author: Johnson, J.

text:
    The State, ex rel. Yaple, v. Creamer, Treasurer of State.

      State insurance fund, — For benefit of injured — And dependents of killed: employes — Act of legislature, 102 O. L„ 524, is valid— Not repugnant to federal or state constitution.

    The act entitled “An act to create a state insurance fund for the benefit of injured, and the dependents of killed employes,” etc., 102 O. L., 524, is a valid exercise of legislative power not repugnant to the federal or state constitutions, or to any limitation contained in either.
    (No. 13300 —
    Decided February 6, 1912.)

      In Mandamus.
    The .relator, a member of the State Liability Board of Awards, filed his petition in mandamus to compel the defendant treasurer to issue his warrant to pay an account for expenses incurred by relator as such member, and in performance of his duties under the law passed May 31, 1911, approved June 15,. 1911, to “create a state insurance fund for the benefit of injured, and the dependents of killed employes, and to provide for administration of such fund,” etc.
    Defendant has filed a demurrer to the petition and thus challenges the constitutionality of the act referred to.
    Reporter's Noté. — For the purpose of simplifying the arguments of the counsel pro and con, we have arranged the points of argument under the following heads:

      i. Police power;

    2.. Taking private property without due process of law;

      3. Due process of law — -jury trial;.

      4- Interference with freedom of contract;

    5. Impairment of existing contracts;

      6. Arbitrary classification;

      7. Conferring judicial powers;

      8. Taxation for private purposes.

      Mr. Timothy S. Hogan, attorney general; Mr. Clarence D. Laylin; Mr. Frank Davis, Ir.; Mr. /, Harrington Boyd; Mr. Wallace D. Yaple; Mr.

      ■James I. Boiilger; Mr. Daniel J. Ryan; Mr. J. L. Hampton and Mr. George B. Okey, for relator.'

      i. Police power.

    The authority of the legislature of Ohio to enact the Ohio Workmen’s Compensation Act into law, if it'1 exists at all, resides in the police powers. What is the nature and limitations of the police power? Munn v. Illinois, 94 U. S., 154, 24 L. Ed., 94.
    The legislature of the state of Ohio-has supreme and absolute power to legislate in such manner as it sees fit; upon all subjects except as that power is curtailed by constitutional limitations of the state and of the United States. People v. Hill, 153 Ill., 186; Cooley’s Const. Lim. (7 ed.), 856; Camfield v. United States, 167 U. S., 525; Prigg v. Pennsylvania, 16 Pet., 625; United States v. DeWitt, 9 Wall., 45; Holden v. Hardy, 169 U. S., 366.
    We briefly point out what we understand to be the exact definition and scope of the police power, and what we believe to be the conditions which have given rise to its exercise, by and through the act before the court in the case, at bar, in the following citations: Freund on Police Power, Secs. 1, 3, 8, 9, 12; Borgnis v. Falk Co., 133 N. W. Rep., 209; State, ex rel., v. Clausen, 65 Wash., 156, 117 Pac. Rep., 1101; Muller v. Oregon, 208 U. S., 412.
    The workmen’s compensation act is to stand or fall as a police regulation; and if it is a police regulation at all, it is such a regulation as may be enforced as to the employer by compulsion. This was decided in the cases of Noble State Bank v. Haskell, 219 U. S., 104, and Assaria State Bank v. Dolley, 219 U. S., 121.
    The first of these two cases decides squarely that a compulsory bank depositor’s guarantee act is constitutional. Now we submit'that the employer would be in precisely the same position with respect to a workmen’s compensation act as the bank is in with respect to a depositor’s guarantee act. The employer under the workmen’s ■ compensation act is the prototype of the banker under the bank depositor’s-guarantee act. C. B. & Q. Rd. Co. v. McGuire, 219 U. S., 549; Brodnax v. Missouri, 219 U. S., 285; German Alliance Ins. Co. v. Hale, 219 U. S., 307; Lindsley v. Gas Co., 220 U. S., 61; Lawton v. Steele, 152 U. S., 133; Clark v. Nash, 198 U. S., 361; Strickley v. Mining Co., 200 U. S., 527; Bacon v. Walker, 204 U. S., 311; Oil Co. v. Indiana, 177 U. S., 190; Hurtado v. California, 110 U. S., 516; Gundling v. Chicago, 177 U. S., 188; Limieux v. Young, 211 U. S., 489.
    The supreme court of Ohio has frequently illustrated, but has never ventured to define, the limits of the police power, and while illustrations abound, it is probably more clearly and logically expressed in the following cases: Commissioners v. Church, 62 Ohio St., 318; State, ex rel., v. Buckeye Pipe Line Co., 61 Ohio St., 520; Phillips v. State, 77 Ohio St., 215; State v. Marble, 72 Ohio St., 21; C. H. & D. Rd. Co. v. Sullivan, 32 Ohio St., 152; State v. Powell, 58 Ohio St., 343.
    The Ohio act was a legitimate exercise of the police power. M’Cullough v. Maryland, 4 Wheat., 316; Campbell v. Holt, 115 U. S., 628; Brown v. New Jersey, 175 U. S., 175; Twining v. New Jersey, 211 U. S., 101; Martin v. P. & L. E. Rd. Co., 203 U. S., 284, 51 L. Ed., 184, 27 Sup. Ct. Rep., 100, 8 Ann. Cas., 87.
    As to the distribution of burdens, where the interests of the public and of individuals are blended in a common service imposed by law, see Charlotte, etc., Rd. Co. v. Gibbes, 142 U. S., 386.
    One of the forms of exercising the police power is to levy a tax for purposes of regulation, instead of for revenue. Cooley on Taxation (3 ed.), 1125; 1 Dillon on Municipal Corps. (4 ed.), Sec. 357, n.; Will on Liberty, Chap. 4.
    The relief of the community from' the moral obligation to care for the injured and the dependents of those who may have been killed in industrial accidents, is a matter of general public concern. Brodhead v. Milwaukee, 19 Wis., 625; Sharpless v. Philadelphia, 21 Pa. St., 174; Cooley on Taxation (2 ed.), 125; 1 Story’s Commentaries, Sec. 924.

