State ex rel. Amerland v. Hagan

Bronson, J. This is an original application to this court to restrain and prohibit the workmen’s compensation bureau from applying, or in any manner enforcing, the Workmen’s Compensation Act in this state. The relator is a private citizen, alleging himself to be a citizen and taxpayer of Cass county, North Dakota. He is engaged in the real estate and loan business at Fargo, and employs two clerks, whose sole work, as he alleges, consists in keeping books, making records, writing letters and similar work, without any danger from any hazardous or dangerous work of any kind or nature whatsoever. He invokes the original jurisdiction of this court, claiming that the act by its term applies to him in his business; that the bureau are about to enforce the powers of this act as to him and deprive him of his constitutional rights; that multitudes of other citizens are likewise effected, and that the matter is of such public interest that it involves the franchises and prerogatives of the state and the liberties of its people. For the compensation bureau, the attorney general of the state has appeared and filed a motion to dismiss upon the grounds that the petition ■ fails to allege facts sufficient to constitute a cause of action. The bureau - itself, through one of its members, an attorney, has filed a return in the nature of a demurrer, which challenges the — 311 — jurisdiction of this court, the right of the relators to sue, and the sufficiency of the cause of action alleged. Furthermore, it has submitted, as its return, an answer, in the event of the demurrer being overruled, which alleges the legality and constitutionality of the Workmen’s Compensation Act, under which such bureau is operating pursuant to the legislative enactment in 1919. The attorney general has also filed a motion to strike from the records and files the answer of such bureau, upon the ground that the attorney general as such is the sole legal counsel of such bureau, and the only person entitled to appear in its behalf, and that such answer was filed without the consent, knowledge, or concurrence of such attorney general. It is indeed unseemly that contentious strife should be made before this court between parties appearing for the respondents. These matters of contention will be noticed only to the extent of stating that the time has not yet arrived in this state when any board or officer of the state does not possess the same right as any individual to defend itself or himself by itself or himself in the courts of this state. Furthermore, although it is perfectly obvious under the statute that the attorney general is the general and the legal adviser of the various departments and officers of the state government, and entitled to appear and represent them in court, that this does not mean that the attorney general, standing in the position of an attorney to a client, who happens to be an officer of the government, steps into the shoes of such client in wholly directing the defense and the legal steps to be taken in opposition or contrary to the wishes and demands of his client or the officer or department concerned. It appears from the return filed by the bureau that the relator is the president of the Amerland Company, a corporation which is engaged in real estate, loan, and insurance business in Fargo. That this corporation, through this relator as president, has made application, has paid the rate, and has filed under the terms of the Compensation Act, that it does employ two persons in the corporation offices. The return specifically alleges that the relator as an individual has made no application to comply with the Compensation Act, and that the bureau has made no attempt, either by communication or other — 312 — wise, to compel compliance. This is not denied by the relator. There are therefore serious questions raised concerning the jurisdiction of this court upon the record as well as upon the issues framed. However, upon the conclusions adopted by this court, which occasions, in any event, a dismissal of the petition herein, it is deemed proper to consider the merits of the issues raised concerning the constitutionality of the Workmen’s Compensation Act in view of the public importance of this act. The parties have filed excellent briefs, particularly •the brief of the relator is exhaustive and of great assistance to this court. The relator makes no contention concerning the wisdom, benefits, or the necessity of workmen’s compensation laws. The relator, however, seriously challenges, upon various constitutional grounds, both Federal and state, the legality of the act involved, principally, as follows: 1. That the act is violative of both the Federal and the state constitutional provisions concerning due process, in that such act by its terms applies to all callings whether the same be industrial employment or not, to all business whether it be termed hazardous or not. 2. That the act is violative of the Federal and state constitutional provisions with reference to acts impairing the obligations of contracts, or the freedom to make contracts, for the reason that the employer is prohibited from freely contracting with his employee concerning wages to be paid, without deducting or considering the deduction to be paid to the bureau under the terms of the Compensation Act. 3. That the act violates the provision of the state Constitution, which provides that no bill shall embrace more than one subject, which shall be contained in the title, for the reason that the act, in the title, covers only hazardous employment, whereas the act itself by its terms covers both hazardous and nonhazardous employment. 