(Concurring.) — I concur in the opinion of the Chief Justice. The importance of the question presented is such that I shall give briefly some additional reasons for so doing.
This action is here for the sole purpose of testing the constitutionality of the Workmen’s Compulsory Compensation Law enacted by the last legislature. The only question presented is whether the act comes within the terms of the constitutional mandate contained in section 8, article 18, of our fundamental law. Plaintiff’s grievance is that section 60 thereof compels an employee to exercise before injury the option guaranteed him by the Constitution; that is, requires him to decide in advance of injury whether he will accept the compensation provided in the law in the event of injury or retain his right to sue under other provisions of the Constitution. He contends that the Constitution limits the legislature to the enactment of a law reserving to the employee the right to elect after injury whether he will accept compensation or pursue another remedy. Defendant admits this to be true under the decisions of this court, but contends that the Compensation Act, instead of requiring a final election before injury, merely permits it, and is therefore not violative of the constitutional provision. In view of this admission, the only question to be determined is whether the act permits election after injury.
Section 8, article 18, Constitution of Arizona, reads as follows:
“The legislature shall enact a Workmen’s Compulsory Compensation Law applicable to workmen engaged in manual or mechanical labor in such em*587ployments as the legislature may determine to he 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, or any of his or its officers, agents, or employee, or employees, to exercise due care, or to comply with any 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.”
Section 60 of the act provides that it shall be optional with employees in certain designated occupations to accept compensation as fixed by the act or reject it and retain the right to sue. Rejection of compensation is accomplished by the employee’s notifying the employer in writing before injury to that effect, while acceptance is brought about by his taking no action at all; his failure to notify the employer of rejection itself constitutes, under the act, an election to take compensation.
It is obvious that at the very threshold of his employment the employee is met with the necessity of making a choice as to his remedy in case of injury. He cannot avoid it, for if he does not by affirmative action reject compensation the law accepts it for him. He may reject it any time before injury, but until he does the law has chosen it for him. Appellant contends that in rejection before injury the choice is not final, but there still remains the right to make another choice after injury between compensation and other remedies. In other words, rejection before injury is necessary, but only for the purpose of preserving the right to make a final election after injury. It *588is conceded that the right of election is personal. Who, then, is to elect finally in case of sudden death after rejection before injury? How is one who is suddenly killed, after having preserved by rejection before injury his right to make a final choice, to enforce the right he has preserved? Yet it is claimed that one of the main purposes of the act is to provide for dependents in death cases. This suggestion alone discloses the fallacy of such a contention, for, if an election to reject before injury does not preserve the right in all cases, death as well as injuries only, it cannot he said that election after injury is preserved, for only a part of those who reject merely to keep alive their right to a final choice will be able “to reap the harvest they have sown.” As I see it, only one election is provided for and that before injury. The general provisions relied on to confer this right cannot avail in the face of this definite requirement in section 60 of the act. The enforcement of a claim for compensation after the employee has elected to reject it could undoubtedly be defeated by proof of his rejection.
If it be, then, that appellant’s main contention— that an election of remedy after injury is preserved— is not well founded, the invalidity of the Compensation Act is apparent, unless the construction heretofore placed on section 8, article 18, of the Constitution, by this court is discarded. It is upon the Constitution itself, and this court’s construction of it in the case of Consolidated Arizona Smelting Co. v. Ujack, 15 Ariz. 382, 139 Pac. 465, decided in March, 1914, that appellee relies. The provisions of the Compensation Act passed in 1912 (Laws 1912 [Sp. Sess.], c. 14) and that part of the act of 1921 which we are now considering are very similar ; in fact, the same in effect and purport. Ujack was injured while engaged in a hazardous employment, and filed suit for dam*589ages based on the negligence of Ms employer, the company, wMch defended upon the theory that Ujack, not having disaffirmed his employment under the provisions of the Compensation Act by serving written notice thereof on his employer, came within the terms of the act because of the further provisions therein that—
“In the absence of such-written contract and written notice served as above provided it shall be taken and held that the employment and service is under this act; and the same shall be the sole measure of their respective rights and liabilities.”
