Dissenting Opinion by
Judge Milleb.The opinion of the majority of the court is of such far-reaching importance that I feel justified in giving the reasons for my dissent from the conclusions there reached; and, in doing so, I will be as brief as the necessities of the case will permit. The opinion of the majority makes it impossible for the Legislature to pass any effective Workmen’s Compensation Act, under our present Constitution.
The Kentucky Workmen’s Compensation Act was approved March 21, 1914. Acts 1914, page 226. It is a very elaborate statute, of 75 sections, providing for the creation of the compensation fund, and its administration, in every detail.
The Compensation Board created by that act instituted this action for the purpose of obtaining a mandatory injunction directing the defendant, The State Journal Company, an employer of labor within the State, and whose business is enumerated in Section 15 of the act as subject thereto, to furnish the board certain information relative to its business. '
The circuit court sustained the act, and the defendant appeals.
Counsel for appellant have gone at great length into the merits of the act.
Under my view of the province of this court’s powers and duty, the wisdom or propriety of the act is not before us; we are to pass only upon the questions of law; upon the constitutionality of the act.
*576It is sufficient to say that this court has repeatedly held that the fairness or wisdom of an act is a legislative question; and, without citing the many authorities which establish so elementary a proposition, it may be sufficient to refer to the language of this court in the late case of the Eastern Kentucky Coal Lands Co. v. Commonwealth, 127 Ky., 717, where we said:
“There are a number of other.objections made to the statute by appellant, all of which may be grouped under the general complaint that it is harsh, oppressive, and unjust. Were these objections well grounded, they would afford no basis for relief at the hands of the court. The policy of the Legislature may be looked into by the courts for the purpose only of interpreting statutes. If, then, they are found to be within the power of the Legislature to enact, the business of the court is ended. * #
“It is not tolerable in our form of government, with its distinct separation of powers, that acts of the legislative branch should stand or fall according as they appealed to the approval of the judiciary; else one branch of government, and that the most representative of the people, would be destroyed, or at least completely subverted to the judges.”
The courts must necessarily assume that legislative discretion has been properly exercised. Cooley’s Constitutional Limitations, 7th Ed., page 257.
In the interpretation of statutes it is an elementary rule of construction that all laws enacted by the Legislature are presumed to be valid, and that it is the duty of the courts to declare them valid unless they clearly transgress some limitation upon the power of the Legislature, imposed by the State or Federal Constitutions.
The public policy of a State is expressed in its Constitution and Statutes, and in its common law as found in the opinions of its court of last resort; and, if the Constitution or Statutes speak upon a subject, the public policy of the State is fixed to that extent.
If we were permitted to consider the reasons which actuated the Legislature in passing this act, they might easily be found in the generally conceded harshness of the common law rules governing the liability of employers to employes injured while engaged in service, which was forcibly stated by Chief Justice Winslow, of the Supreme Court of Wisconsin, in deciding Driscoll v. Allis-Chalmers Co., 144 Wisc., 468, where he said:
*577“It gives me no pleasure to state these long established principles of law of negligence. I have no fondness for them. If I were to consult my feelings alone, I would far prefer to let the case pass in silence. No-part of my labor on this bench has brought such heart-weariness to me as that ever-increasing part devoted to the consideration of personal injury actions brought by employes against their employers. The appeal to the emotions is so strong in these cases, the results to life and limb and human happiness so distressing, that the attempt to honestly administer cold, hard rules of law which either deny relief entirely or necessitate a new trial, make draughts upon the heart and nerves which no man can appreciate who has not been obliged to meet the situation himself; If it be said that some of these rules are archaic and unfitted to modern industrial conditions, I do not disagree; in fact, that has been my own opinion for long. Upon reflection it seems that this could not be otherwise. Principles which were first laid down in the days of the small shop, few employes and simple machinery, could hardly be expected to apply with justice to the industrial conditions which now surround us.”