      2. Taking private property without due process of law.

    It is within the powers of the legislature of the state, of Ohio to deprive the employer of the three so-called common-law defenses, to-wit, the defense, of the fellow-servant rule, of the assumption of risk, and of contributory negligence, and to deprive the employe of his common-law action for a personal injury received in the due course of his employment. Ives v. So. Buffalo Ry. Co., 201 N. Y., 271.
    At an early day the legislature of Pennsylvania passed a statute abolishing the doctrine of respondeat superior in the case of persons on or near railroads and not in the employ of the railroad company. Kirby v. Penn. Rd. Co., 76 Pa. St., 506.
    A right of action of a third person against a master for negligence of his servant was a common-law right of action. Middleton v. Fowler, 1 Salk., 282; 1 Blackstone’s Comm., 431; Gray v. Portland Bank, 3 Mass., 364, 3 Am. Dec., 156; Harlow v. Humiston, 6 Cow., 189; Cooley Const. Lim. (7 ed.), 509; Vindicator, etc., Mining Co. v. Firstbrook, 36 Col., 498, 86 Pac. Rep., 313, 10 Ann. Cas., 1108; Ives v. So. Buffalo Ry. Co., 68 Misc., 643, 124 N. Y. Supp., 920; Templeton v. Linn County, 22 Ore., 313, 15 L. R. A., 730, 29 Pac. Rep., 795; Williams v. Galveston, 41 Tex. Civ. App., 63, 90 S. W. Rep., 505; Sawyer v. El Paso & N. E. Ry. Co., 49 Tex. Civ. App., 106, 108 S. W. Rep., 718; Kelly v. Pittsburgh, 104 U. S., 37, 26 L. Ed., 659; Palmer v. McMahon, 133 U. S., 669, 33 L. Ed., 776, 10 Sup. Ct. Rep., 324; McMillen v. Anderson, 95 U. S., 37, 24 L. Ed., 335.
    The New York court admits that if the workmen’s compensation act had been passed as a police regulation — that is, if there had been a public evil to be remedied by its enactment — the taking of private property which it effected, if necessary or reasonably adapted to the accomplishment of the object and the purpose of the act, and the eradication of the evil aimed at, would not have invalidated the law. This is the same as saying that in the exercise of the police power of the state, private property may be taken, provided only that the taking be no more extensive than is necessary to accomplish the legislative purpose. Bertholf v. O’Reilly, 74 N. Y., 509, 30 Am. Rep., 323; Marvin v. Trout, 199 U. S., 212, affirming 62 Ohio St., 132; State v. Boone, 84 Ohio St., 346.
    Many public undertakings are of special benefit to particular citizens, and the power to make special exactions in return for such special benefits has never been, so far as we know, denied. Reeves v. Treasurer, 8 Ohio St., 333; Hill v. Higdon, 5 Ohio St., 243.
    It clearly appears that there is no attempt here to create a liability without fault, as in the New York statute declared unconstitutional in Ives v. So. Buffalo Ry. Co., 201 N. Y., 271, and, therefore, the principle announced in that case has no application here.
    Section 21-1 does not undertake to make the employer liable for injuries to employes that come under the category of mere accidents or unavoidable casualties for which no blame attaches to anyone. It is clear that it is only in cases where the injured employe is able to show “wrongful act, neglect or default” that the three defenses are denied the employer. That being our view of the provisions of this statute, we forbear to discuss the question of “liability without fault,” further than to say that, in our judgment, if the question could be considered at all in this case, the case of State, ex rel., v. Clausen, 65 Wash., 156, 117 Pac. Rep., 1101, and a long line of cases therein cited, sustains the contention that liability without fault may be created by statute; and that the case of Bradford Glycerine Co. v. Manufacturing Co., 60 Ohio St., 560, establishes the doctrine that there may be a liability without fault or negligence, even where there is no liability created by statute.
    The abolishing of the defenses does not deprive the employer of any of his constitutional rights. The constitution does not guarantee these defenses. Neither were they created by legislative action. Therefore, the legislature may, at any time, abolish them. Re Opinion of Justices, 209 Mass., 607, 96 N. E. Rep., 308; M. P. Ry. Co. v. Mackey, 127 U. S., 205.
    It is admitted that the general assembly of Ohio could have passed a separate act abolishing all of these defenses. The Ohio plan does not in terms first abolish these defenses, but abrogates them as to those who do not elect to abide by the compensation plan. It seems to us that this is a distinction without a difference.
    The supreme court of the United States has frequently defined the meaning of the phrase “due process of law,” and in so doing has said that, “the law is, to a certain extent, a progressive science” (Holden v. Hardy, 169 U. S., 366) ; that, “the flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law” (Hurtado v. California, 110 U. S., 516); that, “liberty in the Fourteenth' Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion” (Lochner v. New York, 198 U. S., 45); that, “judges should be slow to read into the latter (referring to the provisions of the Fourteenth Amendment) a nohmus mutare as against the law-making power” (Noble State Bank v. Haskell, 219 U. S., 104); and that, “the provision has always been understood as referring only to a direct appropriation and not to consequential injuries resulting from the exercise of lawful power. It has never been supposed to have any bearing upon or to inhibit laws that indirectly work harm and loss to individuals” (Legal Tender Cases, 12 Wall., 551). Knoxville Iron Co. v. Harbison, 183 U. S., 14; Fifth Ave. Coach Co. v. New York, 221 U. S., 467; Atlantic Coast Line v. Riverside Mills, 219 U. S., 186; Provident Sav. Inst. v. Malone, 221 U. S., 660; M. J. & K. C. Rd. Co. v. Turnipseed, 219 U. S., 35.
    The supreme court of Ohio has frequently construed the provisions of Article I, Sections 1 and 2, of the state constitution, and no construction has ever been given these sections which could be reasonably construed as prohibiting the act in question; on the contrary, the court has on many occasions given expression to opinions that clearly uphold the constitutionality of the act. Adler v. Whitbeck, 44 Ohio St., 539; State, ex rel., v. Jones, 51 Ohio St., 492.
    The act is not void as in contravention of Sections 1 and 19 of the Bill of Rights or of Section 1 of the Fourteenth Amendment to the Federal Constitution, which guarantee all persons against deprivation of property without due process of law.

