make that law compulsory on the part of the employe. I think there is something yet there that must be overcome before you can reach that result.

To illustrate what I mean for a moment, if you can imagine for a minute that I own this building, I should contend that the Legislature of the State of Illinois could not authorize you by your negligence to destroy this building and give me in compensation ten dollars; to make that the law. Of course my right arm may not be as important to me as the building, but I do not yet believe that the Legislature of Illinois can even authorize you by your negligence to destroy that and thus destroy my means of livelihood and say that I shall receive no compensation, or say that it shall be ten dollars or say that it shall be one hundred dollars, or that it shall be one thousand dollars which I shall receive for that arm; to destroy my usefulness to myself and my family and fix the compensation at one hundred dollars or a thousand dollars, without my consent. I have cited that as a mere matter of illustration, that there are difficulties to overcome if you are going to say that that is a compulsory law upon the part of the employe without any election.

If we are drafting a bill that is compulsory upon the part of the employer the first question we have to consider is in Section 1 of this bill; we have got to define the dangerous employment. You can see then it is very material in that form of bill to define a dangerous employment. If, on the other hand, we are drawing an optional bill we have no interest in any such definition at all.

I just offer these as suggestions, if we are going at this subject from a practical standpoint, and if we can I am perfectly willing to go to the extent of saying that we will work along all three lines and then determine which is the more likely to stand up and effect the purpose that we are trying to accomplish.

Samuel R. Harper (Illinois): On the question presented by the first section of the tentative bill presented this afternoon, the rule, as I understand it, is that the declaration by the Legislature that a certain trade is hazardous is merely an indication of the legislative judgment on that proposition and nothing more; and that that judgment is revocable by the courts and is not conclusive unless the declaration is based in some way on some reasonable classification of hazardous trades and industries. If the classification is based on some reasonable ground arising from the hazards of the business then the courts will say that is a reasonable classification, that the legislative classification is conclusive.

On the points suggested by Senator Sanborn, I agree with him that the fundamental to adopt at the outset is whether or not we shall adopt a compulsory system or whether it shall be elective. If it is compulsory it must rest entirely within the police power of the State. If it is an elective system then it is a matter of contract and option with both parties. We ought to determine first what we are going to do about that because if we have an elective system we need not worry at all about the constitutional problem or the question of police power.

I agree with the Senator on the proposition that a State under its police power may establish a compulsory system of compensation so far as the employer is concerned. It seems to me, however, when we attempt to shift the basis of our present system from that of tort to compensation we are simply reading into the oral contract of employment between the employer and employe a guarantee on the part of the employer that up to a certain limit he will protect and insure the employe against the hazards of that trade. We all of us, of course, are familiar with the doctrine of respondeat superior, and that doctrine arose in exactly the same way over two hundred years ago and it has never been questioned as yet. That arose not out of any theory of natural justice, but upon the theory exclusively that it was a proposition of safety, and that if the employer wished to delegate his business or that part of it conducted by servants, to those servants, he certainly should be responsible for their acts as long as they were in the discharge of their duties.

Now, why isn't it, Mr. Chairman, just as reasonable to assume and why is it in conflict with any theory of natural justice to say that if an employer seeks to employ a man in a hazardous trade or in any trade, he shall compensate him to a reasonable extent; he shall guarantee to him a limited compensation and that he shall guarantee him against the consequences of an injury while he is engaged in that employment? Will not the courts read into that bill practically that contract of guaranty?

We are talking about judge-made law on this proposition. The Legislature has never attacked this proposition at all. The courts have established this doctrine of respondeat superior and as to the safety appliances, etc., is the form of a Workmen's Compensation Law.

Prof. Seager: The suggestion contained in this first clause seems to me a very valuable and helpful one; that is, that judicial opinion in this country may be ripe for taking this view other doctrines of that kind, and we do not know what the courts would do if the proposition were presented to them. I believe we lack courage a little bit on that subject. I should think that the courts would welcome the co-operation of the Legislature in changing this system. I believe they are in hearty sympathy with the movement, as indicated by recent decisions of the courts throughout the country. I believe that they are themselves out of sympathy entirely with the worn out doctrines which they are obliged to follow because of the precedents before them; and if the Legislature would step in and give them a chance I believe that they would be with them.

Chairman Mercer: In making this draft of a bill we fully appreciated that the outlines which Senator Sanborn has given substantially represents the different theories; but this bill was drafted on the theory of bringing up for discussion the whole subject as to whether or not you wanted to define your dangerous employments and make them compulsory against the employer; to say that the employe should not have any common law liability; that he should comply with this law before he had any remedy; that he should be compelled to go before a committee of awards and that the award when given should be conclusive as to questions of fact, leaving the legal liability and the jurisdictional questions open to the courts on appeal. That was the scheme on which this was drawn.