The basic principle underlying the laws of this character, of which the Kentucky act is typical, is, that the business of the country should bear the financial burden of all industrial accidents' rather than the workmen who happen to be the victims of particular accidents. The question of direct fault is not considered. The fact alone that the victim suffers loss of wages or bodily impairment, entitles bim to compensation, unless the injuries received are due to his own willful negligence.
Under the common law, damages for personal injuries are recoverable only when the accident was due to the fault of the employer or of his servants; and, in many cases, a recovery cannot be had even though the employer or his servants had been negligent, if the employe had been guilty of contributory negligence. This method of adjusting individual rights is necessarily expensive, uncertain and unsatisfactory to all parties concerned.
But, whether the Legislature acted for the reasons above suggested, or for any of them, if it had the right to pass the act in question, the. case is ended so far as! this court is concerned.
*578With this limitation in view, I will consider, as briefly as possible, the principal objections urged against the constitutionality of the act.
It is urged that the act is compulsory in that it, in effect, compels the employer and the employe to accept its provisions 'under penalty of losing their rights under Sections 54 and 241 of the Constitution, which read as follows:
“54. The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.
“241. Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death from the corporations and persons so causing the same. Until otherwise provided by law, the action to recover such damages shall, in all cases, be prosecuted by the personal representative of the deceased person. The General Assembly may provide how the recovery, shall go and to whom belong; and until such provision is made, the same shall form part of the personal estate of the deceased person.”
As I 'understand the majority opinion, this is the only ground upon which it holds the Kentucky act of 1914 invalid. It tacitly overrules the many other constitutional objections urged against the act.
Section 29 provides that any employe, subject to the act, may contract with his employer, who is subject to the act, and who elects to pay the premiums provided thereby, to accept the compensation provided by the act for injured employes in lieu of any cause of action which .he or his representative might have, arising from the negligence of his employer, or his agents or servants, and to waive all causes of action against said employer conferred by the Constitution or Statutes of this State, or by the common law, for his injury or death occurring through the negligence of the employer or his agents.
Section 30 provides that such a contract between an employe and employer shall be conclusively presumed to have been made in every case where an employer has elected to pay into the fund, if such employe shall continue to work for the employer thereafter with notice that the employer has elected to pay into the fund; and the posting of printed or typewritten notices in conspicuous places about the employer’s place of business at the time of the election by the employer to pay into the *579fund, that he has so elected, shall constitute sufficient notice to all of his employes of the fact that he has made such an election; and the continuance in the service of such employer shall be deemed a waiver by the employe of his right of action, except as provided in Section 32.
Section 32 provides that any employe, prior to receiving an injury, may give notice to his employer, who has elected to pay into the fund, that he will not accept the benefit of the act and waive his right of action as provided thereby, such notice to be served on the employer and a copy mailed to the Compensation Board. If, thereafter, the employe shall be injured or killed while in the service of the employer, who has elected to operate under the act, and an action shall be instituted against the employer to recover damages, the employer may rely upon the defenses of contributory negligence, assumed risk, and the fellow-servant rule.
Section 34 provides that an employer who shall not elect to pay into the Compensation Fund the premiums provided by the act, shall not, in a suit against him for personal injuries or death of an employe, avail himself of the defenses of assumption of risk or contributory negligence.
It will thus be seen that the act makes it voluntary whether any employer shall accept the provisions of the act on the one hand, or whether the employe shall work for, or remain in the service of, his employer after the latter has made his election to work under the act, taking from the employer, however, his common law defenses above specified in case he declines to work under the act, and saving to the employer those defenses against his employe who refuses to accept the provisions of the act.
It is contended that these provisions compel both the employer and the employe to accept the provisions of the act, by taking away their constitutional rights in ease they refuse to come within the act.
Many of the earlier laws were compulsory in form, and sought to compel employers and employes to accept them in lieu of their former remedies.
The New York Act, which was held to be unconstitutional in Ives v. South Buffalo Ry. Co., 201 N. Y., 271, Ann. Cas. 1912B, 157, was, by its terms, compulsory.