      Nothing is better settled than that the guaranties in question were not intended to limit the subjects upon which the police power of the state may be lawfully exerted, because all property is held under the implied obligation that the owner’s use of it shall not be injurious to the community. Jones v. Brim, 165 U. S., 182; Powell v. Pennsylvania, 127 U. S., 678; Giozza v. Tiernan, 148 U. S., 657; Deems v. Baltimore, 80 Md., 164, 26 L. R. A., 541, 45 Am. St. Rep., 339.
    It seems to be conceded by opposing counsel that it is within the scope of legislative power to abolish the fellow-servant doctrine and the contributory negligence rule. At any rate, such is the settled doctrine. 1 Hutchinson on Carriers (3 ed.), Sec. 265; St. L. & S. F. Ry. Co. v. Mathews, 165 U. S., 1; Chicago, etc., Ry. Co. v. Zernecke, 183 U. S., 582; Clark v. Russell, 97 Fed. Rep., 904.
    3. Due process of law — jury trial.

    The proposition in regard to the sufficiency and legality of the notice that the employer, who has paid the premiums required by the statute, has posted in and about his place of business a copy of the state treasurer’s receipt to the effect that he has paid said premiums, has been sustained by this court in Reckner v. Warner, 22 Ohio St., 275. Cooley Const. Lim. (7 ed.), 778; In re N. Y. C. Rd. Co., 66 N. Y., 407; Parsons v. Bedford, 3 Pet., 433, 7 L. Ed., 732; Insurance Co. v. Comstock, 16 Wall., 259, 21 L. Ed., 493.

      It is contended by opposing counsel that the act attempts to close the courts to persons seeking redress for injuries done them in their persons and deny such persons remedy by due process of law. The exact state of the law upon this point is perfectly settled in this state by B. & O. Rd. Co. v. Stankard, 56 Ohio St., 224.
    It is thus seen that the employe does not attempt to waive recourse to a court and jury for the determination of any question of law, but that he does waive the intervention of a jury for the determination of the amount of his damages, that having been determined for him, subject to his waiver, by the legislature which has committed to the State Board of Awards the mere ministerial duty of carrying out its detailed provisions. Certainly, this is a waiver of a constitutional right which may be made, and if made voluntarily is effectual.
    This exact point has never arisen in Ohio, although the form of negotiable instrument known as the “cognovit note” presents a familiar instance of the waiver of right of trial by jury prior to the accrual of cause of action. If the right of trial by jury as to an unaccrued right of action ex contractu can be waived, we fail to understand why an unaccrued right of action ex delicto and the right of trial by jury therein cannot be waived.
    We fail to see that the question of waiver even enters into the matter, but if it does, we assert with positiveness that the right of trial by jury may be waived in the manner indicated.
    We cite as an example of legislation directly affecting the right of trial by jury, but enacted for the benefit and protection of those of abnormal status, the juvenile act of this state. P. & A. Anno. G. C. Sec. 1639, et seq.; Commonwealth v. Fisher, 213 Pa. St., 48; In re Sharp, 15 Idaho, 120, 96 Pac. Rep., 563, 18 L. R. A., N. S., 886; Mill v. Brown, 31 Utah, 473, 88 Pac. Rep., 609, 120 Am. St. Rep., 935; Wisconsin Industrial School v. Clark County, 103 Wis., 651; Milwaukee Industrial School v. Supervisors, 40 Wis., 328; Prescott v. State, 19 Ohio St., 184; House of Refuge v. Ryan, 37 Ohio St., 197; Jarrard v. State, 116 Ind., 98, 17 N. E. Rep., 912; Farnham v. Pierce, 141 Mass., 203, 6 N. E. Rep., 830, 55 Am. St. Rep., 452; Kelley, Petitioner, 152 Mass., 432, 25 N. E. Rep., 615; State v. Brown, 50 Minn., 353, 36 Am. St. Rep., 651; State v. Howard, 126 La., 354; Sawyer v. El Paso & N. E. Ry. Co., 49 Tex. Civ. App., 106, 108 S. W. Rep., 719.
    There seems to be no serious claim advanced by the numerous counsel appearing for the relator that the act in question deprives the employer of any rights under Sections 5 and 16, Article I, Ohio Constitution, unless it is the right to be sued in a court, which right is not ordinarily highly prized; and no such claim is made by counsel representing the Ohio Manufacturers’ Association. But we note that counsel representing the Norfolk' & Western Ry. Co., the American Ship Building Co. and others, are much concerned over the deprivation of the employe of the right to maintain an action in court, and to have a trial by jury, while the American Federation of Labor has employed counsel to file a brief herein on their behalf in support of the constitutionality of the law.
    We contend that the employe has no constitutional right of action for mere negligence. It is only for injuries “done” him that he has a constitutional right to resort to the courts for redress, and for such injuries the act has not undertaken to deprive him of that privilege.

      4. Interference with freedom of contract.

    The principles involved in this act have already been sustained by this court, first in this regard, that there is a good and valid consideration for said contract. Railway Co. v. Cox, 55 Ohio St., 497.
    As to the optional features of the act and those restraining the liberties of contract, it is insisted by those who seek to destroy the act, passed as it was through the combined effort of the labor world, that the laborer is deprived of his constitutional guaranty of liberty of contract, in that he may not contract his labor on terms of his own choosing, and that he is deprived of a portion of his wages without his consent.
    The private liberty of contract may be restrained to the extent that the public welfare may reasonably require it. Tiedeman’s Lim. of Police Power, Sec. 1; Thorpe v. R. & B. R. Rd. Co., 27 Vt., 149; Jacobson v. Massachusetts, 197 U. S., 11; Patterson v. The Eudora, 190 U. S., 169; Frisbie v. United States, 157 U. S., 160; Soon Hing v. Crowley, 113 U. S., 703.

      5. Impairment of existing contracts.

    Surely it is competent for the legislature to change the rules of law applicable to defenses in personal injury actions, so as to affect actions brought for injuries subsequently suffered by employes who may happen to have subsisting contracts of hire at the time the law goes into effect.
    We submit that this court is already committed to the logical doctrine that rights under a contract of this kind are of no higher dignity than the right to make a contract of the same kind under the police power. State v. Gravett, 65 Ohio St., 289.

