Evanhoff v. State Industrial Accident Commission

154 P. 106, 78 Or. 503, 1915 Ore. LEXIS 70

• Court: Oregon Supreme Court
• Decided: December 28, 1915
• Status: Published

Opinions

Mr. Justice McBride

delivered the opinion of the court.

1, 2. The complaint and the able and ingenious brief of counsel for plaintiff point out 19 alleged specific violations of the Constitution of this state, all committed within the compass of a single act, and then, piling Pelion on Ossa, specifies four alleged violations of the Constitution of the United States, perpetrated by means of the same statute. It would he, indeed, a reflection upon republican government if a hill which is so permeated with the rottenness of unconstitutionality could pass both houses of the legislature with only three dissenting votes, and thereafter be indorsed by the people upon a referendum by a majority of more than two to one. It may be premised that, assuming every allegation as to the unconstitutionality of the act is well taken, plaintiff has shown but one reason why he should be permitted to bring this suit, and that is because he is a taxpayer of the state, and that by the unlawful expenditure of the moneys appropriated by the state under the provisions of the act in question his financial burdens as such will be increased: State ex rel. v. Metschan, 32 Or. 372 (46 Pac. 791, 53 Pac. 1071, 41 L. R. A. 692).

The allegations that the defendants threatened to deprive plaintiff of the right of trial by jury and wrongfully claim to have power to determine the amount that plaintiff shall recover, etc., have no force whatever. If plaintiff has a right to sue in the courts, there is manifestly no method whereby the defendants can prevent his so doing. If they have no right to determine his case for any reason, there is no law which compels him to present his claim to them or to abide their award if made against his remonstrance. He can test their authority by ignoring them and bringing his action either at common law or under the Employers’ Liability Act as the fact may warrant. The sufficiency of the facts in relation to the injury to permit a recovery under either aspect, not being relevant to the matter in controversy, will not here be discussed.

3. Under the first point made in the brief are included several objections to the title of the act, which' is as follows:

“An act creating the State Industrial Accident Commission and providing an Industrial Accident Fund, making an appropriation for such fund and providing for the administration of the terms of this act, providing for the collection and disbursement of funds for the benefit, compensation and care of workmen, prescribing the duties of employers and workmen subject to this act, and providing penalties for a violation of the terms of this act, and abolishing in certain cases the defenses of assumption of risk, contributory negligence and the negligence of a fellow-servant in actions for personal injury and death.”

Concerning this objection counsel in their brief observe:

“It is plain that the act provides a system of jurisprudence for the administration of all questions relative to injuries received by workmen in the course of their employment, save those specified in the act itself. It also creates a board; a fund, and makes appropriations therefrom; provides: (a) For its administration; (b) the collection and disbursement of its funds; (c) the duties of employers and employees; (d) penalties for its violation; and (e) abolishes certain defenses in such cases.”

In our view every matter referred to in the title is germane to the purpose of the act. Its object is to provide a system of actual voluntary insurance for injured workmen. As a necessary part of the system, a fund is to be raised whereof the employer shall contribute the larger part, the employee a small part, and the state a small portion. It would be absurd and wholly outside the intent of the Constitution to require that there should be one act to create the Commission and define its duties, another to prescribe the amount the employee should contribute, a third to fix the amount that the state should contribute, and a fourth to appropriate the money thus defined to be the state’s contribution. Such red-tape methods of accomplishing an object justified by the highest considerations of public policy and humanity were never contemplated by the framers of the Constitution.

“It is sufficient if the general subject of the act is contained in the title and is a fair index to the legislation proposed, and if all the provisions of the act are germane to such subject and do not relate to matters wholly foreign thereto”: In re Willow Creek, 74 Or. 592, 615 (144 Pac. 505).

4. It is also urged in the objection now being considered, and elsewhere in the able brief of plaintiff, that the act in question attempts to confer judicial and legislative functions .upon the Industrial Accident Commission, and is therefore in contravention of Section 1, Article III, of the Constitution, which is as follows:

“The powers of the government shall be divided into three separate departments — the legislative, the executive, including the administrative, and the judicial; and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this Constitution expressly provided.”