In the Ives case, supra, the New York Court of Appeals held the act unconstitutional because its compnl* *580sory features denied the parties due process of law, both under the State and the Federal Constitutions.
It was further held in that case, however, that the abolition of the common law defenses, the classification of industries, and the granting of new remedies to the employe, were all permissible; and, further, that the act was not an undue exercise of the police power.
Later, in State v. Clausen, 63 Wash., 156, 37 L. R. A. (N. S.), 466, the Supreme Court of Washington upheld a compulsory act embodying the same features which the New York Court of Appeals had held were fatal to the New York act. The Washington court expressly repudiated the reasoning employed by the New York court.
Still later, in Cunningham v. Northwestern Improvement Co., 44 Mont., 180, 119 Pac. 554, the Supreme Court of Montana sustained a compulsory act as against the objections to it, based upon its exercise of the police power, and that it attempted class legislation, illegal taxation, denial of jury trial, due' process of law, .and the delegation of judicial authority. The Montana act was, however, held unconstitutional solely upon the ground that it denied the employer the equal protection of the laws, in that the compensation system was, as to him, exclusive, while the employe might, after receiving the injury, elect to renounce the provisions of the act and proceed in' his action at law for damages against his employer, who had already been required to purchase insurance in the State fund.
In the meantime, the Wisconsin Compensation Law was enacted, with the elective features of the Kentucky act; and the same objection was there made as is now here made, that the act was compulsory in its effect.
But, in overruling that objection, and in sustaining the act, the Wisconsin Supreme Court, in Borgnis v. Folk Company, 147 Wis., 327, 37 L. R. A. (N. S.), 500, said:
“Passing from these questions of classification, we meet the objection that the law, while in its words presenting to employer and employe a free choice as to whether he will accept its terms or not, is, in fact, coercive, so that neither employer nor employe can be said to act voluntarily in accepting it. As to the employer, the argument is that the abolition of the two defenses is a club which forces him to accept; and, as to the employe, the argument is that, if his employer ac*581cepts the law, the employe will feel compelled to accept also, through fear of discharge if he do not accept.
“Both of these arguments are based upon conjecture. Laws cannot be set aside upon mere speculation or conjecture. The court must be able to say with certainty that an unlawful result will follow. -We do not see how any such thing can be said here. No one can say with certainty what results will follow in the practical workings of the law. It may well be that many manufacturers, especially those employing small numbers of .employes and in the less dangerous trades, will deliberately conclude that it will be better business policy to exercise greater care in guarding their employes from possible danger, and greater discrimination in the employment of careful men, and reject the law entirely, running the risk of being able to prevent all, or nearly .all, accidents. It seems extremely probable that the great bulk of workmen, especially of the unskilled classes, will be glad to come under the act and thus secure a certain compensation in case of injury, in place of that very uncertain and expensive thing, namely, the final result of a lawsuit; but, whether this be so or not, it may be considered as reasonably certain that very many will elect to come under the act voluntarily and freely, and that those who do not will probably come from the ranks of skilled labor, who will deem the rates of compensation under the law as entirely inadequate, or will be careful workmen in the less dangerous trades, who will see no gain in bartering their common-law rights for the restricted remedies furnished by the statute. It cannot be said with any certainty that such men will be discharged for their failure to voluntarily come under the law. The probability would seem rather to be that they would be of a class which the employer would wish to keep in his employ, notwithstanding their attitude towards the law. These matters are, however, purely speculative and conjectural. None can say what the practical operation of the law will be. It is enough for our present purpose that no one can say with certainty that it will operate to coerce either employer or employe.”
Laws containing the elective feature have been enacted in Ohio, New Jersey, Wisconsin, Minnesota, Iowa, Massachusetts and Illinois, where they have been upheld by the courts; and in Michigan, Connecticut, Kansas, West Virginia, Oregon, Nebraska, Nevada, New *582Hampshire, Bhode Island, Louisiana, and Texas, where no decisions have yet been made.