      6. Arbitrary classification.

    Another objection of the defendant is that Section 20-1 of the Ohio compensation act is in violation of Article I, Section 2, Ohio Constitution, in that said act is not of uniform operation upon individuals in the state.
    It is claimed by the opponents • to the constitutionality of the act in question that it is unconstitutional because the legislature has limited the act to cover employments in which five or more persons are regularly employed, and that these limitations are in violation of Article I, Section 2, of the constitution of the state, which provides that “Government is instituted for their equal protection and benefit,” etc.
    That such a limitation is a reasonable exercise of the police power has been decided by abundance of authorities: St. Louis Con. Coal Co. v. Illinois,
      185 U. S., 203; McLean v. Arkansas, 211 U. S., 539; Williams v. Arkansas, 217 U. S., 79; Engel v. O’Malley, 219 U. S., 129; State v. Evans, 130 Wis., 381.
    Is the act an unreasonable exercise of the police power in that it does not operate uniformly upon persons within the same category?
    A police regulation to be reasonable must equally affect all those subjects of legislation which stand in the same situation with respect to the evil to be remedied. This principle, however, as always understood, does not preclude classification. Many authorities might be cited upon this point, but we content ourselves with the following: Barbier v. Connolly, 113 U. S., 27; Kane v. Erie Ry. Co., 67 C. C. A., 653; Miller v. Crawford, 70 Ohio St., 214; Ballard v. Miss. Cotton Oil Co., 81 Miss., 507, 34 So. Rep., 533, 62 L. R. A., 407, 95 Am. St. Rep., 476.
    The supreme court of the United States has frequently passed upon this question, and we shall refer to only a few well considered cases in support of our proposition. L. & N. Rd. Co. v. Melton, 218 U. S., 36; Southwestern Oil Co. v. Texas, 217 U. S., 114; Minnesota Iron Co. v. Kline, 199 U. S., 593; El Paso & N. E. Ry. Co. v. Gutierrez, 215 U. S., 87; Employers’ Liability Cases, 207 U. S., 463.
    The supreme court of .Ohio has always upheld the reasonable classification of subjects for legislative action, and in all cases of doubt as to the wisdom of the classification made by the legislature, unless the classification is clearly arbitrary and based on no reason whatever, the doubt has been resolved in favor of the right of the legislature so to classify, and in favor of the constitutionality of the law. Allen v. Smith, 84 Ohio St., 283; State v. Hanlon, 77 Ohio St., 19; Railway Co. v. Horstman, 72 Ohio St., 93; Gentsch v. State, 71 Ohio St., 151; Senior v. Ratterman, 44 Ohio St., 661.
    Who can say that a line drawn at five is arbitrary and unreasonable and that if drawn at fifty would not be so? That is a matter which, in the nature of things, must be left largely to the discretion of the law-making power. And so the cases hold, without number, and in no tribunal so uniformly as that of the supreme court of the United States. Magoun v. Trust & Sav. Bank, 170 U. S., 293; M. K. & T. Ry. Co. v. May, 194 U. S., 267; Field v. Asphalt Paving Co., 194 U. S., 618; A. T. & S. F. Ry. Co. v. Matthews, 174 U. S., 106; Orient Ins. Co. v. Daggs, 172 U. S., 557; People v. Coon, 67 Hun, 525; Cargill Co. v. Minnesota, 180 U. S., 452.
    Classification is permissible under Section 26, Article II, of the state constitution, which provides: “All laws of a general nature shall have a uniform operation throughout the state.” State v. Powers, 38 Ohio St., 63; Driggs v. State, 52 Ohio St., 51; Cincinnati v. Steinkamp, 54 Ohio St., 295; Platt v. Craig, 66 Ohio St., 79.

      y. Conferring judicial powers.

    The phrase “due process of law” has application in our problem, not only to the rights created by the act, but also rather to the remedy provided by the act to make the putting into operation of the same effective.
    The executive arm of every state government disposes of many problems which, considered by themselves, are purely judicial in character. This principle, as the authorities show, is illustrated in the following examples: 1. In the levying of special assessments; 2. in the exercise of the power of eminent domain; 3. in the collection of various taxes; 4. in the adjudication of those controversies (of purely judicial nature) which deal with questions of account between tax collectors and the state, in which the state may finally determine all issues through its administrative agents. Murray's Lessee v. Land & Imp. Co., 18 How., 272, 15 L. Ed., 372.
    We have already pointed out that the State Liability Board of Awards does not seek to determine controveries between private parties. DeCamp v. Archibald, 50 Ohio St., 618; State, ex rel., v. Harmon, 31 Ohio St., 250; State, ex rel., v. Hawkins, 44 Ohio St., 98; France v. State, 57 Ohio St., 1.
    As to the alleged attempted delegation of legislative power to an executive tribunal, if the court deems this point of sufficient importance to investigate the authorities, we respectfully cite the following, as defining the limits within which discretionary power of this kind can be delegated to executive tribunals: Field v. Clark, 143 U. S., 649; In re Kollock, 165 U. S., 526; Railroad Co. v. Commissioners, 1 Ohio St., 77; Union Bridge Co. v. United States, 204 U. S., 364; Monon

      gahela Bridge v. United States, 216 U. S., 177; Martin v. Witherspoon, 135 Mass., 175; Butterfield v. Stranahan, 192 U. S., 470; St. L. & I. M. Ry. Co. v. Taylor, 210 U. S., 281; Isenhour v. State, 157 Ind., 517.
    The state board of awards is a governmental agency of administrative character, authorized to investigate certain questions coming before it and to determine whether or not certain individuals are entitled to receive an award out of a fund administered by the board. Merely because these functions are vested in it, the board is not and cannot be treated as a court. It must be borne in mind that when it is not clear whether an act is wholly the exercise of legislative, executive or judicial power, it is within the power of the general assembly, as the depository of the legislative power of the state, to determine by which department it shall be exercised. Fairview v. Giffee, 73 Ohio St., 183; Zimmerman v. Canfield 42 Ohio St., 463; Bowersox v. Watson, 20 Ohio St., 507; State v. Guilbert, 56 Ohio St., 575.
    The performance of the administrative functions of the board provided for in this act is not the exercise of judicial power, and even if that were quasi-judicial, it would not be in contravention of the constitution.
    In Ohio nearly every state officer or board exercises to a certain extent quasi-judicial powers, in certain cases and hearings which come before them. State v. Bryce, 7 Ohio (pt. 2), 82. The governor exercises such powers (State, ex rel., v. Hawkins, 44 Ohio St., 98); the secretary of state does also (State, ex rel., v. Taylor, 55 Ohio St., 61, Chapman v. Miller, 52 Ohio St., 166), and also the attorney-general, the auditor of state and the superintendent of insurance. Thompson v. Watson, 48 Ohio St., 552; State, ex rel., v. Moore, 42 Ohio St., 103. To these instances may be added the numerous boards now in existence, such as the state board of medical registration, the tax commission, board of review, public utilities commission, and others. State, ex rel., v. Chittenden, 112 Wis., 569; State, ex rel., v. Wharton, 117 Wis., 558; State, ex rel., v. Houser, 122 Wis., 534; State, ex rel., v. Trustees, 138 Wis., 133.
    It is true that the legislature cannot delegate its power, but it can make laws to delegate power to determine some fact or things upon which the law makes or intends to make its own action depend. United States v. Grimaud, 220 U. S., 506.

