Industrial Commission v. Crisman

ROSS, C. J. This action was brought by Crisman as a taxpayer to restrain the Industrial Commission, — 580 — the State Auditor, and State Treasurer from putting into operation the Workmen’s Compensation Law enacted by the fifth state legislature (chapter 103, Laws 1921), upon the claim or ground that it violates the state Constitution in requiring the employee to elect before he is injured whether he will accept compensation under said act or not. A temporary injunction was issued and, upon final hearing, the court permanently enjoined defendants from doing or taking any steps toward putting said act into operation. From this judgment the defendants have appealed. We will confine ourselves to a disposition of the question submitted to the trial court and brought here for review. Section 60 of the act provides that employees in designated hazardous occupations shall have the option to accept the compensation as fixed in the act, or to reject its provisions and retain the right to sue. If the employee elects to reject the compensation, it is made his duty to serve a written notice in duplicate upon the employer to that effect, which notice must be filed with the employer prior to injuries sustained. An employee in such hazardous occupations failing to serve such notice prior to injury is conclusively presumed to have elected to take compensation. It is made the duty of an employer engaged in hazardous occupation designated to post and keep posted in a conspicuous place on his premises, in all languages spoken by his employees, and available for inspection by all workmen, a notice in substantially the following form: “All employees are hereby notified that, in the event they do not specifically reject the provisions of the Arizona Industrial Commission Act, they are deemed by the laws of Arizona to have accepted the provisions of such act and to have elected to accept compensation under the terms of said act, and that, under the terms of said act, employees shall have the right to reject the same by written notice thereof — 581 — prior to any injury sustained, and that blanks and forms for such notice are available to all employees at the office of this company.” If an employee is injured while the above notice is not posted, or while the employer has not on hand blanks and forms of written notices of rejection of compensation, he may maintain other action against the employer under the laws of this state, or accept compensation, at his option. The plaintiff claims that section 60 violates the Constitution in requiring the employee to elect to accept compensation under the compensation law before his injury, and insists that under the Constitution the employee may postpone his election of remedy until after his injury. Quoting from his brief, he says: “The Constitution of the state inhibits the enactment of legislation requiring an employee to elect before injury the remedy he will pursue in the event of his injury in the course of his employment.” In support of this proposition, plaintiff cites section 8 of article 18 of the Constitution, and the decision of this court in the Ujack Case, 15 Ariz. 382, 139 Pac. 465. The provision of the Constitution referred to reads as follows: “The legislature shall enact a Workmen’s Compulsory Compensation Law applicable to workmen engaged in manual or mechanical labor in such employments as the legislature may determine to be especially dangerous, by which compulsory compensation shall be required to be paid to any such workman by his employer, if in the course of such employment personal injury to any such workman from any accident arising out of, and in the course of, such employment is caused in whole, or in part, or is contributed to, by a necessary risk or danger of such employment, or a necessary risk or danger inherent in the nature thereof, or by failure of such employer, — 582 — or any of Ms or its officers, agents, or employee, or employees, to exercise due care, or to comply with, any law affecting such employment: Provided, that it shall be optional with said employee to settle for such compensation, or retain the right to sue said employer as provided by this Constitution.” In the Ujack case we construed the above constitutional provision as permitting the employee to defer his election of remedies until after he was injured. The present law imposes the duty upon the employee of rejecting compensation before injury, and makes his failure to do so conclusive evidence of his acceptance thereof in lieu of all other remedies. If the view expressed in the Ujack case was correct and sound, the present Compensation Act cannot stand. We realize that, if the employee may not be required to elect his remedy before injury, it is not possible for the legislature to pass a compensation law such as exists in nearly every state of the union. If he is permitted by the Constitution to postpone his election until after injury, and then elect to settle for compensation or retain his right to sue the employer for negligence, or under the Employers’ Liability Law (Civ. Code 1913, pars. 3153-3162), it is not a substitutionary remedy, but an additional remedy. Impressed as we have been with the desirability and necessity for a just and fair compensation law in tMs state to take the place of the burdensome, expensive, and litigious remedies for injuries and death in hazardous occupations, we have looked into the Ujack case with great care, thinking that we might possibly have taken a wrong view of the constitutional provision in that case, and that, upon a reconsideration, we would so conclude. We would have been gratified to overrule the Ujack decision and sustain the present legislation for two good and sufficient — 583 — reasons: First, it would have given to the industries of the state a compensation law, and, at the same time, second, allowed us to uphold the action of a co-ordinate bi'anch of government. We have, however, come to the conclusion that the decision in the Ujack case is sound; that, as therein stated, the employee may await his injury and then determine if he will accept compensation or retain the right to sue his employer, and that this right of choice is a constitutional right — one the legislature cannot take away from, him by requiring that he elect his remedy before injury. In addition to the reasons set out in the opinion in the Ujack case for such a holding, we have one other reason, which is as follows: We have before us the journal of the constitutional convention, and the discussion therein on section 8 of article 18 shows that the members of the convention had before them the New York Compensation Law of 1910 (Laws 1910, c. 674), and that the idea contained in the proviso to section 8 was borrowed therefrom. The New York act did not take the place of other remedies, but was in addition to them, the workman having his option after the accident either to accept compensation under the act or assert his rights under other laws; but if he, or his personal representatives, in case of death, availed themselves of the Compensation Act, “either by accepting any compensation hereunder in accordance with section 219-a hereof” (being the schedule section), it would constitute a bar to any other remedy. The scheme under the New York act was that the employee await his injury and then elect his remedy. “By accepting” statutory compensation he barred himself from recovering in other action. Under the scheme contemplated by our Constitution, he can bar himself from- other remedies by settling for the statutory compensation, and until he settles — 584 — for such compensation he retains the right to sue. The discussion by the members of the convention on the proviso tq section 8, although short, is very suggestive. It all shows that the effort was to have the Arizona Compensation Law permit the employee to postpone his election of remedies until after injury, following in that respect the New York act. The language employed in the proviso to express that desire seems to be fairly well suited to the purpose. Independent of what the discussion in the constitutional convention disclosed, in the Ujack case we came to the conclusion that the proviso in section 8 permitted the employee to await his injury and settle for compensation, and in Behringer v. Inspiration Cons. Copper Co., 17 Ariz. 232, 149 Pac. 1065, and in Inspiration Cons. Copper Co. v. Conwell, 21 Ariz. 480, 190 Pac. 88, this ruling was approved. In section 90 of the present act it is provided that if section 60, requiring the employee to elect his remedy before injury, should be held invalid or unconstitutional, the entire act and every section thereof should be invalidated. We have come to the conclusion that section 60, in requiring the employee to elect in advance of his injury his remedy, violates the Constitution,, and it necessarily follows that the judgment of the lower court should be and is hereby affirmed.