Prof. Seager: The suggestion contained in this first clause seems to me a very valuable and helpful one; that is, that judicial opinion in this country may be ripe for taking this view that a few years ago would have seemed rather revolutionary; the view that any industry in which an accident occurs is to that extent a hazardous industry, and therefore subject to special regulation under the police powers of the States, and that the form of regulation that should be adopted along with the regulations as to the safety appliances, etc., is the form of a Workmen's Compensation Law.

The New York Commission, while some of us perhaps were inclined to agree with the optimistic views that Mr. Harper has just expressed, was not able, as a body, to believe that the courts would go quite so far as this first clause contemplates. It was for that reason mainly that we contented ourselves with enumerating extra-hazardous occupations which came clearly under the police power of the State, and limited the compensation in those employments to risks of those employments as distinguished from accidents that merely happen in connection with the employment or that might have happened in any employment. I hope very much myself that the other States which are working on this problem will be more courageous than we were, and that they will place the matter before the courts in this extreme form and determine what the courts will do with it. I think perhaps there is more reason to expect a favorable decision from some of the courts in the Western States than from the New York Court of Appeals. Looking at the matter as a national problem, I think it would perhaps be better to have the question come up first in some of the middle Western States before the courts there rather than to come up in some of our Eastern States.

At the same time I agree with the suggestion that Senator Sanborn raised as to the necessity of protecting the rights of the employes. I do not see how, on the basis of the whole scheme of property rights, we can take away from the employe his right to sue for damages when the injury is due directly and clearly to the negligence of the employer, without a constitutional amendment. But that difficulty can be met by a saving clause that in practice need not interfere very much with the efficiency of the system. That is the plan we adopted in our New York bill, merely putting in a clause to the effect that except where the accident was due to the personal negligence of the employer the compensation bill should apply, leaving it to the courts to decide just how far that would go. A safety clause of that kind in practice, in my opinion, would be largely disregarded. After this system came into operation, the advantage of getting a certain compensation would appeal to a great majority of injured workmen as preferable to the gamble of a law suit. So that from the point of view of the expense to the employer such a provision need not impose a serious additional burden along with the burden of the compensation law.

Mr. Parks (Massachusetts): In our State there is a bill before the Committee on Labor in the Legislature, of which I am a member, prohibiting the employment of minors under eighteen in trades which are dangerous to health. The committee decided to refer the bill to the State Board of Health, and an investigation by the State Board showed that continuous employment in such industries as the manufacture of cuff buttons and collar buttons, and so forth, was deleterious to the health on account of the small pieces of bone and other substances which had an injurious effect upon the health of the operatives. One factory in particular was alluded to at a hearing which we had on the matter, and after we passed the bill, and it became a law, I understand that that factory changed over their whole system, so that that particular industry instead of being as before this act was passed a dangerous industry to health, it became a safe industry to the health of minors. That was one effect of the naming of a particular industry as a dangerous trade, so far as health is concerned.

Prof. Ernst Freund (Illinois): It seems to me there are two things to be sought for in this matter, and that is, first, to find some principle of classification and then to see what portion of that principle we can reasonably hope to cover by legislation. When I look at this section it does not seem to me that the principle is what I could call a sound one, and I mean by that, one that appeals to our sense of justice. It is true that the English act is very comprehensive, but it has never appeared to me that the rule of the English law by which the head of a household is liable to a domestic servant for that domestic servant's carelessness is really a reasonable and just principle of law. Therefore we ought to have some particular reason for putting the liability upon the employer, and that reason might well be some particular element of danger. By calling an employment dangerous, I think, we do not make it dangerous even if now and then accidents occur in it. I think there are certain elements of danger which we could all point out, and that there are some elements of danger which we could all agree upon as making an occupation extremely hazardous.

We should also consider whether it would not be wise for the present to confine the liability to concerns of some magnitude. I know that it is very much questioned whether you can confine this extraordinary liability to large concerns, because it is open to the criticism that you simply make those pay who can afford to guard themselves through liability insurance. However, I think there is a real difference of principle based upon difference of size, because the relation of the small concern to the employe is totally different from that of the large concern, and it is only in the large concerns that these conditions prevail which, under modern conditions, seem to demand a shifting of the responsibility from the employe to the employer.

If you wish to be conservative, and not cover all the industries that have some element of hazard, you have to decide the very difficult question where to draw the line. When I read over the list of employments singled out in the compulsory bill recommended by the New York Commission, I was very much puzzled by the obvious fact that certain obviously hazardous employments were excluded, until I was informed that the principle was that of the non-competitive industry. Now, if you say that these industries are selected because they cannot get away from the law by moving across the state line, the discrimination looks objectionable; if, however, you say they are selected because they are not exposed to competition from industries operating under laws more favorable to the employer, the discrimination looks much more plausible. Even so, it is doubtful whether the principle of selection would approve itself to the Supreme Court of this State.

