Specially Concurring. — The writs of mandamus issued in these causes are designed to compel the Secretary of State to continue to draw warrants on the state treasurer in payment of allowances already made by the state Industrial *104Accident Commission as compensation for pure accidents happening on navigable waters within the State of Oregon, without any tortious features, during the course of employment in which both employer and employee had elected to operate under the workmen’s compensation law. The reason assigned by the defendant for suspending the periodic issuance of warrants is that as the accidents occurred on navigable waters they gave rise to the constituted “cases” within the admiralty jurisdiction, the adjudication of which is confided by the Constitution of the United States exclusively to the federal courts.
The Workmen’s Compensation Act professes to include all casualties, whether accidental or culpable. The defendant insists that in construing the Workmen’s Compensation Act we cannot separate nonactionable injhries from those which are actionable on account of negligence or other fault of the employer, with the result that the whole scope of the act is unconstitutional as to whatever kind of injury occurs on navigable waters, whether tortious or accidental. As to that, it is a primary principle that the Constitution of the state is not an enabling organic act, but one that is iestrictive, the consequence of which is that the legislative power of the state may be exercised without let or hindrance except as expressed in the Constitution of the state or of the United States. It is also common learning that if an act of the legislative assembly is constitutional in part and unconstitutional in part, effect will be given to the constitutional part and that which is unconstitutional will be disregarded. This may be qualified by the statement that if that which is valid and that which is invalid are so inseparably united that neither can stand alone, the whole act must *105perish. It may he remarked, also, that we cannot speculate upon what the legislature might have done if it had been convinced when the bill was before it that it had no authority over maritime torts. The lawmakers clearly intended to include casualties of whatever kind wherever happening to workmen coming within the purview of the act. Grant, as we may, that they could not deal with maritime torts because their adjustment lies with the federal courts of admiralty, yet it must be that pure accidents cognizable by the statute are not so inseparably yoked up with tortious injuries as to defeat the enactment. We must give effect to the legislative intent, so far as that intent may be carried out upon legitimate grounds.
A tort is an actionable injury, dependent upon the fault or negligence of the one inflicting or who is responsible for the injury. The reason given for the constitutional objection to state courts’ entertaining actions or suits for damages arising from torts occurring on the navigable waters of the United States is that of Section 2 of Article III of the national Constitution it is laid down as the rule, that:
“The judicial power [of the United States] shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made or which shall be made under their authority; * * and to all cases of admiralty and maritime jurisdiction. * * ”
A “case” within the meaning of the constitutional provision just quoted is outlined in Cohens v. Virginia, 6 Wheat. (19 U. S.) 264, 278 ( 5 L. Ed. 257, see, also, Rose’s U. S. Notes), where Mr. Chief Justice Marshall said:
“A case in law or equity consists of the right of the one party, as well as of the other, and may truly *106be said to arise under tbe Constitution or a law of tbe United States, whenever its correct decision depends on the construction of either.”
In Osborn v. United States Bank, 9 Wheat. (22 U. S.) 738, 818 (6 L. Ed. 204, see, also, Rose’s U. S. Notes), the same learned justice used this language, in speaking of the clausfe .of the Constitution under consideration:
“This clause enables the judicial department to receive jurisdiction to the full extent of the Constitution, laws and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it, by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the Constitution declares, that the judicial power shall extend to all cases arising under the Constitution, laws and treaties of the United States.”
In United States v. Lee, 106 U. S. 196, 219 (27 L. Ed. 171, 1 Sup. Ct. Rep. 240, 260, see, also, Rose’s Notes), the court said:
“In the case supposed, the court has before it a plaintiff capable of suing, a defendant who has no personal exemption from suit, and a cause of action cognizable in the court, — a case within the meaning of that term, as employed in the Constitution and defined by the decision of this court. ’ ’
Smith v. Adams, 130 U. S. 167 (32 L. Ed. 895, 9 Sup. Ct. Rep. 566, see, also, Rose’s U. S. Notes), was a case where the court, speaking by Mr. Justice Field, undertook to define the terms “case” and “controversy.” He there said:
“By those terms are intended the claims or contentions of litigants brought before the courts for adjudication by regular proceedings established for *107the protection or enforcement of rights, or the prevention, redress or punishment of wrongs. Whenever the claim or contention of a party takes such form that the judicial power is capable of acting upon it, then it has become a case or controversy.”