4. That the act is violative of both Federal and state constitutional provisions with reference to the equal privileges and immunities of citizens, in that it is discriminatory and compels one employer operating a nonhazardous, or even less hazardous, employment to contribute ■to a fund to compensate those that may be injured in a hazardous employment. — 313 — The act involved is known as House Bill No. 56, enacted by the legislative assembly in 1919, and approved in March, 1919, and effective as a law commencing July 1, 1919. In the title the law is stated to be an act creating a workmen’s compensation fund for the benefit of employees injured and dependents of employees killed in hazardous employment. The purpose of the act is specifically stated as follows: Section 1. The state of North Dakota, exercising herein its police and sovereign powers, hereby declares that the prosperity of the state depends in a large measure upon the well-being of its wage workers, and, therefore, for workmen injured in hazardous employments, and their families and dependents, sure and certain relief is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding, or compensation, except as otherwise provided in this act; and to that end all civil actions and civil causes of action for such personal injuries, and all jurisdiction of the courts of the state over such causes, are hereby abolished except as in this act provided. In § 2, employment is defined as including employment by the state and all political subdivisions thereof, and all public and quasi public corporations, and all private employments.' “Hazardous” employment means an employment in which one or more employees are regularly employed in the same business, or in or about the same establishment, except agriculture and domestic service and any common carrier by steam railroad. “Employment” means every person engaged in a hazardous employment under any appointment of contract of hire, or apprenticeship express or implied, oral or written, including aliens, and also including minors, whether lawfully or unlawfully employed, but excluding any person whose employment is both casual, and not in the course of the trade, business, profession, or occupation of his employer. Sections 6 and 1 provide that every employer shall contribute to such compensation fund in proportion to the annual pay-roll expenditure to persons subject to the act, in accordance with the rates prescribed by the bureau concerning employments classified with respect to their degree of hazard. — 314 — Section 6 further provides that an employer who contributes to the fund is thereby relieved from all liability for personal injuries or death sustained by his employees, and the persons entitled to compensation under the act, and that recourse only shall be had to such compensation fund for such injuries. Under the terms of § 11 employers who fail to comply with the terms of the act are not entitled to the benefits of the act during the period of such noncompliance, and are liable to their employees for damages sustained in the course of employment, free from common-law defenses of the fellow-servant rule, assumption of risk, or the defense of contributory negligence. The act by specific exemption (§2) excludes application to agriculture and domestic servants and any common carrier by steam railroad. Under § 12, any employer engaged in an employment not classed as hazardous may comply with the act by paying the premium, and avail of the privileges thereof. Under § 21 no agreement by an employee to waive his rights to ■ compensation under the act, nor any agreement to pay any portion of the premium to be paid by his employer, shall be valid, with the further provision that an employee who deducts any portion of his premium from the wages of his employee is guilty of a misdemeanor. The above-stated provisions comprise the legislative acts principally concerned in the consideration of the constitutional questions raised by the relator. The act in question is a compulsory insurance act. No contention is made that it is not within the police powers of the state to provide for a compulsory compensation act. It is contended, however, that it is not within the police powers of the state to compel employment, with little or no hazard involved, to be subject to a compulsory workmen’s compensation act, and that it is not within the province of such police power to make, by legislative definition, an employment hazardous, which, in fact, is nonhazardous. It is contended that the title of the act involved, as well as the purpose of it as stated, is for the protection of workmen injured in hazardous employment; whereas, the act itself is made applicable to every employment by the definition of a hazardous employment. It is further contended that this definition is — 315 — merely an indirect attempt by legislative fiat to make every employment a hazardous employment, and to make the act in question applicable by such circumlocution to every employment so designated by legislative will as a hazardous employment. The first question presented, therefore, is whether the legislative act, in terms at least, is applicable to every employment within the state. It is clear from the terms of the act that the term “employer” includes a person engaged in a hazardous employment; that the term “employee” includes a person engaged in a hazardous employment under a contract of hire in the trade, business, profession, or occupation of his employer; that a “hazardous employment” is an employment of such