      8. Taxation for private purposes.

    The state has the power to regulate industries for the purpose of protecting the economic welfare of the community by levying a tax in the form of an insurance obligation upon the same for the benefit of the employes injured while employed in such industries.
    In regard to the domain of the subject-matter in which the taxing power may obtain, see Cooley on Taxation (7 ed.), 25; State Tax, etc., 15 Wall., 315; Providence Bank v. Billings, 4 Pet., 514.
    As to the limitations of the rights of the courts to interfere with the taxing power, see Connolly v. Sewer Pipe Co., 184 U. S., 562; the cases which sustain the bank depositors’ guarantee acts, Noble

      State Bank v. Haskell, 219 U. S., 104, 31 Sup. Ct. Rep., 299, Shallenberger v. First State Bank, 219 U. S., 114; sheep dog fund cases, Holst v. Roe, 39 Ohio St., 344, Van Horn v. People, 46 Mich., 183, Cole v. Hall, 103 Ill., 30, Mitchell v. Williams, 27 Ind., 62, McGlone v. Womack, 129 Ky., 274, 111 S. W. Rep., 688, Blair v. Forehand, 100 Mass., 136, 97 Am. Dec., 82, 1 Am. Rep., 94, State v. Hipp, 38 Ohio St., 225; a case which sustains an act to tax saloonists to create a fund for the benefit of inebriates, State v. Cassidy, 22 Minn., 312; cases which sustain acts which create a fund for the benefit of sick and injured firemen, Fire Department v. Noble, 3 E. D. Smith (N. Y.), 440; Fire Department v. Wright, 3 E. D. Smith (N. Y.), 453; Exempt Firemen’s Fund v. Roome, 29 Hun, 394, 93 N. Y., 313, 45 Am. Rep., 217; Firemen’s Benev. Assn. v. Lounsbury, 21 Ill., 511, 74 Am. Dec., 115; Fire Department v. Helfenstein, 16 Wis., 136.
    It is argued that the act provides for the payment, out of the state treasury, of the expenses of the board of awards, and, therefore, public funds are thus diverted to private use. But where .is there any private use in this? The board of awards is a state agency of administrative character, appointed to supervise the state insurance fund, which is provided for by the state in the exercise of its police power. There is no private purpose whatever subserved. On the contrary, the general public benefits thereby. Even if it were true that these benefits were not equally distributed among the public, this would not render the act invalid. State, ex rel., v. Toledo, 48 Ohio St., 138; Union Transit Co. v. Kentucky, 199 U. S., 203; Kelly v. Pittsburgh, 104 U. S., 78.
    There can be no doubt whatever that the legislature has power to levy special assessments for the payment of the expense of governmental supervision of certain lines of business, which the state, in the exercise of its police power, may supervise. Cin. Gas Light & Coke Co. v. State, 18 Ohio St., 237.

      Messrs. Lents, Karns, Linton & Hengst; Mr. S. PI. Tolies; Mr. H. B. Arnold; Mr. H. H. McKeehan; Messrs. M. B. & H. PI. Johnson; Mr. T. H. Hogsctt; Messrs. Outhwaite, Linn & Thurman; Mr. D. N. Postlewaite; Mr. Theodore W. Reath; Mr. F. M. Rivinus and Mr. Henry Bannon, for respondent.

      i. Police power.

    The entire act is an unlawful and unwarranted exercise of the police power of the state. Beer Co. v. Massachusetts, 97 U. S., 25; Smiley v. MacDonald, 42 Neb., 5; Commonwealth v. Penn. Canal Co., 66 Pa. St., 41; State v. New Orleans, 113 La., 371; Cal. Reduction Co. v. Sanitary Reduction Works, 126 Fed. Rep., 29, 199 U. S., 306; State v. Boone, 84 Ohio St., 351; Iler v. Ross, 64 Neb., 710, 90 N. W. Rep., 869, 57 L. R. A., 895; Smith v. L. S. & M. S. Ry. Co., 114 Mich., 460; People, ex rel., v. Warden, 157 N. Y., 116; State, ex rel., v. Froehlich, 115 Wis., 32.

      Such being the scope and limitations on the exercise of the police power, the question then arises as to the duty of the courts where an exercise of the power is questioned: Bonnett v. Vallier, 136 Wis., 193; Mugler v. Kansas, 123 U. S., 623, 31 L. Ed., 205; In re Jacobs, 98 N. Y., 98, 50 Am. Rep., 636; Equitable Loan & Security Co. v. Edwardsville, 143 Ala., 183, 38 So. Rep., 1016, 111 Am. St. Rep., 34; Cleveland v. Construction Co., 67 Ohio St., 197; Black on Const. Law (3 ed.), 390.
    In so far as the employer is authorized to deduct ten per cent, of the premiums paid by him from the wages of his employes, and in so far as the act deprives the employe of his right to continue at his trade, or attempts to force the benefits of the act upon him in lieu of his right of action against his employer, there is an arbitrary invasion of the rights of the employe which cannot be justified as a valid exercise of the pokce power. Potter’s Dwarris on Stats., 458; State v. Julow, 129 Mo., 163; Palmer & Crawford v. Tingle, 55 Ohio St., 423; Lochner v. New York, 198 U. S., 56; Adair v. United States, 208 U. S., 174.
    The Ohio compensation act does not purport to have anything to do with the health or safety of the employe, nor is that the object sought to be attained by its enactment. It is a complete scheme to provide for compensation by way of insurance for injuries growing out of the employment, with fixed liabilities on the employers and definite benefits to the employes without regard to legal liability. Ives v. So. Buffalo Ry. Co., 201 N. Y., 271.