This identical question is passed upon adversely to plaintiff’s contention in Re Willow Creek, at pages 610, 611, of 74 Or., and that opinion and the authorities there cited are so conclusive as to render further discussion of the subject unnecessary.

5. Neither is it necessary to discuss the question as to whether the legislature had power to confer judicial functions upon the Commission. Section 9, Article VII, of the Constitution before amendment provided:

“All judicial power, authority, and jurisdiction not vested by this Constitution, or by laws consistent therewith, exclusively in some other court, shall belong to the Circuit Courts; and they shall have appellate jurisdiction and supervisory control over the county courts, and all other inferior courts, officers, and tribunals. ’ ’

As originally adopted, Section 1, Article VII, of the Constitution reads as follows:

“The judicial power of the state shall be vested in a Supreme Court, Circuit Courts, and County Courts, which shall be courts of record, having general jurisr diction, to be defined, limited, and regulated by law, in accordance with this Constitution. Justices of the peace may also be invested with limited judicial powers, and municipal courts may be created to administer the regulations of incorporated towns and cities. ’ ’

In 1911 this section was amended so as to read:

“The judicial power of the state shall be vested in one Supreme Court and in such other courts as may from time to time be created by law. The judges of the Supreme and other courts shall be elected by the legal voters of the state or of their respective districts for a term of six years, and shall receive such compensation as may be provided by law, which compensation shall not be diminished during the term for which they are elected ’ ’: Laws 1911, p. 7.

It would appear that the power of the legislature or of the people to confer judicial powers upon any tribunal which it or they may select is, by the force of this amendment, practically an unlimited one so long as the different functions of government, executive, legislative and judicial are not so blended as to contravene Section 1, Article III, of the Constitution, which, as shown in the case last cited, is not the case here.

6. It is next contended that the act is void in that it violates Section 10, Article I, of the Constitution of this state, which is as follows:

“No court shall be secret, but justice shall be administered openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.”

And that also it is in violation of Section 1 of the Fourteenth Amendment to the federal Constitution, as it deprives a person of property without due process of law. Neither of these positions is well taken. Plaintiff’s argument proceeds upon the theory that the act establishing the Industrial Accident Commission attempts to establish a court for the trial of causes without a jury, which it does not, and to compel workmen and employers to adjust their grievances without their consent, which is contrary to the whole spirit and intent of the act. As before noted, the act leaves the employer free to accept the provisions of the act or to reject them as he may see fit. If he gives notice that he rejects them, he is left to protect himself from actions for personal injury by litigation in the courts. It is true that the act has swept away certain defenses heretofore available; but, as this could have been done in any case, he has no legal reason to complain. If he sees fit not to avail himself of the provisions of the act, he may still protect himself by giving notice that he rejects its provisions. It is not compulsory, and the arguments that apply with greater or less force to compulsory acts are here inapplicable. The state says to the employer and employee alike:

“We present to you a plan of accident insurance which you may accept or reject at your own pleasure. If you accept, you must be bound by its terms and limitations; if you reject it, the courts are open to you with every constitutional remedy intact. Take your choice between our plan and such remedies as the statute gives you.”

Discussing certain features of the Iowa Compensation Act, limiting the amount to be allowed for certain injuries, Mr. Justice McPherson, in the case of Hawkins v. Bleakley (D. C.), 220 Fed. 378, 381, says:

“The first twenty-two sections of this lengthy statute fix the liability of the employer and the rights of the employee. A scale of compensation is fixed and made certain. Each party can come within the statute or remain outside of the statute. Each party has his election. Many of the states for many years have had statutes fixing the liability with precision in cases of death, and in no instance has any court held such statute invalid. And why a statute cannot fix with certainty the damages to be allowed in case of the loss of an arm, leg, eye or other injury is not perceived, and counsel fail to state any legal or constitutional objection thereto.”