employee by such employer in the business of such employer. In terms, therefore, the act covers the employment and the business of the relator as a hazardous employment. Under the act in question the employment of the relator is termed hazardous. The relator alleges that his employment is nonhazardous; this is denied by the respondents. The relator makes no record to prove that in fact, the employment in question is nonhazardous. This court accordingly will not accept as conclusive or even as a presumption, that the mere alleged declaration of the relator that his employment is nonhazardous overrides the legislative declaration or proves thereby the arbitrary character of said legislative declarations. It is fairly well settled that the court will only hear objections to the constitutionality of laws from those who are themselves effected by its alleged unconstitutionality in the feature complained of. Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 576, 59 L. ed. 364, 368, 35 Sup. Ct. Rep. 167, 7 N. C. C. A. 570. It is contended, however, that the act, so extended by legislative definition as to include the employment of the relator, is arbitrary, unjust, unreasonable, and not to be included within the proper exercise of the police powers of the state. Again we recur to the oft-discussed and defined term,” the police powers of the state.” It is admitted that the subject of compensation insurance is within the police powers of the state. The question is the extent and reasonableness of the application. Freund in his work on the Police Power, § 143, states some of the questions involved in legislation of this character to protect persons — 316 — engaged in industry, such as, whether a danger exists and of sufficient magnitude; whether it concerns the public, and whether the proposed 'measure tends to remove it; whether it is possible to secure the object sought without impairing essential rights and principles. . Fundamentally the test is one of reasonableness, whether the act conserves or is destructive of inherent rights and constitutional guaranties. 12 C. J. 934. It is indeed interesting to observe, in legislation, the application, and in judicial interpretation, the recognition in increasing degree, of the police powers of the state, to alleviate the conditions and results that flow from the modern employment in the business world. With seeming reluctance and hesitation, yielding step by step to the demands and necessities of the modern environment, has the legislative expression, as well as the judicial interpretation, abandoned or deemed it proper to recognize innovations upon the settled common-law principles applicable in the relation of employer and employee when the latter was injured. Within recent years, in fact, within the last decade, the police powers of the state, as well as Federal legislation, has been applied to the problem of adequately enacting legislative rules and regulations for the protection of workmen. Now in a large number of states compensation acts of various kinds have been enacted, proceeding in the beginning, more upon the elective or even private insurance plan to the later and now increasing compulsory state insurance plans. It is no longer questioned that the state, in the exercise of its police power, has ample authority to establish by legislation departures from the old common-law principles affecting the employer’s liability, and to substitute rules and regulations for the compensation of personal injuries that may be sustained by employees in the business of his master. The demand of the public has been insistent and increasing for the exercise of this police power as a matter of public policy and justice in the business world for both the employer and the employee. For several years commissioners on uniform state laws have been proposing and are proposing a uniform workmen’s compensation act, compulsory in its features for all public industrial employment; .also a — 317 — uniform act for compensation for occupational diseases incurred while in employment. This police power was first seen in legislation and judicial interpretation concerning safety provisions and safety appliances acts for employees. Thence, in legislation and judicial interpretation, upholding abrogation of the common-law defenses for the employer, such as the fellow-servant rule and the comparative-negligence doctrine as applied to railroad employees engaged in extrahazardous callings. Thence, came along, with halting step almost, the early compensation acts, elective in principle, some supported .by private casualty insurance, made persuasive for the employer by abrogating certain common-law defenses if he did not elect to comply. Now there is at hand state compulsory insurance acts. If the act involved differs from those of other states, such as, for instance, the Washington Act, it is a difference in the extent of its application to employments, not in principle. It is needless to review or restate the reasons for the exercise of this police power. The adjudicated cases have stated them over and over again. It is interesting to note, however, the progressive judicial interpretation of the exercise of this police -power, as a reasonable modern necessity, in a scant ten years, as disclosed in the celebrated Ives Case in New York, 201 N. Y. 271, 34 L.R.A.