In Pacific Steam Whaling Co. v. United States, 187 U. S. 447, 451 (47 L. Ed. 253, 23 Sup. Ct. Rep. 154, 155), the plaintiff petitioned the United States District Court for Alaska for license for its vessels and, at the same time, protested against the payment of license fees. The protest being overruled, the plaintiff appealed, and the Supreme Court of the United States refused to consider the appeal, because it was not a case in law or equity, and used this language:
“A case is a suit in law or equity, instituted according to the regular course of judicial proceeding; and when it involves any question arising under the Constitution, laws or treaties of the United States, it is within the judicial power confided to the Union”: Citing Story on The Constitution, § 1646. '
The court went on at length to point out that there was no adverse party; that no judgment could be rendered whereon execution could issue; and that what was desired of the court was in a sense ministerial, and hence that no “case” had arisen. In Muskrat v. United States, 219 U. S. 346, 361 (55 L. Ed. 246, 31 Sup. Ct. Rep. 250, 255, see, also, Rose’s U. S. Notes), Mr. Justice Day reviewed the precedents at large, saying:
“That judicial power, as we have seen, is the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction.”
A general discussion of the subject by Mr. Justice Harlan is found in Interstate Commerce Commission *108v. Brimson, 154 U. S. 447 (38 L. Ed. 1047, 14 Sup. Ct. Rep. 1125, see, also, Rose’s U. S. Notes).
In the eases in the federal courts where the constitutionality of compensation acts has been drawn in question, there was always litigation between the claimant and the respondent. In every instance a tort was involved, giving rise to a cause of action, or, in other words, a “case” as contemplated by the national Constitution. In Thomas v. Lane, 2 Sumn. 1, 9, the libel was against the master and mate of the brig “Moro” for an assault and battery committed on plaintiff, a seaman in the employ of the ship, in Havana harbor. In Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 62 (58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157, 34 Sup. Ct. Rep. 733), the libelant was a stevedore in the employ of a stevedoring company on board a vessel lying in the port of Baltimore. The locality ■ gave the United States courts jurisdiction as of a maritime tort, and it was there said:
“The libelant was injured because the care required by law was not taken to protect him while he was doing this work.”
This is clearly a case founded upon negligence. In Philadelphia etc. R. R. Co. v. Philadelphia & Havre de Grace Steam Towboat Co., 23 How. (U. S.) 209, 215 (16 L. Ed. 433, see, also, Rose’s U. S. Notes), the defendant had abandoned the building of a bridge over navigable water and had left some piles in the channel, which were cut off only a few feet below the water line. The plaintiff’s vessel was snagged on these hidden timbers. Again, we have an illustration of a tort based upon the negligence of the defendant. In The Plymouth, 3 Wall. 20 (18 L. Ed. 125, see, also, Rose’s U. S. Notes), by the negligence *109of its officers and crew a fire broke ont on the tng “Falcon” as it lay in navigable waters, moored to a dock. There, a tort was involved, predicated upon the negligence of the men in charge of the vessel, but it was held not to be a maritime tort, because the damage was wholly on land. No precedent has been brought to our attention where the injury for which compensation was sought happened as a pure accident, not attributable to the wrongdoing or neglect of anyone, in which compensation was denied on the ground of the supremacy of federal jurisdiction. The opposition to the claims of the petitioners here is not based on their merits or demerits, but entirely upon the proposition that the casualties involved gave rise to “cases” triable only in the admiralty courts of the general government, and that what has been done for the claimants under the Workmen’s Compensation Act is an attempted adjudication of those “cases,” void because jurisdiction over them is vested exclusively in the federal courts.