      As illustrations of attempted invasions of constitutional rights which the courts have refused to justify as valid exercises of the police power, are the following: In re Preston, 63 Ohio St., 428; State v. Iron Co., 1 O. S. U., 254, cited 55 Ohio St., 442; Miller v. Crawford, 70 Ohio St., 207; Williams & Thomas v. Preslo, 84 Ohio St., 328.
    If we are correct in our conclusion that the right of the defense of the assumption of risk is a right of private property, and that this act seeks to take away such private property without due process of law, then, if the act is to be maintained at all, it must be so maintained under the police power. Fisher Co. v. Woods, 187 N. Y., 90; Ohio & Miss. Ry. Co. v. Lackey, 78 Ill., 55; Camp v. Rogers, 44 Conn., 291; Ham v. McClaws, 1 Bay (S. Car.), 93; Welch v. Wadsworth, 30 Conn., 150; In re Aubry, 36 Wash., 308, 78 Pac. Rep., 900; Bessette v. People, 193 Ill., 334, 62 N. E. Rep., 215, 56 L. R. A., 558; Godcharles v. Wigeman, 113 Pa. St., 431, 6 Atl. Rep., 354; Low v. Rees Printing Co., 41 Neb., 127.

      Taking private property without due process of law.

    Sections 9, 20-1 and 21-1 of the act to seek to take property without due process of law.
    The question raised on comparison of Section 1, Article XIV, United States Const., and Sections 2 and 16, Article II, Ohio Const.., is, that the common law, and well defined and understood rights of the employer and employe are taken away from them 'without due process of law.
    The right to bring and maintain an action at law, as well as to defend an action at law is, property under the constitution. Section 21-1 seeks to take away from the employer the defense of assumption of risk. The risk of any particular business or occupation is inseparable from, and inherent in, that business or occupation. The employers’ liability act of New York sought to take away the assumed risk' of the employe, but was declared unconstitutional by the supreme court.
    The term “due process of law” has not a strict legal definition. The courts have chosen to leave it susceptible of a construction applicable to the facts in each case. Davidson v. New Orleans, 96 U. S., 102; Holden v. Hardy, 169 U. S., 366, 42 L. Ed., 780.
    Section 21-1 attempts to provide an election for employers of the state between accepting the benefits of the act and remaining subject to the present system.
    We claim that the attempt to abolish the defense of assumed risk is unconstitutional by reason of violating the above cited constitutional provisions. 2 Austin’s Jurisprudence, 58; 2 Kent’s Commentaries (13 ed.), 260 n.
    The leading statement of these fundamental principles is found in Farwell v. Boston & W. Rd. Corp., 4 Metc., 49, 38 Am. Dec., 339.
    The question is more clearly raised in Ohio, in the case of an employer who elects to remain outside of the provisions of the act. The risk of the business or occupation is thrown clearly upon such employer by abolishing the doctrine of assumed risk. In other words, even though an 'employer may exercise every precaution required by the law of Ohio, yet without fault on his part he is made liable for the risks of the occupation. The fundamental principle of the^ English law that there can be no liability imposed without contract or fault of the party concerned, is thus attacked, and, as we claim, one of the cornerstones of English jurisprudence is involved. Denver & R. G. Rd. Co. v. Outcalt, 2 Colo. App., 395, 31 Pac. Rep., 177; Catril v. U. P. Ry. Co., 2 Idaho, 576, 21 Pac. Rep., 416; Thompson v. Northern Pac. Rd. Co., 8 Mont., 279; Jensen v. U. P. Rd. Co., 6 Utah, 253, 21 Pac. Rep., 994, 4 L. R. A., 725; Camp v. Rogers, 44 Conn., 291; Zeigler v. S. & N. Ala. Rd. Co., 58 Ala., 594; Ore. Ry. & Nav. Co. v. Smalley, 1 Wash., 206, 23 Pac. Rep., 1008, 22 Am. St. Rep., 143; Atchison & Neb. Rd. Co. v. Baty, 6 Neb., 37, 29 Am. Rep., 356.
    The act deprives employes of recourse to the courts, of a trial by jury, and of rights guaranteed by the constitution, both state and federal. Sections 5 and 16, Article I, Ohio Const.; VII and XIV Amendments to United States Const.; Cotting v. Stock Yards Co., 183 U. S., 79; Ex parte Young, 209 U. S., 123; State v. Gardner, 58 Ohio St., 599; Live Stock, etc., Assn. v. Crescent City, etc., Co., 1 Abb. (U. S.), 388; B. & O. Rd. Co. v. Stankard, 56 Ohio St., 224; Byers v. Printing Co., 84 Ohio St., 422; Borgnis v. Falk Co., 133 N. W. Rep., 209; Opinion of Justices, 209 Mass., 607, 96 N. E. Rep., 308; Answer of Justices, 122 Mass., 604; Opinion of Justices, 5 Metc., 597;
      Opinion of Justices, 126 Mass., 557; State, ex rel., v. Kurts, 1 O. D, 266, 8 O. N. P., 152, 21 C. C., 261; State v. Hubbard, 22 C. C., 252, 12 C. D., 87, 65 Ohio St., 574; State, ex rel., v. Clausen, 117 Pac. Rep., 1120; Edson v. Crangle, 62 Ohio St., 49.
    The Ohio workmen’s compensation act deprives workmen and operatives of their rights of liberty and property (including their right to remedy by due course of law for injuries done them in their persons), without due process of law in contravention of Sections 1, 16 and 19, Article I, Ohio Constitution, and of the XIV Amendment to the constitution of the United States, in that
    a. It deprives them of the part of their pay which employers accepting the act are compelled to retain and pay into the state insurance fund to make up ten per cent, thereof; and
    b. It deprives them of their right to secure reparation in courts of justice for personal injuries suffered by them through the employer’s negligence.
    All workmen or operatives employed by an employer who has accepted the provisions of the act, are deprived of a part of their pay which the employer under authority of the act retains and pays into the state insurance fund. This is undeniably a taking of the employe’s property. Hubbard v. State, 65 Ohio St., 574; State v. Guilbert, 56 Ohio St., 575.
    The right of the workman to contract freely for the sale of his labor is a right of liberty and property within the meaning of the constitutional provisions hereinabove quoted. This proposition is so universally recognized that no extensive citation of authorities is needed in support thereof. State v. Robins, 71 Ohio St., 273.
    In this state the legislation most strongly resembling the feature of the workmen’s compensation act now under discussion has been uniformly held by this court to unconstitutionally deprive the employer and employe of liberty and property in a way which cannot be justified under the police power. State v. Iron Co., 31 W. L. B., 371, 33 W. L. B., 6; Marsh v. C. L. Poston & Co., 35 W. L. B., 327; Board of Education v. State, 51 Ohio St., 531.
    That the legislature has the power to so deprive employers of the defense of the fellow-servant rule, is conceded. Possibly the same is true as to the defense of contributory negligence, though in our opinion, this is exceedingly doubtful. It would also be true as regards the defense of the assumption of risk, but for the fact that such right is clearly one of private property, and being such right of private property, it cannot be taken away without due process of law, and any law passed by the legislature attempting to so do, must necessarily be unconstitutional and void, unless it can be justified and maintained under the exercise of the police power of the state. Coal Co. v. Rosser, 53 Ohio St., 24; Turnpike Co. v. Parks, 50 Ohio St., 579; People v. Otis, 90 N. Y., 48; State v. Gravett, 65 Ohio St., 308; State v. Powell, 58 Ohio St., 344; People v. Gillson, 109 N. Y., 389.
    3. Due process of law — jury trial.