The Ohio Compensation Act was likewise elective in its provisions; and in State v. Creamer, 85 Ohio St., 349, 39 L. R. A. (N. S.), 694, the constitutionality of the Ohio act was attacked upon the ground that it was coercive, and deprived persons of their freedom of contract and of their property without due process of law, and that it was not sustainable under the police power. All of these objections were overruled, and the act was sustained throughout.
In answer to the contention that the statute was coercive, the Supreme Court of Ohio said:
“It is urgently insisted that while the law is apparently permissive, and leaves its operation to the election of employers and employes, it is really coercive, and upon this premise much persuasive argument against the validity of the law is based. This is an important question in the case.
“An examination of the section touching the questions made is here necessary. After providing, in Section 20-1, that an employer who elects to comply with the act shall be relieved .from liability to the employe at common law or by statute (except as provided in Section 21-2), it is then enacted in Section 21-1: ‘All employers who shall not pay into the insurance fund, * * shall be liable to their employes for damages * * # caused by the wrongful act, neglect, or default of the employer, his agents,’ etc. And in such cases the defenses of assumption of risk, fellow-servant, and contributory negligence are not available. So that an employer who elects not to come into the plan of insurance may still escape liability if he be not guilty of wrongful act, neglect, or default. His liability is not absolute, as in the case of the New York statute hereinafter referred to. And it cannot be said that the withdrawal of the defenses of assumption of risk, fellow-servant, and contributory negligence, as against an employer who does not go into the plan, is coercive, for such withdrawal is in harmony with the legislative policy of the State for a number of years past. The law known as the Norris law, passed in 1910, withdrew these defenses in the particulars covered by the law.
“As to the employe, if the parties do not elect to operate under the act, he has his remedy for the neg-. lect, wrongful act, or default of his employer and agents, *583as before tbe law was passed, and is not subject to tbe defenses named. If tbe parties are operating under tbe act, tbe employe contributes to an insurance fund for tbe benefit of himself or bis beirs, and, in case be is injured or killed, be or they will receive tbe benefit, even tbougb bis injury or death was caused by bis own negligent or wrongful act-, not willful. And that is not all. Under Section 21-2, if tbe parties are operating under tbe act, and tbe employe is injured or killed, and the-injury arose from the willful act of bis employer, bis officer or agent, or from failure of tbe employer or agent to comply with legal requirements as to safety of employes, then tbe injured employe, or bis legal representative, bas bis option to claim under tbe act or sue in court for damages. Therefore, tbe only right of action which tbe statute removes from tbe employe is tbe right to sue for mere negligence (which is not willful or statutory) of bis employer, and it is .within common knowledge that this bas become in actual practice a most, unsubstantial thing.
“It is conceded by counsel that the particulars named in Section 21-2 are such as form tbe basis for a large portion of claims for personal injuries. Many employers may elect to remain outside its provisions; it would not be strange if many do so. On tbe other band, some workmen may feel disposed to do likewise in spite of what would seem to be to their manifest advantage in securing tbe benefits of tbe insurance. However, if there should be such general acceptance of and compliance with tbe statute as its framers hope for, so as to bring a large part of tbe labor employed in tbe industrial enterprises of tbe State within its influence and operation, that would not demonstrate its coercive character. On tbe contrary, it would justify the enactment. Naturally time and experience will disclose imperfections and inefficiencies in tbe plan; but if it should prove to be feasible and appropriate in a general way, these imperfections can be corrected by tbe Legislature. On account of tbe common law and statutory rights still preserved to tbe parties by this statute (as we have pointed out), in cases where tbe election is made to come under its provisions, as well as not to do so, taken in connection with tbe advantage to each which the plan contemplates, we cannot say that tbe statute is coercive. As was said in tbe Wisconsin case: ‘Laws cannot be set aside upon mere speculation or conjecture. Tbe court must be able *584to say with certainty that an unlawful result will follow.’ (147 Wis., 327.) We do not see how any such thing can be said here. Every consideration of prudence and self-interest (things not easily associated with compulsion and coercion) would seem to lead an employe to voluntarily make the contribution and waiver contemplated.”
