The contention of the plaintiff in error is that Section 27 of the act referred to infringes Section 5 of Article I of the Bill of Rights, which provides that right of trial by jury shall be inviolate; that it is obnoxious to Section 16 of the same Article, which provides that all courts shall be open and every person shall have remedy by due course of law; that it is the taking of property without due process of law; that it confers judicial power upon a nonjudicial tribunal; that it is an infringement of Section 35 of Article II of the Ohio Constitution; and that it is a denial of the equal protection of the law as guaranteed by the Federal Constitution.
Section 35 of Article II of the‘Ohio Constitution was adopted in September, 1912, and provides: “For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen’s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, administered by the state determining the terms and conditions upon which payment shall be made therefrom, and taking away any or all rights of action or defenses from employes and employers; but no right of action shall be taken away from any employe when the injury, disease or death arises from failure of the employer to comply with any lawful requirement for the protection of the lives, health and safety of employes. Laws may be passed establishing a board which may be empowered to classify all occupations, according to their degree
The act referred to was passed pursuant to the grant of power contained in the above provision of the constitution. The act was, in effect, an amendment of the act of May 31, 1911, which provided for the creation of a state liability board of awards, which should establish a state insurance fund from premiums paid by employers and employes in the manner prescribed in the act.
This court, in upholding the constitutionality of the earlier statute, pointed out that it was not compulsory or coercive, and the general scheme of the law, with the provisions for the collection, control and disbursement by the state of the insurance fund provided for by its terms, was sustained as a valid exercise of the police power by the legislature. After the decision just referred to, Section 35, Article II,'was adopted by the people as an amendment to the constitution.
It is manifest that the paramount purpose of the amendment was to leave no doubt as to the power of the legislature to pass a compulsory act for the establishment of a state insurance fund to be administered by the state, to which fund employers should be compelled to contribute. It empowered the general assembly to take away any or all rights of action or defenses from employes or employers, subject to certain conditions named.
The sentiment which brought about these consecutive advance steps was of slow but sure growth. It
The pertinent part of Section 27, which is attacked, is as follows: “Any employe whose employer has failed to comply with the provisions of section twenty-two hereof, who has been injured in the course of his employment, wheresoever such injury has occurred, and which was not purposely self-inflicted, or his dependents in case death has ensued, may, in lieu of proceeding against his employer by civil action in the courts, as provided in the last preceding section, file his application with the state liability board of awards for compensation in accordance with the terms of this act, and the board shall hear and determine such application for compensation in like manner as in other claims before the board; and the amount of compensation which said board may ascertain and determine to
The sections preceding Section 27 deal with three classes of employers:
First: Employers who comply with the provisions of the statute and pay premiums into the state insurance fund under Section 22.
Third: Employers who do not comply with the law.
As to employes of employers who do not comply with the law, Section 26 provides that such employers shall be liable to their employes for damages suffered by reason of personal injuries sustained in the course of employment caused by the wrongful act, neglect or default of the employer, or his agents or employes, and in such case the defendant shall not avail himself of the defense of the fellow-servant rule, of the assumption of risk or of contributory negligence; and Section 27 then enacts that any employe, whose employer has failed to comply with the provisions of the law, who has been injured in the course of employment, etc., may, in lieu of proceeding against his employer by civil action in the courts, file his application with the commission for compensation in accordance with the terms of the act.
It will be observed that the employe of such an employer has two remedies, and he must elect which one he will pursue. He cannot have both. He may sue his employer, as at common law, and, in that suit he is permitted to recover whatever damages he is able to show he has sustained; or, he may, in lieu of such suit, apply to the commission for. compensation under the act. In the latter event, the board is required to proceed in like manner as in other claims. They must find whether the em
The grant of power to the general assembly to pass a compulsory law carries with it, as incident thereto, the power to include all such reasonable provisions as are necessary to make the law effective. The proceeding laid down is in full keeping with the provisions of Section 35 of Article II of the Constitution, and is one to compel the employer to perform his part in the general scheme of industrial protection.
It is claimed first that the right of trial by jury is violated. As to this, it must be noted that upon failure of the employer to comply with the statute, and upon his failure to comply with the order of the commission to pay the compensation fixed to the person entitled to it, the same shall constitute a liquidated claim for damages against such employer in the amount fixed, which with an added penalty of fifty per cent, may be recovered in an action in the name of the state for the benefit of the employe.
This is a necessary proceeding to compel the employer to do the thing which the general assembly was authorized to require by the constitutional amendment. It is at once manifest that the provisions of the section whose validity is attacked are important and essential steps in the administration of the law itself and are vital to the accomplish
There is no denial of trial by jury as to any issue which the employer is entitled to raise.
It is also claimed that the section under examina- i tion infringes on the judicial power of the state in; that it confers upon an administrative board judicial ; functions. The judicial power of the state is vested by Section 1 of Article IV of the Constitution in the courts named in that section, and it is contended that the duties.laid upon the industrial commission are judicial in character and call for the exercise of judicial power.
From what has been already shown it will be seen that the proceedings before the commission, and its
In State, ex rel. Yaple, v. Creamer, Treas., 85 Ohio St., 349, at page 400, the following was said as to the same contention:
“Of course if the board is a court there is an end of the whole matter. The statute would be unconstitutional. For if the board is a court it has not been created in accordance with the manner provided by the constitution.
“We do not consider the board of awards a court, or invested with judicial power within the meaning of the constitution.
“It is created by the act purely as an administrative agency to bring into being and administer the Insurance fund, and the fact that it is empowered fo classify persons who come under the law and to ascertain facts as to the application of the fund, does not vest it with judicial power within the constitutional sense.