7. It is further contended that the act is unconstitutional because it requires the employee to elect, at the time of his employment and in advance of all injuries, whether or not he will come under the terms of the act. Just What provision of the Constitution is violated we are not informed. It is a general principle that a person may, at any time, waive his right to bring an action upon a money demand unless there is a constitutional or statutory provision prohibiting it, or it is clearly against public policy to permit him to do so. So it has been often held that a contract whereby an employer attempts to stipulate- against the consequences of his own negligence is void because contrary to public policy; but what is or is not public policy is, in its last analysis, a legislative question, and we have yet to find an instance where a statute has been declared void because in the opinion of the court it would have been better policy to have left it unenacted. This view of the act disposes of many of the constitutional questions raised by counsel. The state proposes to employers and employees an accident and life insurance scheme, and offers it to them in lieu of litigation. It does not compel them to become participants in it or to contribute to it, but if they voluntarily choose to do so, they waive any other remedy, because the statute provides as a part of the scheme that they must do so; and, as before observed, by permission of the statute a party may waive or limit the quantum of his compensation for any possible prospective injury. The noncompulsory feature of the act may be said to eliminate most of the objections urged upon constitutional grounds.

8. One objection, however, which is urged with much plausibility, is that the act violates Section 7, Article IS, of the Constitution, which is as follows:

“Laws making appropriations for the salaries of public officers and other current expenses of the state shall contain provisions upon no other subject.”

The evident purpose of this provision was to prevent matters foreign to the general purpose of appropriation bills being attached to them as riders, thereby taking advantage of the necessity of the state for money to defray its current expenses and to pay its officers to pass measures that perhaps would otherwise have been defeated. The instant act is not primarily an act to appropriate money to pay salaries or other current expenses. It is not an appropriation bill in the sense that bills providing for general current expenses or salaries of the constitutional officers of the state are such. We have been cited to no case, in this state or elsewhere, where a provision similar to the one at bar has been construed in accordance with counsel’s contention, and in this state contemporary legislative construction has been the other way. Thus, at the first regular session of the legislature held after the adoption of the Constitution, we find an act, entitled “An act for the appointment of a librarian and defining his duties” (Laws 1860, p. 64), was passed, creating the office of state librarian, defining his duties, prescribing the hours during which he should keep the library open, and appropriating $400 annually for the purchase of books and $150 annually for his salary. The president of the Senate, the Speaker of the House, and many members of both houses had been members of the constitutional convention. From that time to the present it is safe to say that there has not been a session of the legislature where similar acts have not been passed. Some of them are: The Food and Dairy Commission Act; the Immigration Commission Act, passed in 1885; the Fish Commission Act, in 1887; the State Board of Horticulture Act, in 1895; the Bureau of Labor Statistics Act, in 1903; the act creating the office of State Engineer, and providing a water code, in 1905; the Bank Examiner Act, the Railroad Commission Act, and the Sheep Inspector Act, in 1907; the act creating the office of insurance commissioner and a fund known as the “insurance fund,” and the act creating our present water hoard, in 1909; the act creating the state forestry board, and the act providing for the construction of a branch insane asylum in Eastern Oregon, in 1911; the act providing for a state industrial school for girls; an act creating an Industrial Welfare Commission; an act creating the state highway commission; and an act creating the state livestock sanitary board, in 1913. Most of these acts fixed the salary or compensation of the officers designated to carry out their purposes and appropriated the money necessary to pay such salaries -and to accomplish the general objects for which the law was enacted. An examination of the late session laws of other states having identical or similar provisions in their Constitutions shows that the same legislative practice has been pursued in these jurisdictions, so that it may be said practically the uniform contemporaneous construction of this section of the Constitution is that it does not prohibit the legislature from passing an act designed to effect a particular purpose and in the same act to provide the funds necessary to accomplish- that purpose. While such a construction will not be permitted to overturn and render nugatory a clear provision of the Constitution, in cases where the meaning of a clause in the instrument is capable of two interpretations, it is entitled to great weight. It was remarked by Judge Cooley:

“But where there has been a practical construction, which has been acquiesced in for a considerable period, considerations in favor of adhering to this construction sometimes present themselves to the courts with a plausibility and force which it is not easy to resist. Indeed, where a particular construction has been generally accepted aS correct, and especially when this has occurred contemporaneously with the adoption of the Constitution, and by those who had opportunity to understand the intention of the instrument, it is not to be denied that a strong presumption exists that the construction rightly interprets the intention. And where this has been given by officers in the discharge of their official duty, and rights have accrued in reliance upon it, which would be divested by a decision that the construction was erroneous, the argument ab inconvenienti is sometimes allowed to have very great weight”: Cooley, Const. Lim. (7 ed.), p. 102.

9. All the considerations suggested by the learned jurist exist here. We sum up the situation: (1) The construction to be placed upon the clause in question is not clear; (2) the construction above indicated has been followed and acquiesced in by the legislature and the people from the adoption of the Constitution until the present time; (3) that construction was adopted by legislators who had participated in the framing of the Constitution and who may fairly be presumed to have known the intent with which it was adopted; (4) to now hold that the acts so passed are void would be attended with such disorganization of public business and destruction of private and pecuniary rights which have grown up with faith in the validity of the acts which would be affected by a decision favorable to the contention of plaintiff as would create widespread confusion and disaster. Our Irrigation Code, Minimum Wage Act, Public Utilities Act, and much of the legislation heretofore alluded to would be thrown into hopeless disarray. Under the act now being considered widows, orphans and helpless cripples who have taken advantage of its provisions would be deprived, in many instances, of their means of subsistence, and be thrown upon the cold charities of the world. These consequences are too momentous to. be invoked by a new construction of a doubtful provision of the Constitution. The rule is well settled that a statute will not be held unconstitutional where a reasonable doubt exists as to its invalidity: Cline v. Greenwood, 10 Or. 230; Simon v. Northup, 27 Or. 487 (40 Pac. 560, 30 L. R. A. 171); State v. Cochran, 55 Or. 157, 180 (104 Pac. 419, 105 ); Libby v. Olcott, 66 Or. 124 (134 Pac. 13); In re Willow Creek, 74 Or. 592, 615 (144 Pac. 505).

10. It is further urged that the act is unconstitutional because the original bill 'was amended in many-particular s during its progress through the. legislature, and the whole bill as amended was not read by sections on three several days, as required by Section 19, Article IV, of the Constitution. Such has never been the practice in this state, and what little authority can be found on the subject is contrary to plaintiff’s contention: People ex rel. v. Wallace, 70 Ill. 680. In that case the court says:

“It is also objected that the tenth section of the act was not constitutionally adopted, because it was ingrafted as an amendment whilst the bill was being-considered, and was not read on three several days in the house adopting it as an amendment. We are clearly of opinion that the requirement does not apply to an amendment, and the objection cannot prevail.”

Other objections are urged, but they are simply variations of those already considered. Upon the whole case we are of the opinion that the act violates no prescription of the Constitution of this state or of the United States, and that it was properly passed and is in every respect a valid law. While experience may suggest from time to time changes and amendments, they are in line with twentieth century progress. Before its enactment one workman out of three received a large compensation for his injuries by an action at law, while the remaining two were defeated and got nothing. Now every workman accepting its provisions receives some compensation if injured; and, taken as a whole, it will be found that more money in the way of compensation is received by the whole body of injured workmen than by the inadequate remedies afforded in the courts. It .has been a boon to the employers, the employed, and the community, which, latter could formerly only offer to the injured laborer the charity of the almshouse instead of that just compensation which he may now receive without the humiliation of pauperism or the loss of self-respect.

The decree of the Circuit Court is affirmed.

Affirmed.

Mr. Justice Eakin took no part in the consideration of this case.