(N.S.) 162, 94 N. E. 431, Ann. Cas. 1912B, 156, 1 N. C. C. A. 517, and as now stated in the last pronouncement of our United States Supreme Court in Arizona Employers’ Liability Cases (Arizona Copper Co. v. Hammer) decided on June 9, 1919 [250 U. S. 400, 63 L. ed. 1058, 6 A.L.R 1537, 39 Sup. Ct. Rep. 553]. No longer is it regarded without the police powers of the state to provide for compulsory insurance to protect workmen and their families from the hazard of modem industry. No longer is it considered that mere novelty in legislation is a constitutional objection. As stated in Arizona Copper Co. v. Hammer, supra: “Novelty is not a constitutional objection, since, under constitutional forms of government, each state may have a legislative body endowed with authority to change the law. In what respects it shall be changed, and to what extent, is in the main confided to the several states; and it is to — 318 — be presumed that their legislatures, being chosen by the people, understand and correctly appreciate their needs.” The question occurs, What is the legislative policy as expressed in North Dakota? What is the public policy as disclosed by legislative enactment and the action of the people in regard thereto ? Is there a demand and an- expressed need, as a matter of public policy, for such exercise of the police power of the state? It is clear beyond peradventure that the legislative will of North Dakota has declared that the prosperity of the state depends upon the well-being of his wage workers, and of their securing, when injured in hazardous employment, sure and certain relief, regardless of the question of fault, and that the state should exercise its police and sovereign powers in that regard. This act was adopted by an overwhelming vote of both branches of the legislative assembly. The same legislative assembly adopted other acts which created new legislation establishing and providing for the establishment of a state bank, a state mill, state terminal elevator, and more legislation of a novel character; some of this legislation was referred to the people by referendum petitions. This legislation so referred, though novel in its character and entering perhaps somewhat upon experimental fields, was ratified and approved by the people as a whole. This Compensation Act enacted similarly at a time when these other acts were enacted, and also covering a wider field than heretofore under many compensation acts in other states, nevertheless was not questioned by the people of this state by any requirement that it be referred to and considered by the electors of this state at the poles. It may well be said, therefore, that the legislative policy, in the exercise of the police powers as stated in the act, meet with not only the approval quite unanimously by the legislators, but also with the approval of the majority of the people of this state. But, again, it is argued that a proper exercise of the police powers does not warrant a legislative declaration that an employment is hazardous which in fact is nonhazardous. The question of whether compensation insurance may properly cover nonhazardous employment, if they may be so termed, is not before this court. The act involved concerns hazardous employments; the act by definition defines the classes that fall within the term “hazardous — 319 — employments.” The employment of the relator falls within the definition given. Strenuously the relator contends that his business is nonhazardous and his employees are without risk. In a manner, the relator assumes that the term “hazard” or “hazardous employments” must be referred to its application as formerly used in some compensation acts, where the hazard of the employee protected was extra, greater, or more exceptional than that which applies to an ordinary business or occupation. In ordinary acceptation or comprehension, a “hazard,” whether applied to contract relation, personal relation, or to golf or gambling, means and covers a risk or peril assumed or involved. Simply because other compensation acts, pursuant to the demands of public policy in other states, have extended only to certain classified and stated employments, extrahazardous in their nature, furnishes no ground for the contention that “hazardous” means “extra-hazardous,” where the legislative intent is plainly to the contrary. Can it plainly be held as a matter of law that the employees of the relator are under no hazard while employed? It is evident that, if one of such employees should be injured in the course of his employment, the relator, in an action brought against him for damages sustained, might or would have recourse to the common-law defense, that such employee assumed the risk incident to the business in which he was engaged. As Justice Winslow has pointed out in Borgnis v. Falk Co. 147 Wis. 327, 37 L.R.A.(N.S.) 489, 133 N. W. 209, 3 N. C. C. A. 649, there is now a vast difference between the simple risks involved in the relation of employer and employee in the business world when the common-law principles concerning the law of negligence came into recognition and the present day, intricate conditions of the modern world involving risks of every kind and character on every side of the employee while employed. In that case it is stated: “There are hazards in all occupations; indeed, they follow every man from the cradle to the grave. What constitutional requirement, either express or implied, clothes these court-made defenses with exceptional sanctity as to the less hazardous industries, and warns off from them the sacrilegious hand of the legislature ? We are referred to none, and we know none.” — 320 — Common observation, as well as ordinary reasoning, readily discloses that even the clerk or stenographer in the modern office engaged in the course of his occupation incurs risks vastly different than those applicable to similar situations in