And, in closing its opinion in the Creamer case, supra, the Supreme Court of Ohio said:
“It is suggested that this legislation marks a radical step in our governmental policy not contemplated by the Constitution, and which it is the duty of the court to condemn. But it creates no new right, or new remedy for wrong done. It is an effort to in'some degree answer the requirements of conditions which have come in an age of invention and momentous change. The courts of the country, while firmly resisting encroachment on the Constitution in the past, have yet found in their ample limits sufficient to enable us to meet the emergencies and needs of our development, and we do not find that this statute goes beyond the bounds put upon the legislative will. ’ ’
Again, the same question was decided the same way in Be Opinion of Justices, 209 Mass., 607.
The Massachusetts Compensation Law contained lili© elective provisions, and it was likewise attacked as being, in fact, compulsory. But, in answer to that objection, the Massachusetts Justices contrasted the Massachusetts act with the New York statute, saying:.
“There is nothing in the act which compels an employer to become a subscriber to the association, or which compels an employe to waive his right of action at common law and accept the compensation provided for in the act. In this respect the act differs wholly so far as the employer is concerned from the New York statute above referred to. By subscribing to the association an employer voluntarily agrees to be bound by the provisions of the act. The same is true of an employe who does not choose to stand upon his common law rights. An employer who does not subscribe to the association will no longer have the right in an action by his employe against him at common law to set up the defense of contribuory negligence or assumption of the risk, or to show that the injury was caused by the negligence of a fellow-servant. In the case of an employe who does not accept the compensation provided for by *585the act, and whose employer has become a subscriber to the association, an action no longer can be maintained for death under the employers’.liability act. But these considerations do not constitute legad compulsion or a deprivation of fundamental rights. We do not deem it necessary to take up and consider in detail the numerous provisions by which the right to compensation and the amount thereof and the persons entitled thereto, and the course of procedure to be followed and matters relating thereto, are to be settled and determined. We assume, however, that the meaning of Sections 4 and 7 of part 3 of the proposed act is that the approved agreement or decision therein mentioned is to be enforced by proper proceedings in court, and not by process to be issued by the industrial accident board itself. Taking into account the non-compulsory character of the proposed act, we see nothing in any of these provisions which is not ‘in conformity with’ the Fourteenth Amendment of the Federal Constitution, or which infringes upon any provision of our own Constitution in regard to the taking of property without due process of law.”
To these cases there should be added the late case of Matheson v. Minneapolis Street Ry. Co., decided July 13, 1914, and reported in 148 N. W., 71, which unanimously sustained the Minnesota Workmen’s Compensation Act of 1913, containing the elective features, after an exhaustive review of all the constitutional objections that could be urged against it.
In speaking generally of objections made to the Illinois Compensation Act, the Supreme Court of that State, in Deibeikis v. Link Belt Co., 261 Ill., 465, 104 N. E., 211, said:
“The other objections urged may all be answered toy the statement that the act is elective and not compulsory. Were the act deprived of its elective feature and made compulsory upon every employer and employe engaged in the enterprises enumerated in Section 2, very different and more serious questions would be presented. Being elective, the act does not become effective as to any employer or employe unless such employer or employe chooses to come within its provisions.”
Without further elaboration, it is sufficient to refer to Sexton v. Newark Dist. Tel., 84 N. J. Law, 85, 86 Atl., 451, and to Hawkins v. Bdeakley, Fed. (not yet reported), wherein the elective acts of New Jersey and Iowa were sustained, as not being coercive.
*586In no case has an elective compensation act been held invalid; on the contrary, statutes containing elective features substantially like the Kentucky Statute have expressly been upheld in Wisconsin, Ohio, Massachusetts and Minnesota; while Washington and Montana have gone further and sustained compulsory acts.
Kentucky is to be the first State making this radical departure; and, in doing so, this court fails, it seems to me, to mark the essential legal distinction between compulsory and elective acts, by giving more effect to imaginative cases than to real cases.