    Sections 21, 23 to 34, 36 and 36-1 of said act seek to take away the right to trial by jury of all persons electing or compelled to come under its provisions, in contravention of Article VII, United States Const., Art. II, Ordinance of 1787, and Section 5, Art. I, Ohio Const.
    In other words, these sections seek to provide a means whereby a certain class of employers and employes can elect or are compelled, if you choose, to submit all matters pertaining to injuries on the part of the employe to a board of arbitration, thereby waiving and dispensing with courts, rules of evidence, a jury, right of appeal and error. This, we claim, cannot constitutionally be done, either under the guise of an election or otherwise. Mills v. Noles, 1 Ohio, 534; Work v. State, 2 Ohio St., 297; Norton v. McLeary, 8 Ohio St., 209; Reckner v. Warner, 22 Ohio St., 275; Gunsaullus v. Pettit, 46 Ohio St., 27; Turnpike Co. v. Parks, 50 Ohio St., 568; 24 Cyc., 175; Sharp v. Mayor, etc., 18 How. Pr., 213; Bradley v. Fertilising Co., 2 N. Y. Civ. Pr., 50.
    Can a jury be waived by the mode of election provided in the act? Myers v. Jenkins, 63 Ohio St., 101.
    The right is not waived by an uncertain agreement to submit prospective disputes to arbitration. The agreement must be certain and the matter in dispute in existence. 24 Cyc., 157; Rogers v. Davidson, 4 Penny. (Pa.), 472; Sanford v. Accident Assn., 147 N. Y., 326; Miles v. Schmidt, 168 Mass., 339.
    Section 16, Art. I, of our Ohio constitution says that “every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law.” The workman or operative receives personal injuries. He cannot resort to the courts. He can only get the compensation prescribed by the act and allowed by the state liability board of awards. Has the employe been given a remedy by due course of law for the injury done him in his person? It is submitted that clearly he has not. Byers v. Printing Co., 84 Ohio St., 408; Caldwell v. Carthage, 49 Ohio St., 348.
    In the first place, the employe does not in fact voluntarily consent to any deduction from his wages nor voluntarily waive his common law and constitutional rights to recover damages for personal injuries in courts of justice. He has to submit to the deduction from his wages and waive his rights to his common law and constitutional remedies or lose his job.
    Again, the act is designed to force all employers to accept it, by depriving them of the defenses of the fellow-servant doctrine, assumption of risk, and contributory negligence. Suppose all employers accept the act. Do the employes have an option not to accept it? No, the truth is that the employers by accepting the act compel the employes to accept it.
    The Ohio workmen’s compensation act violates the right of trial by jury in contravention of Section 5, Art. I, Ohio Constitution, in that the determination of liability for personal injuries to workmen and operatives and the amount of damages recoverable therefor is taken entirely away from the jury and determined by the legislature and the state liability board of awards. Mason v. State, 58 Ohio St., 55.

      4. Interference zvith freedom of contract.

    The entire purpose of Section 21-1 is to deprive employers of a real and free election to contract or not under Section 20-1. Barron v. Burnside, 121 U. S., 186; Security Mutl. Life Ins. Co. v. Prewitt, 202 U. S., 246; Street v. Elec. Supply Co., 160 Ind., 338, 61 L. R. A., 154.
    5. Impairment of existing contracts.

    Section 20-1 of the act makes no provision for existing contracts between employer and employe at the time the employer elects to come under the terms of said act.
    In contracts existing at the time an employer elects to enter under the terms of this act, the assumption of risk by the employe is a vital and essential part. While not expressed, yet it is an implied part of the terms of employment. Changing the assumption of risk from the employe to the employer who does not come under the provisions of the act is, in effect, making a new contract between them. Farwell v. Railway Corp., 4 Metc., 56; Ireland v. Turnpike Co., 19 Ohio St., 369; Weil v. State, 46 Ohio St., 450; Woodruff v. State, 3 Ark., 285; People v. Fowler, 9 Cal., 85.
    The Ohio workmen’s compensation act impairs the obligation of contracts in contravention of Section 28, Article II, of the Constitution of Ohio, and of Section 10, Article I, Constitution of the United States, in that workmen or operatives, having contracts made previous to the passage of the act and continuing in force a definite time thereafter with any employer accepting the act, are deprived of part of their contractual compensation for their labor, and even of all rights under the contract unless they waive their constitutional rights to judicial redress for personal injuries. Goodale v. Fennell, 27 Ohio St., 426.