the comparatively similar business conditions that existed when the common-law principles concerning the law of negligence arose and were made applicable. Modern business conditions require a concentrated mind on the part of the employee on his work. His mind, instead of being required to be alert against dangers from without, is specifically required to be alert on the job. His employment subjects him to possible risks on every side. It is possible to conceive that the employees of the relator are subject to risk not only from dangers within the modern office building while at work, from apparatus and instrumentalities used by the employee, but also from injuries that may occur proceeding from without, such as through faulty construction of the building, snch as an injury that occurred in Chicago through a ship of the air crashing through the roof. His employee may be injured while on duty, wending his way through the crowds on the street or while ascending to his work on the elevator. It is no answer to state that this might likewise occur to one who is not so engaged or employed. It may likewise occur to one who is not ■engaged in an extrahazardous employment. It therefore is not within the province of this court to state as a matter of law that the employment of the relator is nonhazardous which the legislature has declared to be hazardous. As a matter of law this court is not in the position to declare that it is not within the legislative province to classify the business of the relator as possessing elements of hazard. By so doing the right is not necessarily taken away on the part of the relator to prove that in fact his specific business is not hazardous. There is no issue of fact before this court concerning this question. It appears, therefore, that the police powers of this state has been extended in the compensation act for the purpose of covering and protecting employees from injuries sustained in a hazardous employment, and that as a matter of public policy there is a well-recognized demand and need for legislation in this state through the exercise of such police powers, to cover employment as defined by the legislative will which are presumptively hazardous as a matter of law. The pertinent question — 321 — now presented to this court is whether such police power so exercised, as it effects the relator, runs contrary to the constitutional safeguards and inherent rights of the relator contained either in the Federal or state Constitution. It is the undoubted duty of this court to uphold the constitutional rights of the relator, and to nullify the exercise of such police power if it has been so exercised unreasonably and arbitrarily as to interfere with relator’s constitutional rights. It is entirely unnecessary to review at length the adjudicated cases concerning the extent of the exercise of this police power with reference to such constitutional guaranties. In the last expression of our United States Supreme Court in Arizona Copper Co. v. Hammer, 250 U. S. 400, 63 L. ed. 1058, 6 A.L.R. 1537, 39 Sup. Ct. Rep. 553, Justice Pitney has summarized, upon a review of the decisions, the principles of law that apply, by the following statement: “These decisions have established the propositions that the rules of law concerning the employer’s responsibility for personal injury or death of an employee, arising in the course of the employment, are not beyond alteration by legislation in the public interest; that no person'has a vested right entitling him to have these any more than other rules of law remain unchanged for his benefit; and that if we exclude arbitrary and unreasonable changes, liability may be imposed upon the employer without fault, and the rules respecting his responsibility to one employee for the negligence of another, and respecting contributory negligence and assumption of risk, are subject to legislative change.” In this regard, in applying a rule of interpretation Judge Winslow in Borgnis v. Falk Co. 147 Wis. 327, 37 L.R.A.(N.S.) 489, 133 N. W. 209, 3 N. C. C. A. 649, has stated as follows: “When an eighteenth century constitution forms the charter of liberty of a twentieth century government, must its general provisions be construed and interpreted by an eighteenth century mind in the light of eighteenth century conditions and ideals ? Clearly not. This were to command the race to halt in its progress, to stretch the state upon a veritable bed of Procrustes.” In the light of these principles and disclosed legislative and public — 322 — policy, this court does not deem the act so arbitrary and unreasonable in its application to the employee of the relator as to be termed viola-tive of relator’s constitutional rights under the due-process clauses of either the Federal or the state Constitution. The fact that the act is compulsory as to the relator is no ground of objection. The relator has no vested rights in the common-law defenses. Hawkins v. Bleakly, 243 U. S. 213, 61 L. ed. 683, 37 Sup. Ct. Rep. 255, Ann. Cas. 1917D, 637, 13 N. C. C. A. 959. The fact that liability without fault is created is neither novel nor subject to constitutional objection. New York C. R. Co. v. White, 243 U. S. 204, 61 L. ed. 675, L.R.A. 1917D, 1, 37 Sup. Ct. Rep. 247, Ann. Cas. 1917D, 629, 13 N. C. C. A. 943; Hunter v. Colfax Consol. Coal Co. 175 Iowa, 245, L.R.A.1917D, 15, 154 N. W. 1065, 157 N. W. 145, Ann. Cas. 1917E, 803, 11 N. C. C. A. 886. The act in terms confers a benefit upon the relator, for it relieves him from any liability for injuries that may be sustained by his employees during the course of the employment, if he