It will be observed that there it was necessary for the employee to serve notice that he would not accept compensation in case of injury or it would be held as a matter of law that his service was under that act, which would be his sole measure of damages, while here he must reject by written notice served on the employer, or he will- be conclusively presumed to have elected to take compensation under the act, which is Ms exclusive remedy thereunder. That act also contains in the language of the Constitution two provisions as to the. election of remedies, sections 4 and 7, and another stating that—
•“If, after the accident, either the employer or the workman shall refuse to make or accept compensation under this act, or to proceed under or rely upon the provisions thereof for relief, then the other may pursue his remedy or make his defense under other existing statutes, the state Constitution, or the common law. ’ ’
Which of these conflicting provisions shall control —the disaffirmance clause relied on by appellant as requiring an election before injury, or those claimed by appellee as permitting it after injury; two in the language of the Constitution, and the other in effect construing it in accordance with appellee’s *590contention? In solving this question, the court naturally turned to the Constitution itself, and in giving its reasons for holding that the disaffirmance clause compelling an election of remedy before injury was not in harmony with the constitutional mandate, used this language:
“It will be granted, of course, that, when conflicts occur in the above quotation's from the Constitution and the statutes, the latter must give way. If the Constitution makes the compensation obligatory on the employer and optional as to the employee, to be exercised after the injury, that is the end of it. The Constitution says: ‘The legislature shall enact a "Workmen’s Compulsory Compensation Law ... by which compulsory compensation shall be required to be paid to any such workman by his employer. . . . 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.’ This mandate to the legislature was carried out in the enacting of the Workmen’s Compulsory Compensation Law, and, in doing so, there was created a new civil action heretofore unknown to our laws, available to the employee injured in the circumstances provided by law. It is optional with the injured employee as to whether he will accept the compensation. The employee’s right to exercise this option being a constitutional right, legislation is impotent to deprive him of it. If the employee is never injured, he can make no claim for ‘such compensation,’ nor exercise his option. After a cause of action has accrued to the employee, he may choose to accept the compensation allowed under this act, and the legislature is competent to prescribe the steps he shall take in its enforcement, but it cannot require him to elect, in advance of any injury, or the accrual of any right, which remedy he will pursue for redress.
“Therefore, any expressions in the Workmen’s Compulsory Compensation Act that seemingly require that the employee shall elect, in advance of injury, his remedy for redress should be read and construed in view of the constitutional provision permitting him *591to exercise his option, after the injury, either to claim compensaton or sue for damages.”
The court was undoubtedly right in its construction of the constitutional mandate as permitting an election of remedy only after injury. While it does not say in haec verba that the option can be exercised only after injury, yet that such is its undoubted import seems clear. How can an employee “settle” for “such compensation” until compensation is due? When he knows the extent of his injury, and what the law provides as compensation for it, he will be in a position to decide whether he will accept it or sue under other provisions of the law. Many injuries can be and are provided for, but in the very nature of things all of them cannot be foreseen; neither do the same injuries affect all persons alike. It is clear to my mind that it is not the intent of the Constitution to permit an employee to be deprived of his right of election before he has sufficient knowledge to enable him to choose his remedy in accordance with the dictates of his best interests. The idea of choice based upon full knowledge of the extent of the injury and the cause of it is contained in the constitutional mandate.
The correctness of this view is strengthened by a further consideration of section 5, article 18, of the Constitution, which says in effect to the legislature: Enact a Workmen’s Compulsory Compensation law requiring the payment of compensation to any workman who receives in his employment under certain conditions a personal injury, but provide in that law that it shall be optional with the employee to settle for such compensation or retain the right to sue; do not provide for compensation in case of death, because no one then can exercise the option. Since, then, the command is to provide for compensation in case of injury, and by implication not to do so in cases of *592death, where the right to elect, being personal, dies with the employee, is not the conclusion inevitable that only the employee who is injured can exercise the option? Otherwise, the command would have been to provide for compensation in all cases, and for an election between it and other remedies at a time when all employees, including those who may be merely injured as well as those who may lose their lives, can exercise the option, which necessarily would be before injury. To whom do the words “said employee” in the optional clause refer? Is if not the workman (employee) previously mentioned in the samé section as the one to whom “personal injury is caused”? It seems clear that the entire proviso was inserted wholly for his' benefit.
It is further claimed that unless the option can be exercised before injury compensation cannot become a substitute for other remedies, which is one of the characteristics of all compensation laws. The legislature is directed to provide for compensation to be paid the workman himself, for injuries only, nothing being said in reference to making provision for paying compensation to his heirs or dependents in case of death. This court, in the case of Behringer v. Inspiration Cons. Copper Co., 17 Ariz. 232, 149 Pac. 1065, held that compensation in death cases was not included in the mandate, unless it be where the injured employee elects compensation after injury and dies pending settlement, in which case —
“The personal representative doubtless could enforce the contract, as he could any other contract of his intestate.”
