The Constitutional Problem of Workmen's Compensation

• Published date: 01 July 1911
• Author: William Draper Lewis
• DOI: 10.1177/000271621103800120
• Date: 01 July 1911
• Subject Matter: Articles

THE CONSTITUTIONAL PROBLEM OF WORKMEN’S
COMPENSATION
BY WILLIAM DRAPER LEWIS, PH.D.,
Dean of the Law School, University of Pennsylvania, Philadelphia.
The Court of Appeals in New York has just rendered a deci-
sion declaring unconstitutional the Workmen’s Compensation Act
in that state, the ground of the decision being that the act deprives
employers of their property without due process of law. The action
of the highest court of the first state in the Union shows the serious
nature of the constitutional problem involved in any attempt to
meet present conditions by a compensation act, or in other words,
by an act which throws in whole or in part on the owners of the
business the financial loss resulting from all accidents to employees
occurring in the course of the business and incident thereto.
The constitutional limitation that a person cannot be deprived of
his life, liberty or property without due process of law, is not only
in the Federal Constitution as a limitation on federal and state
action, but in one form or another is found in practically all our
state constitutions.
On the other hand, the decision of one court
on a particular act, even though, as in this case, the language of
the court is sweeping enough to condemn all similar legislation, is
very far from being conclusive of the question of constitutionality.
If a decision on a new and important question of constitutional
law is fundamentally sound, it lasts; if unsound, while it may not
be formally overruled, it comes in time to be practically disre-
garded. Indeed, if this were not true, our written constitutions
would rapidly become intolerable fetters upon the expression of the
reasonable desires of the people. The famous decision of the New
York Court of Appeals in 1885, that an act which prohibited the
manufacture of tobacco in tenement houses was unconstitutional,
because it had no relation to the promotion of public health, and,
therefore, arbitrarily deprived the owners of such houses of a
reasonable use of their property, would probably not now be fol-
lowed by any court, except possibly the court which decided it, be-
cause to-day courts would recognize that the legislature of New
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York was right and the Court of Appeals wrong, not on a matter
of law, but on a matter of fact,-the use of tenement houses for
the manufacture of tobacco being, as a matter of fact, peculiarly
deleterious to health. (The matter of Jacobs, 98 New York, 98.)
In the Bake-Shop Case-a decision of the Supreme Court of
the United States (Lochner vs. New York, 198 U. S. 45),-
an act of the State of New York limiting the hours of the
laborers in bakeries to sixty per week was declared unconstitu-
tional as arbitrarily depriving the workmen of their right to con-
tract. This case was supposed to threaten all legislation designed to
limit the hours of labor, except peculiarly exhausting employments.
But to-day, since the decision of the same court in the Oregon case
(Muller vs. Oregon, 208 U. S. 412), the Bake-Shop Case is be-
lieved to stand merely for the proposition that legislation limiting
the hours of labor must be shown to be reasonably designed to
protect the health of the laborer.
There are grounds for believing that the constitutional prohibi-
tion against depriving persons of life, liberty or property without
due process of law, as originally used in the fifth amendment of
the Federal Constitution, limited merely arbitrary executive action,
and perhaps legislation establishing arbitrary modes of legal pro-
cedure ; but as used in the fourteenth amendment and in the state
constitutions as a prohibition on state legislation it has been definitely
decided to extend far beyond this, and to limit arbitrary legislation
of any kind, whether affecting procedure or substantive right.
In short, as a result of this provision in our constitutions, the sys-
tem of law under which we live is practically this: The legislature
has a wide discretion to change the law and enact new law; but the
sphere of this discretion has limits; legislation that affects private
rights and which shocks existing ’conceptions of what is funda-
mentally fair and right is not within the power of a legislature to
enact; such legislation deprives. persons of their liberty and prop-
erty without due process of law, and the courts are, when...