subjects himself to the act. For him the act sets aside one body of rules and establishes another system of rules in lieu thereof. Arizona Copper Co. v. Hammer, supra. As against the contention that the act imposes a liability upon the relator concerning an employment wherein there is neither danger nor hazard, and therefore subjects his property to a taking without due process of law as well as being discriminatory and denying the equal protection of the laws, this court is not prepared to say as a matter of law that the legislative policy stating the employment of the relators to have therein elements of danger and hazard is so unreasonable and arbitrary that it should be considered violative of relators constitutional rights, in an absence of a showing of fact that such employment is in fact neither dangerous nor hazardous. Relator makes no complaint that the classification made or the rate prescribed by the bureau is unjust and unreasonable by relation to other employments. Necessarily the legislative branch must be allowed a wide latitude in determining what employments shall be included and the rates for each. When the acts of that branch become unreasonable and arbitrary, it then only becomes the duty of the courts to declare them beyond legislative authority. Jeffrey Mfg. Co. v. Blagg, 235 U. S. 577, 59 L. ed. 364, 35 Sup. Ct. Rep. 167, 7 N. C. C. A. 570. — 323 — The act is not subject to the constitutional objection that it interferes with the freedom of contract. The new statutory liability imposed in no manner affects the right of the relator to make a lawful contract with his employees. It is wholly proper that the legislature, in the proper exercise of its police power, prohibit the relator from contracting against his statutory liability, the same as heretofore it has provided with contracts against one’s negligence. New York C. R. Co. v. White, 243 U. S. 207, 61 L. ed. 676, L.R.A.1917D, 1, Ann. Cas. 1917D, 629, 13 N. C. C. A. 943; Mountain Timber Co. v. Washington, 243 U. S. 246, 61 L. ed. 700, 37 Sup. Ct. Rep. 260, Ann. Cas. 1917D, 642, 13 N. C. C. A. 927; Hunter v. Colfax Consol. Coal Co. 175 Iowa, 245, L.R.A.1917D, 15, 154 N. W. 1049, 157 N. W. 145, Ann. Cas. 1917E, 803, 11 N. C. C. A. 886. Likewise, in view of the interpretation given to the act, the constitutional objection made concerning the title of the act is untenable. The fact that the act excludes from its operation domestic and agricultural employees, as well as railroad employees, does not give rise to the constitutional objection of unreasonable and arbitrary discrimination as a matter of law. The fact that the entire field* subject to regulation has not been covered is not fatal. What trades and occupations may be regulated is ordinarily a matter for the legislature, in the absence of a distinctive showing of an unreasonable and arbitrary discrimination or classification. Similar exclusions in other compensation acts have been upheld. Hunter v. Colfax Consol. Coal Co. 175 Iowa, 245, L.R.A.1917D, 15, 154 N. W. 1054, 157 N. W. 145, Ann. Cas. 1917E, 803, 11 N. C. C. A. 886; New York C. R. Co. v. White, 243 U. S. 208, 61 L. ed. 677, L.R.A.1917D, 1, 37 Sup. Ct. Rep. 247, Ann. Cas. 1917D, 629, 13 N. C. C. A. 943; Jeffrey Mfg. Co. v. Blagg, 235 U. S. 576, 59 L. ed. 368, 35 Sup. Ct. Rep. 167, 7 N. C. C. A. 570; Matheson v. Minneapolis Street R. Co. 126 Minn. 286, L.R.A.1916D, 412, 148 N. W. 71, 5 N. C. C. A. 871. See L.R.A. 1917D, 53, note. Likewise the constitutional objection is untenable that the act improperly delegates judicial powers to the bureau to fix and prescribe rates. L.R.A.1917D, 55. It therefore follows that the terms of the act are not vulnerable to — 324 — the constitutional objections as raised by the relator. The petition of the relator is accordingly dismissed. Grace, J., concurs. Birdzell, J. In this matter I have the gravest doubt as to whether this court should exercise jurisdiction to determine the issues raised upon the plaintiff’s complaint. The plaintiff’s counsel very frankly state that the petitioner and those similarly situated, and his and their counsel (although who the latter are does not appear), are not before this court merely with a lawsuit, and that they do not desire to merely argue a case, but that they are rather desirous of presenting certain important legal questions. This frank statement by counsel, it seems to me, amounts almost to an admission that this suit was begun for the sole purpose of testing the constitutionality of a law, rather than for the purpose of vindicating or establishing a right of a client in a controversy wherein that right might be more or less jeopardized by a certain law. There are certain elements in the case which strongly suggest that the suit is merely a friendly one, framed without the active participation of representatives of the state or the workman’s compensation bureau, for the purpose of testing the constitutional validity of the Oompensation Act as against certain specified objections. Litigation of this character should not be encouraged, and, in my judgment, deserves the condemnation applied to such an attempt by Mr. Justice Brewer in Chicago & G. T. R. Co. v. Wellman, 143 U. S. 343-345, 36 L. ed. 179, 180, 12 Sup. Ct. Rep. 400, when he said; “It was never thought that by means of a friendly suit the party beaten in the legislature would transfer to the courts an inquiry as to the constitutionality of the legislative act.” An examination of. plaintiff’s brief discloses that the principal attack upon the law is based upon its alleged violation of the Federal Constitution. A Federal question