By the adoption in November, 1923, of the amendment to Section 35, Article II, of our Constitution, pertaining to workmen’s compensation, provisions were made giving to the Industrial Commission full power to determine whether the death of an employe resulted from the failure of the employer to comply with a specific requirement enacted by the General Assembly or promulgated in the form of an order adopted by the commission or board; and, when the commission has found that death resulted because of such failure to comply, the constitutional provision
In support of his demurrer to the petition, the Attorney General advances this argument in his brief: “The Industrial Commission claims that it is not required to pay these additional awards when they cannot be collected from the employer.” He contends that since the employer is insolvent no increase in his premium payments is possible, and the state will be unable to recoup its insurance fund from such insolvent employer. But the payment of the additional award, under the constitutional article quoted, is -not made conditional upon the ability of the state thereafter to recoup its insurance fund. The 15 per cent, minimum and 50 per cent, maximum is not termed a penalty under the constitutional section alluded to. It is denominated an “award” of compensation; it is as much an award as the original compensation fixed; it is simply an increased award added by the commission to the original award; and this is to be “paid in like manner as other awards.” The constitutional validity of one phase of the controversy, including the validity of a clause contained in Section 1465-75, General Code (111 Ohio Laws, p. 218), under the due process clause of the federal Constitution, has
In a case decided at the last term of this court (Slatmeyer v. Industrial Comm., 115 Ohio St., 654, 155 N. E., 484), the Attorney General in his brief conceded the point which he now antagonizes. He then said:
“When an attempt is made to recoup the amount, it may be that the employer is insolvent. * * * Nevertheless, the employe or his dependents have become entitled to and have received the compensation, regardless of the ability to recoup the fund. ’ ’
There appears to be no valid reason why, if the state insurance fund may be recouped in cases where the original compensation is awarded, it may not also be recouped where the compensation is increased by an added award.
The contention that the employes of careless employers, who become subsequently insolvent, should not receive the “additional award” from premiums paid in by careful and cautious employers, is logically untenable. Its infirmity lies in contrasting the respective rights of solvent and insolvent employers and ignoring the rights of the dependents of killed workmen. Section 35, Article II, of our Constitution, discloses its purpose in the opening sentence. It was adopted “for the purpose of providing compensation to workmen and their dependents.” We concede that employers are
The burdens of the act are placed, not upon the employer, but upon the industry and its hazards; and they are so placed under the exercise of the state’s police powers. Emphasizing again, as we did in the Williams case, supra, the distinction between cases where the due process clause is sometimes involved and eases where due process interferes with the police powers of a state, we quote from a case quoted by Mr. Justice Pitney, in Mountain Timber Co. v. Washington, 243 U. S., 219, 238, 37 S. Ct., 260, 265 (61 L. Ed., 685, Ann. Cas., 1917D, 642):
“Neither the [Fourteenth] Amendment — broad and comprehensive as it is — nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police • power, to prescribe regulations to promote the health, peace, morals,” etc.
And from the same opinion, at page 243 (37 S. Ct., 267) we further quote: “And if, as we have held in New York Central R. R. Co. v. White [243 U. S., 188, 37 S. Ct., 247, 61 L. Ed., 667, L. R. A., 1917D, 1, Ann. Cas., 1917D, 629], the state is at liberty, notwithstanding the Fourteenth Amend-
And then he says that the Workmen’s Compensation Act places “hazardous occupations in the category of dangerous agencies,” requiring their losses to “be reckoned as a part of the cost of the industry, just like the pay roll, the repair account,” etc.
The constitutional validity of the Workmen’s Compensation Act was fully sustained by this court in State ex rel. Yaple v. Creamer, Treas., 85 Ohio St., 349, 389, 97 N. E., 602, 39 L. R. A. (N. S.), 694, and in Fassig v. State ex rel. Turner, Attorney General, 95 Ohio St., 232, 116 N. E., 104. In both of these cases the validity of its provisions was upheld for the reason that they were passed pursuant to the exercise by the state of its police powers. On page 247 (116 N. E., 108) of the Fassig case, Judge Johnson, in his opinion, said:
“It must be remembered that this act was passed in the exercise of the police power, fortified by the grant of power contained “in the amendment to the Constitution in question, which in itself is but an assertion of the police power.”
It is fundamental that private rights and private property must yield to the proper exercise by the state of its police powers. Those who contend for the claimed rights of due process ignore the important fact that our workmen’s compensation system, created under our state Constitution
There is nothing in this case disclosing an unreasonable classification or any such arbitrary imposition of burdens as would invoke the protection of the Fourteenth Amendment of the federal Constitution. In the case of Jeffrey Mfg. Co. v. Blagg, 235 U. S., 571, 35 S. Ct., 167, 59 L. Ed., 364, in considering the Fourteenth Amendment in respect to our Ohio Workmen’s Compensation Law, and its claimed inequality in respect to classification, Mr. Justice Day said, at page 577 (35 S. Ct., 169):
“That a law may work hardship and inequality is not enough. Many valid laws from the generality of their application necessarily do that, and the Legislature must be allowed a wide field of choice in determining the subject-matter of its laws, what shall come within them, and what shall be excluded. ’ ’
Furthermore, the state insurance fund does not belong to the employers, but to the injured workmen and their dependents; and under Section 35, Article II, of the Constitution, the fund is to be “administered by the state, determining the terms and conditions upon which payment shall be made therefrom.”
Further discussion of the principles here involved may be found in our opinion in State ex rel. Williams v. Industrial Commission, supra.
Since the petition has been challenged by demurrer, the facts pleaded therein are confessed to be true; and, since it appears that the employer was a contributor to the state insurance fund, and that an added award of 50 per cent, was made by the
Writ allowed.