It may be readily conceded that if the act were compulsory, it would be inimical to the sections of the Constitution last above referred to; but, when it has been demonstrated that the act is elective only, and not compulsory in its provisions, all of these constitutional objections relating to the exercise of the police power, reasonable classification, taking property without due process of law, depriving one of a jury trial, etc., disappear as having no application to the case; they can only apply when the act is compulsory. I do not understand it to be claimed that parties may not agree to waive their constitutional or legal rights. To refuse them that right would, in itself, be unconstitutional, as depriving them of the right of free contract.
These objections to elective acts have been ably and exhaustively discussed in the eases from New Jersey, Wisconsin, Massachusetts, Ohio, Minnesota and Illinois, above referred to, and, in each instance, many, if not all, of the constitutional objections have been raised; and in every case overruled.
The fact is not to be overlooked that the elective feature of the act, which is made the controlling question in the majority opinion in this case, is not inimical to any provision peculiar to the Kentucky Constitution;, the elective feature is to be given the same effect under the Constitutions of the various States wherein compensation laws have been passed; the real question being in each case whether the act is, in fact, compulsory. If it is not compulsory, but elective, then all these constitutional objections necessarily disappear. It does not meet the argument to say that provisions like Sections 54 and 241 of the Kentucky Constitution are not found in other Constitutions.
In view of the uniform line of decisions to the effect that the elective clause is elective and not compulsory,
*587I am of the opinion that the Kentucky Compensation Act is a valid and enforeible law, and should not be set aside upon a mere speculation or conjecture.
As was said in Matheson v. Minneapolis Street Ry. Co., supra:
“We shall not stop to discuss the shortcomings and unsatisfactory results of the law of negligence as applied to present day industrial conditions; nor the desirability of providing more certain, effective, and'inexpensive relief for injured workmen than the present common law actions afford; nor the economic reasons for imposing upon an employer, not because he is at fault, but as a burden incident to his business, the obligation to contribute to the support of employes disabled through injuries received in the course of their employment. Much consideration has been given to these questions by publicists and students of industrial, economic and social problems; and it has become generally recognized that the common law fails to make adequate or equitable provision for the economic loss resulting from a disability which deprives the workman of his earning power. But changes in the laws, and in the public policies recognized in the laws, must emanate from the lawmaking power and not from the courts. The courts must administer the law as they find it, not as they may think it ought to be. Hence arguments showing the need for a change in the laws governing the relations of master and servant should be addressed to the legislative and not to the judicial branch of the government. The briefs have given considerable attention to these legislative questions, but it is sufficient, for present purposes, to say that the arguments advanced furnish ample basis for legislative action under the police power of the State; and that laws enacted for the purpose of adjusting and determining the respective rights and obligations of employer and employe may make radical innovations in pre-existing policies and rules of law, so long as they do not infringe some constitutional guaranty.
“In considering the question now before the court, it is proper to say, at the outset, that all laws enacted by the Legislature are presumed to be valid; and that it is the duty of the courts to declare them valid, unless they clearly transgress some limitation upon the power of the Legislature imposed by the State or Federal Constitution. Roos v. State, 6 Minn., 428 (Gil., 291); State v. Corbett, 57 Minn,, 345, 59 N. W., 317, 24 L. R. A., 498; *588Lommen v. Minneapolis Gaslight Co., 65 Minn., 196, 68 N. W., 53, 33 L. R. A., 437, 60 Am. St. Rep., 450; Union Pacific Ry. Co. v. United States, 99 U. S., 700, 25 L. Ed., 496; Powell v. Pennsylvania, 127 U. S., 678, 8 Sup. Ct. 992, 1257, 32 L. Ed., 253.”
Believing, as I do, that the majority opinion of the court is not sustained by reason or precedent, but is directly contrary to both, I have felt it proper, on account of the importance of the case, to give the reasons for my dissent.
Chief Justice Hobson and Judge Lassing concur in this dissent.