is thus presented upon which the decision of this ■ court would not necessarily be final, and to refrain from taking such action as would enable the parties to test before the proper Federal tribunal the validity of the act under the Federal — 325 — Constitution would, be to place an obstruction in the path of one who may in good faith desire to have a determination- of his cause in the only court that can ultimately determine it according to law. For this reason I am unwilling to dispose of the case on the ground that the plaintiff does not properly invoke the provisions of the Federal Constitution. I am content to leave such questions for the solution of the tribunal that may or may not choose to make them decisive, and shall pass presently to the questions upon which our opinion is required. The main question, then, is the Federal question. Does the act under consideration deprive the plaintiff of liberty or property without due process of law? Before passing to a discussion of this question it seems necessary to observe that the plaintiff’s counsel do not complain of any rate that has been prescribed by the bureau as being excessive. The objection goes wholly to the question of the power to prescribe any rate that shall be applicable to the plaintiff as an employer. It is said not to be a question of dollars, but rather a question of right, and that the plaintiff has the same constitutional protection for $1 or the few dollars involved in the premium charge that he would have for a thousand. This, of course, is true, but it is to to be borne in mind that it characterizes the plaintiff’s attack and limits it to the power of the state to prescribe any rate according to which he may be compelled as an employer to contribute to an insurance or compensation fund for employees, applicable to reimburse them for injuries which they may sustain in connection with their employment. It is contended, in short, that the plaintiff’s business is not hazardous, and that he cannot be compelled to insure against the consequences of accidents to his employees. It is conceded that the plaintiff is within the definition of hazardous employment as prescribed in the law, but it is argued that legislative fiat cannot make an employment hazardous that is not in fact so. Whether or not the definition employed, in the act be a mere concession to the basis upon which compensation acts have been judicially upheld, we need not inquire. This case properly turns upon the underlying principle upon which similar laws have been sustained, and not upon any terminology that — 326 — might be more or less accidental due to the phraseology of the laws under consideration in other cases. Neither is the question presented that this act is unconstitutional, as involving arbitrary classification as between the plaintiff and other-employers who are not brought within its terms; that is, employers of domestic labor, agricultural labor, and ■ operatives of steam railways. No distinction in fact is attempted to be drawn between the law in question and other laws of similar character that have been upheld as against the contention that they involved arbitrary classification, discrimination, delegation of legislative or judicial power, or lack of uniformity. Our attention is directed primarily and almost exclusively to the question as to the right of the legislature to require employers such as the plaintiff to contribute to an insurance fund for the benefit of employees injured in the course of their employment. In considering this question as primarily a Federal question, there is little need to go beyond the last expression of the Supreme Court of the United States. In the case of Arizona Employers’ Liability Cases (Arizona Copper Co. v. Hammer) 250 U. S. 400, 63 L. ed. 1058, 6 A.L.R. 1537, 39 Sup. Ct. Rep. 553, that court sustained an employer’s liability law of the state of Arizona which imposed liability upon the employer for death or injury caused by any accident arising in the occupation regardless of fault on the pond of the employer. This statute clearly changed the rule of common-law liability, and gave the employer no reciprocal advantage, as his liability was unlimited. (The law under consideration here gives for the premium a reciprocal advantage to employers. It relieves them from further liability.) In answer to the suggestion that the Arizona act might be extended by construction to nonhazardous occupations, it was stated in the main opinion by Mi*. Justice Pitney: First, that the occupations in which the actions arose were indisputably hazardous, and hence the defendants had no right to raise the question; and, second, that employers in nonhazardous occupations were in little danger from the act, as it imposed liability only for accidental injuries attributable to the inherent dangers of the occupation. It was not indicated to what extent the judiciary could properly go in determining what was or was not a hazardous occupation, but the implication from the sec — 327 — ond answer is that any employment in which an accident occurs might be considered ipso facto hazardous to that extent and the employer be made liable without fault. Similarly, it might be suggested here that, inasmuch as the employer raises no question upon the amount of premium he is required to pay, the premium must be assumed to have been fairly apportioned to whatever risk there may be in the particular employment. The dissenting members of the United States Supreme Court, without exception, regard the logic of the majority opinion as supporting the proposition that the element of hazard in the