If this be true, dependents in such event would be deprived of the compensation the death schedule carries, and also defeated in an action under other provisions of the Constitution based upon wrongful death. Such was not the intention of the Constitu *593tion. It is a very serious question, then, whether the legislature is not powerless to permit the. substitution of compensation in death cases for the remedies given under other provisions of the Constitution. Can constitutional language specially limiting compensation to employees be so enlarged in meaning as to .include compensation to heirs and dependents? A constitutional amendment in California granted the legislature the right to—
“Create and enforce a liability on the part of all employers to compensate their employees for any injury incurred by the said employees in the course of their employment, irrespective of the fault of either party. ’ ’
The Supreme Court of that state, in an opinion in which the judges were divided in the proportion of four to three, held that the power was thereby conferred on the legislature to provide, for compensation to dependents and heirs. Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, Ann. Cas. 1917E, 390, 156 Pac. 491. But the constitutional provision there does not direct the legislature to provide also that it shall be optional with the employee to settle for such compensation or retain his right to sue. If there had been a provision requiring the preservation of the right of the employee to elect between compensation and other remedies, the conclusion reached would doubtless have been as the three dissenting judges held, even without the optional provision. The fact that section 7, article 18, of the Constitution, just preceding the section under consideration providing for compensation to employees, directs the legislature to enact an Employers’ Liability Law applicable to all cases of death and injury still further strengthens this view. Both sections appear in article 18, entitled “Labor,” and have in view different phases of the same thing, the manner of enforcing claims for *594injuries in hazardous occupations. Why should one contain a mandate relative to cases of both death and injury, and the other only to the latter, unless it be that both mean what they say and no more?
It is again urged that to permit an election of remedy after injury gives only an additional method of redress, which would result in defeating the purpose of the constitutional mandate to enact a workmen’s compulsory compensation law, since it cannot then become substitutionary. Inasmuch as compensation is compulsory as- to the employer and optional as to the employee, an additional remedy so far as the latter is concerned is all that is intended. It becomes both a substitutionary and compulsory remedy as to him from the time he decides to make it such by electing to settle for compensation, but not until then. The only purpose of the proviso is to preserve, not until employment is secured, but until injured in the employment, the employee’s right to say whether he wants to substitute compensation for other remedies or not. There is no question but that the optional clause was inserted for his benefit, but, unless he knows when his remedy is chosen the seriousness and extent of his injury and the manner of its occurrence, he will be unable then to determine whether compensation will be better for him than other remedies, and the option which has been vouchsafed unto him will, practically speaking, have been denied him, and the purpose of the one who introduced it and of those who sponsored it in the constitutional convention frustrated. To give the employee the right, up to the time of the injury, to sue for negligence, or seek redress under the Employers ’ Liability Law, or claim compensation, whatever choice made to be binding from then hence, to my mind effectuates the very purpose of the mandate, rather than defeats it, and in no other way could this be accomplished.
*595Up to the end of territorial government in Arizona, a recovery for personal injury resulting in death was limited to $5,000, and the cause of action therefor was subject to all the defenses of the fellow-servant rule, assumed risk and contributory negligence, but with the adoption of the Constitution, which removed the limitation to recovery, abrogated forever the fellow-servant doctrine, made assumed risk and contributory negligence questions of fact for the jury to decide, and provided for the enactment of an Employers’ Liability Law, as well as one for Workmen’s Compulsory Compensation, “a different and more advanced, as well as humane public policy” was inaugurated, one which made it possible to enforce in court a claim for personal injury or death without the necessity of overcoming practically insurmountable defenses. When, therefore, there was proposed in the constitutional convention a Workmen’s Compulsory Compensation Law which would provide a definite amount for all foreseen injuries, the changed status of the employee under the new remedies of the Constitution led to the introduction and adoption, as a part of the mandate to enact a Workmen’s Compulsory Compensation Law, of the proviso therein which reserves to the employee the right to proceed at his option under one of these new remedies when the nature and extent of his injury, together with the manner of its occurrence, suggest that his best interest will be thereby subserved; otherwise to settle for the compensation which the act should provide for such injury.
To see that the employee lost none of the rights just conferred by the Constitution, by compelling him to accept, in their stead, a definite amount for an injury, the seriousness of which could not in all instances be foreseen prior to the injury, seems to have prompted the passage of this provision, and *596besides, the practical working of Compensation Laws was then virtually unknown in this country, as there had been only two or three enacted and they were very recent. By giving the mandate its natural construction, as meaning an election after injury, its double purpose is effectuated; that is, compulsory compensation as a substitute remedy is provided for where the employee wants to make it such, and the option of the latter to accept it or not is preserved.
To my mind it is clear that the optional provision in section 8, article 18, was placed there entirely for the benefit of the injured employee. It was intended to preserve his right to elect his remedy at a time when he could do it to his best advantage. If such construction renders it impossible to enact in this state a Compensation Law in the true sense of that term, my answer is that the fundamental law is our guide, and where it leads it is the duty of the court to follow. Whatever the consequences may be, the court has no alternative other than to give effect to its plain mandates, and, if this stands in the way of the enactment of a Compensation Law in harmony with those in other states, and it is thought best to have one of that kind, the appeal'to remove the barrier should be to the people who made the Constitution, and can remake it, and not to the courts, which possess only the power to construe it. I am convinced, therefore that the act is invalid because it deprives employees of their constitutional right to choose after injury between compensation and other remedies; and, since it is provided in the act itself that in case the election before injury provision cannot stand the whole shall fail, I concur in the opinion of the Chief Justice that the judgment of the trial court nullifying the law should be affirmed.