“Under our system the executive department of the government has many boards to assist in the administration of its affairs.
“In State, ex rel., v. Hawkins, 44 Ohio St., 98, it is said: ‘What is judicial power cannot be brought within the ring-fence of a definition. It is undoubtedly power to hear and determine, but this is not peculiar to the judicial office. Many of the acts of administrative and executive officers involve the exercise of the same power.’ The court then shows that many boards hear and determine questions afPage 245fecting private as well as public rights, and quotes with approval from State, ex rel., v. Harmon, 31 Ohio St., 250: The authority to ascertain facts and apply the law to the facts-when ascertained pertains as well to other departments of government as to the judiciary.’ ”
In Hunter v. Colfax Consol. Coal Co., 154 N. W. Rep. (Iowa), 1037, it is said, at page 1060, concerning a similar claim: “According to Sabre’s Case, 86 Vt. 347, 85 Atl. 694, Ann. Cas. 1915C, 1269, such acts confer the power upon investigation to apply the general provisions of law to particular circumstances and situations, and may validly leave much of detail to the discretion of a commission; that though they, may, in a sense, clothe an administrative body with quasi judicial functions in some respects, this is authorized by the police power, and confers power merely to determine facts upon which existing law shall operate, which is a conferring of auxiliary or subordinate legislative powers. The act takes away the cause of action on the one hand, and the ground of defense on the other, and'merges both in a statutory indemnity, fixed and certain.”
In 6 Ruling Case Law, Section 175, page 175, it is said: “In accordance with the power of the legislature to enact laws the effect and operation of which is made dependent on the happening of certain contingencies, the condition selected may be the ascertainment of particular facts by executive or other officers. This has given rise to the well established distinction that although the legislature cannot delegate its powers to make a law yet it can
In Field v. Clark, 143 U. S., 649, at page 694, the court quote with approval from Locke’s Appeal, 72 Pa. St., 491, 498: “The legislature cannot delegate its power to make, a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government.” And in Reetz v. Michigan, 188 U. S., 505, 507, it is said: “Indeed, it not infrequently happens that a full discharge of their duties compels boards, or officers of a purely ministerial character, to consider and determine questions of a legal nature. Due process is not necessarily judicial process.”
Much that has been already said applies with equal force to the remaining claims of plaintiff in error that the section in question denies .to the employer in question the due process of law and the equal protection of the law, in violation of the pro
An additional objection is made against the validity of Section 27. It is said that the provision with reference to an injury “in the course of employment” permits an award to be made to one whose injury did not arise out of the employment. We do not think this contention is well taken. The language is found in the constitutional amendment as well as in the statute. It was plainly the intention of the framers of the amendment, and of the statute, to provide for compensation only to one whose injury was the result of or connected with the employment, and would not cover any case which had its cause outside of and disconnected with the employment, although the employe may at the time have been actually engaged in doing the work of his employer in the usual way.
Counsel for some employes of employers who have elected to make compensation under the statute have filed a brief in this case, in which they assert that Section 22 of the act under consideration, which authorizes employers under the conditions named therein to directly compensate their injured employes, is invalid because there is no provision in the act itself by which an employe of such an employer, who makes application to the board for compensation and is refused, may have any relief whatever.
The validity of Section 22 has been considered in another case not yet reported and the court is unanimously of opinion that it is a valid provision.
It must be remembered that this act was passed
No one has a vested right in rules of the common law. Rights of property vested under the common law cannot be taken away without due process, but the law itself as a rule of conduct may be changed at the will of the legislature unless prevented by constitutional limitations. The great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to new circumstances. Mondou v. N. Y., N. H. & H. Rd. Co., 223 U. S., 1; Munn v. Illinois, 94 U. S., 113; Martin v. P. & L. E. Rd. Co., 203 U. S., 284, and Western Union Tel. Co. v. Commercial Milling Co., 218 U. S., 406.
Our constitutions were made in the contemplation that new necessities would arise with changing conditions of society.
Mr. Justice Matthews, in Hurtado v. California, 110 U. S., 516, 531, said: “As it was the characteristic principle of the common law to draw its inspiration from every fountain of j'ustice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mold and shape it into new and not less useful forms.” The constitutional guaranties which existed prior to the adoption of
Viewed in the light of experience and of the well-determined principles which we have suggested, the act under consideration seems to us to be equitable and just in its fundamental provisions, to both the employer and employe. It places employers who pay premiums into the state fund, and those who are authorized by the commission under the law to directly compensate their injured employes, and employers who do not comply with the law, upon such terms of equality as are practicable under the circumstances and situations voluntarily assumed by each. If an employer may arbitrarily refuse to obey the law — if he may demand that the procedure as to him shall be as before the amendment and before the statute — then the attempt of the people to secure a more enlightened and scientific method of dealing with this important subject will have been in vain.
We think the section in question is plainly justified by the amendment (Section 35 of Article II of the Constitution) and by the principles declared in
In the well-known case of Noble State Bank v. Haskell, 219 U. S., 104, which involved the constitutionality of a law enacted in the exercise of the police power to establish bank depositors guaranty funds created by levy on each of the banks, the objection as to the taking of property without due process of law and the denial of equal protection of laws was made, and the court say, at page 110: “In the first place it is established by a series of cases that an ulterior public advantage may justify a comparatively insignificant taking of private property for what, in its immediate purpose, is a private use. * * * It may be said in a general way that the police power extends to all the great public needs. Camfield v. United States, 167 U. S. 518. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.”
Entertaining these views we conclude that the judgment should be affirmed.
Judgment affirmed.