The casualties and injuries described in the writs appear to have been pure accidents, for which no one was responsible or to blame. No “case” in law or equity could arise from such untoward events. There is nothing out of which can be constructed a “case” for any court; and since there is no “case,” the inhibition of the national Constitution forms no obstacle to the relief here sought by the petitioners.
The writer is unable to concur in the statement in the opinion of Mr. Justice McBride that “there is no doubt of the existence of a contract between the employer, the employee and the state.” All that the state has done is by virtue of its legislative power to attach certain consequences to certain kinds of contracts made between employers and employees. *110It would be quite as logical to hold that the state is a party to every contract which it requires to be in writing, excluding all proof of it except the writing. The state cannot be said to be a contracting party, because it pays the salaries and expenses of the courts which enforce contracts for the benefit of those who make them. So here, the contribution of the state to the accident fund does not make it a contracting party. In its contractual aspect the matter is the affair of the employer and the employee only. Their relations are based upon contract, that of employer and employee. It was made with reference to the Workmen’s Compensation Act. It is stated in the writs that they elected to bring the work under the provisions of that statute. No dispute appears to have arisen between them respecting that relation or the consequences which they themselves appended to it. With perfect amity between the parties the performance of their contract was proceeding on its lawful, natural course according to their original design. It does not lie in the power of any administrative officer of his own motion to interrupt or defeat it.
In this connection it may be noted that the contention of the defendant is to the effect that the statute involved is unconstitutional because one or both of the parties to the imaginary “case” are deprived thereby of the federal remedy afforded in admiralty. Parties may waive even their constitutional rights and remedies. As said in The Winnebago, 205 U. S. 354, 360 (51 L. Ed. 836, 27 Sup. Ct. Rep. 509, 511, see, also, Rose’s U. S. Notes): *111as against the class making no complaint, the law might be so held: People of State of New York ex rel. Natch v. Reardon, 204 U. S. 152 (51 L. Ed. 415, 9 Ann. Cas. 736, 27 Sup. Ct. Rep. 188). See, also, Supervisors of Albany County v. Stanley, 105 U. S. 305-311 (26 L. Ed. 1044); City of Lampasas v. Bell, 180 U. S. 276, 283, 284 (45 L. Ed. 527, 21 Sup. Ct. Rep. 368); Clark v. Kansas City, 176 U. S. 114-118 (44 L. Ed. 392, 20 Sup. Ct. Rep. 284); Cronin v. Adams, 192 U. S. 108-114 (48 L. Ed. 365, 24 Sup. Ct. Rep. 219, see, also, Rose’s U. S. Notes). * *
*110“In a case from a state court, this court does not listen to objections of those who do not come within the class whose constitutional rights are alleged to be invaded j or hold a law unconstitutional because,
*111“If this statute is broad'enough to include strictly maritime- liens, it can only be held unconstitutional, in a case coming from a state court, where the complaint on that ground is made by the holder of such a demand.”
The defendant here has no interest in the award made to the petitioners by the Industrial Accident Commission, or in any claim they ever may have had against their employers. Under the doctrine thus announced in “The Winnebago,” it would seem that the defendant is not in any position to question the constitutionality of the state legislation under consideration.
This is remedial legislation and it is a duty of the courts to give it liberal construction so as to accomplish as far as possible the design of the law-making power. While it might be said that in cases of tort happening on navigable waters, the consequent litigation is cognizable only in the United States courts, instances where there is no actionable tort may well be provided' for by remedial state legislation. Conceding- what does not, however, appear, viz., that there were actionable maritime torts involved, the parties are not compelled to litigate them and thus formulate “cases” to be determined only in the federal courts. If they are willing to compose their af*112fairs amicably either by a lawful compact of their own making or in conformity to a scheme devised by a statute and optional with both of them, it would seem that they ought to be permitted to do so.
For those reasons I concur in the result of the opinion of Mr. Justice McBride.