Dr. W. H. Allport (Illinois): It is evident we have in contemplation here two methods of arriving at a tentative solution of this question. (1) One method suggested by Professor Freund, which looked to me like a modification of the German method; that is, the method by which certain occupations have been gradually selected as being more and more hazardous, and gradually including the less hazardous occupations, until, I believe, in Germany the law covers all occupations and almost all employments. That is, it now covers farm employes, agricultural employes and the employes of our small establishments. (2) The other method suggested by Senator Sanborn, as a tentative law, follows more or less the English method, where the law was made right away to cover practically all employments; that is, the farming industry, domestic industry and other industries.

In considering this first clause of the tentative code, it would seem to me as though it would be possible to arrive at some definite definition. The English law has a section devoted entirely to the matter of definition, and defines employer, employe, dependent, and so forth, and some interesting questions have come up recently as to what are dependents under the English law. But the English law omits altogether to express what are hazardous employments. I will read the first section of Chapter LVIII of the Workmen's Compensation Act of 1906, which is now the law of England:

"If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the first schedule to this act."

That covers all forms of employment, but it does not define any employment as being hazardous or non-hazardous.

I suppose the basis of our effort in this tentative "workers' code" is to arrive at something which will go behind our present courts and bring us in line with the state and federal constitutions, which will give the power to a State to enact a law which under ordinary circumstances it would not have, and so, therefore, the effort is made here to define dangerous employments. It is interesting to note the ingenuity with which that point is reached; i. e., that any employment becomes dangerous after an accident happens. In the Wisconsin law the effort is made directly; there is no definition, so far as I can see, in the Wisconsin law nor in the New York law. There are certain employments which are defined as extra-hazardous and, therefore, subject to state regulation.

There is another point in Section 1 and that is this: "An employment in which there hereafter occurs bodily injuries to any of the employes arising out of." To again recur to the English law, and also the German law, the English law covers other points besides bodily injuries; it covers in certain schedules dangerous diseases and trades accompanied by dangerous diseases. The question, therefore, which would arise in my mind is whether or not we should not in this tentative law embody a consideration of certain dangerous diseases. I happen to be a member of the Illinois Commission on Occupational Diseases, and, therefore, perhaps would be expected to see that in the bill, but aside from that fact it does seem to me that that is a matter for careful consideration. That the bill should cover diseases arising from mining work, diseases from deposits in the lungs where men are engaged in the woolen industry and the lead industry and in the match industry, and certain other dangerous occupations which are dangerous not on account of the personal injuries sustained by the employes, but on account of the danger to the health.

Chairman Mercer: Section 12 says. "Provision defining the words and phrases, and covering all tenses, pronouns and both sexes," should be put into the bill when it is finally drawn.

Frank Buchanan (Illinois): I am a structural iron worker by trade and have worked at it for many years, and I guess there would not be much trouble in defining it as an extra-hazardous trade. We have a large number of men injured and killed at that trade, and because of that fact I have given this question of employers' liability much thought and study. For that reason I am here as an interested party to-day.

I am not in harmony with that part of the law as drawn up here which takes away the rights of a workman to bring an action in the courts. I take that view, first, because I believe it is the constitutional right of every worker to have action in the courts if he sees fit to do so. Secondly, I believe that when we do have that right of action, due to the negligence of an employer, that it is going to cause the employer to be more careful of how he conducts that particular kind of work, and the most important thing about this whole matter is to secure something that will act as a preventive of accidents.

Prof. John H. Gray (Minnesota): Would you be in favor, Mr. Buchanan, of a bill which gave the choice to the workmen?

Mr. Buchanan: No; I favor the English law that gives him the right to bring suit if he sees fit and then take the compensation if he fails in his suit.

I had hoped, in view of the fact that they have brought this law about in European countries, that some of our States might take it up in the same manner. We have a problem here to confront and overcome that they do not have in European countries, in that we are largely governed by the laws of the various States, which, of course, differ widely. In the manufacturing industry, that gives ground for an argument against one State creating a law that does not apply to another State, the claim being made that the competition is not equal, and, of course, there is some ground for that argument. I believe, however, it is going to take a long time and be a very difficult thing to bring about the necessary uniform legislation throughout the States. For that reason I had hoped that we might be able to find some way to create a law affecting only those industries that may not be in competition with the industries of other States, such industries as have been referred to, as the building industry and construction work, and so forth. There are more men killed and injured in that industry than any other two, but due to the fact that there is no competition in that industry it is possible to make a law affecting that and let it be tried out. It might be a starting place to find a way to cover the other industries without affecting those industries in each State which are competitive or obstructing them in any way.