employment, as the term is commonly understood, is not essential to the validity of legislation which in one form or another fixes a liability upon the employer without his fault. In fact Mr. justice MeKenna not only proposes the query as to whether the logic of the majority will support an extension of the principle to nonhazardous employments, but he suggests that the very act in question in that case applies to all manufacturing without qualifying words which would distinguish between hazardous and nonhazardous manufacturing. And Mr. Justice Mc-Eeynolds asserts in his opinion that the grounds suggested to support the Arizona statute “amount in substance to asserting that the legislature has power to protect society against the consequences of accidental injuries, and therefore it may impose the loss resulting therefrom upon those wholly without fault, who have afforded others welcomed opportunities to earn an honest living under unobjectionable conditions.” It seems to me that these interpretations of the majority opinions are inescapable. If correct, the highest judicial authority has given its sanction to a construction of article 14 of the Federal Constitution that permits the states to establish at the expense of employers insurance funds to compensate for all occupational casualties resulting in injury or death to employees. From the standpoint of the public welfare or the individual welfare of the employee or his dependents, it is indeed difficult to see why lines of demarkation should be drawn, except for purposes of practical administration, on the mere estimate of probable casualties, excluding employments showing slightly fewer casualties than a basic minimum. To my mind it seems wholly unimportant whether the — 328 — legislature or the bureau employs a definition that will be applicable to an employer in an industry in which it may safely be estimated from statistics that within a given time one in one hundred employees will be killed and three injured, or whether the definition bevone applicable to an industry or employment in which the estimate be one and three, respectively, in a thousand or ten thousand. There would be ten and one hundred times the hazard, respectively, in the latter cases that there is in the first. Prom the standpoint of the public or of the dependents of the employee who happens to be the one in a thousand, there is no logical basis for distinction. Granted the constitutional power of the legislature to provide insurance at the expense of employers for the benefit of employees, is it for the courts to say with what occupations the legislature shall stop or what degree of hazard there must be in a particular employment to enable the legislature to authorize the inclusion of the employees? Of course it is assumed that an appreciable hazard must exist, and that reasonable and appropriate measures are provided to effect the desired end. But beyond this the matter would seem to be entirely for the legislature. And in providing measures, shall the legislature be confined to unbending definitions, or is there room for a policy that will admit of greater flexibility of application as experience demonstrates the need? Counsels’ argument that the legislative definition amounts to a legislative fiat declaring an employment to he hazardous that is not in fact so ignores the operative plan of the law. The plaintiff is not injured by a mere definition. A rate must first be promulgated applicable to him, and this can only be done after the classification of employments with respect to hazard is made by the bureau under § 1 of the act. Presumably this has been done. If the plaintiff’s constitutional rights have been violated, therefore, they have been violated by the bureau, but yet we are not asked to review this action. The bureau, acting under the section referred to, could clearly determine that there is no hazard in a particular employment and consequently no premium payable. They could determine, possibly with a fair degree of accuracy, based upon experience, the degree of hazard involved in employments that are commonly regarded as involving no particular element of danger. Methods of accounting and compilation — 329 — of statistical data are directed which should tend to greater accuracy in this respect. We cannot assume that the bureau has not been or will not be guided by such experiences as have a proper bearing on the question of rates. It follows from this that the property of the plaintiff is not taken without due process so long as the rate demanded is based upon a real hazard and properly prorated. If the plaintiff desires to raise an issue of fact as to the findings of the bureau in this respect, such proceedings should be had as would put the court in a position to ascertain the fact. It is clear, then, that the legislative definition of hazardous employment does not of itself obligate the plaintiff to contribute to the fund, and it must be assumed that the bureau has or will do its full duty. At any rate this court cannot take judicial notice that its findings are or will be erroneous. Upon the question as to whether the subject of the act is expressed within the title within § 61 of the state Constitution, it seems to me that it is entirely clear that the subject is adequately expressed. Bor the foregoing reasons I am of the opinion that the relief prayed for should be denied. In view of the fact that a majority of the court does not adopt any opinion as expressing the views of the court, I may properly add that I do not agree to the syllabus, except to the extent indicated in the foregoing opinion.