      6. Arbitrary classification.

    Sections 20-1, 20-2 and 21-1 of said act are not of uniform operation upon the individuals of the state.
    A reading of these sections will disclose that the act is not of uniform operation throughout the state, but is class legislation.
    Section 26, Article II, Ohio Constitution, providing that all laws of a general nature shall have uniform operation throughout the state, is not declaratory, but mandatory, and a statute in violation of it is void. Ex parte Falk, 42 Ohio St., 638; State, ex rel., v. Ellet, 47 Ohio St., 90; Gaylor v. Hubbard, 56 Ohio St., 37; Hixson v. Burson, 54 Ohio St., 470; State v. Harmon, 13-23 O. C. C., 292, 66 Ohio St., 249; C. C. C. & St. L. Ry. Co. v. State, 26 C. C., 348; French v. Shirley, 9 Dec., 181, 7 N. P., 26; Kane v. Railway Co., 14 O. F. D., 542; State, ex rel., v. Ferris, 53 Ohio St., 314; Senior v. Ratterman, 44 Ohio St., 678.
    The law seems to be so well settled in Ohio on this proposition that we deem it unnecessary to cite any outside authorities. The legislature attempting in this act to make this law apply arbitrarily to an employer employing five men, thus discriminating and taking away from employers employing four men and compelling the employer of four men and his employes to pay a tax to carry out the provisions of this act for the benefit of the favored class under this act, is plainly unconstitutional.
    The act makes an unjust and arbitrary classification and does not affect all who are within the reason of its enactment. It is to be noted that this classification does not purport to be based upon the hazard of an employment or to relate to the health, or safety of the employe, or to the conditions of the employment. It is fundamental that every classification by legislative act must be reasonable, and must rest upon distinctions differentiating the classes created. In other words, the classification must not be arbitrary. Miller v. Crawford, 70 Ohio St., 207; Kane v. Railroad Co., 133 Fed. Rep., 681; Engel v. O’Malley, 219 U. S., 138; Railway Co. v. Westby, 178 Fed. Rep., 619; Connolly v. Union Sewer Pipe Co., 184 U. S., 540.
    The classification provided in the Ohio compensation act is clearly invalid under the principles announced in the following cases: Sipe v. Murphy, 49 Ohio St., 536; State v. Gardner, 58 Ohio St., 599; Williams v. Donough, 65 Ohio St., 499; Gentsch v. State, ex rel., 71 Ohio St., 151; Williams & Thomas v. Preslo, 84 Ohio St., 328; Cotting v. Godard, 183 U. S., 79; State v. Haun, 61 Kans., 146, 59 Pac. Rep., 340; Ballard v. Cotton Oil Co., 81 Miss., 507, 34 So. Rep., 533, 62 L. R. A., 407; Railway Co. v. Railroad Commission, 173 Ind., 469, 90 N. E. Rep., 1101;
      Bedford Quarries Co. v. Bough, 168 Ind., 671, 14 L. R. A., N. S., 418; Commonwealth v. Clark, 195 Pa. St., 634.
    The Ohio workmen’s compensation act is unjustly and unwarrantably discriminatory in contravention of Section 2, Art. I, Ohio Constitution, and of the XIV Amendment to the United States Constitution in the following respects:
    a. It unjustly and unwarrantably discriminates between “workmen and operatives” and other persons;
    b. It unjustly and unwarrantably discriminates between employers of five or more workmen or operatives and employers of less than five workmen .or operatives;
    c. It unjustly and unwarrantably discriminates between workmen or operatives engaged in a common employment with four or more other workmen or operatives and workmen or operatives engaged in a common employment with less than four other workmen or operatives. C. C. C. & St. L. Ry. Co. v. State, 22 C. C., 348, 4 C. C., N. S., 126, 70 Ohio St., 506.
    Sections 20-1, 20-2, 21-1 and 21-2 provide for a classification which is unnecessary, arbitrary and fictitious; exempt individuals of the same class; grant privileges to some which are denied to others of the same class and impose restrictions and burdens upon some from which others of the same class are exempt.
    Classification cannot rest on legislative dictum but must rest always in reason. In a line of cases terminating with L. & N. Rd. Co. v. Melton, 218 U. S., 36, the, supreme court of the United States has upheld classification by railroads because of the peculiar hazard of their business. Many other classifications by business have been sustained, as, for instance, the classification in the Massachusetts’ workmen’s compensation act, which exempts “domestic servants and farm laborers.”
    But in the Ohio act we have a classification by mere numbers which is (a) appropriate doubtless as to the defense of fellow-servant; which is (b) exceedingly dubious as to the defense of assumed risk, and (c) without reason and arbitrary as to the defense of contributory negligence, because the conduct of the injured individual himself has no relation to the number of employes. State v. Hogan, 63 Ohio St., 209; Josma v. Western Steel Car Co., 249 Ill., 508, 94 N. E. Rep., 945.
    The decisions are numerous in the courts of last resort of the states wherein a classification of employers has been sustained only where founded upon reason. The most noteworthy cases are those upholding employers’ liability acts limited to businesses of peculiar hazard: Deppe v. Railway Co., 36 Ia., 52; Akeson v. Railway Co., 106 Ia., 54; Luce v. Railway Co., 67 Ia., 75, 24 N. W. Rep., 600; Stroble v. Railway Co., 70 Ia., 555; Reddington v. Railway Co., 108 La., 96; Dunn v. Railway Co., 130 La., 580; Lavellee v. Railway Co., 40 Minn., 249; Johnson v. Railroad Co., 43 Minn., 222; Jemming v. Railroad Co., 96 Minn., 302, 104 N. W. Rep., 1079, 1 L. R. A., N. S., 696; Railway Co. v. Medaris, 60 Kans., 151; Indianapolis Trac. & Term. Co. v. Kinney, 171 Ind., 612.
    In all of these cases the statutes were restricted by their language or by construction so as to apply to a peculiar hazard and thus the constitutionality of the state was upheld as a classification of hazardous employment. Givens v. Railway Co., 49 So. Rep., 180; Gulf, Colo. & S. F. Ry. Co. v. Ellis, 165 U. S., 150; Coal Co. v. Rosser, 53 Ohio St., 23; Barbier v. Connolly, 113 U. S., 31.
    y. Conferring judicial powers.

    In Sections 17, 18, 21, 23, 24, 26, 27, 28, 32 and 36, the legislature seeks to usurp judicial power and also seeks to vest judicial power in a tribunal from which no appeal lies to any court, in contravention of Section 32, Art. II, Section 1, Art. IV, and Section 5, Art. I, Constitution of Ohio. Cooley Const. Lim. (7 ed.), 131; Gilbert v. Priest, 65 Barb., 448; Callahan v. Judd, 23 Wis., 348.
    So, too, under our constitution were we guaranteed the right to a trial by jury under instructions of law by a judge learned in the law. Under this act we lose both of these rights and in their place are offered the judgment of three men in whose choosing we have no voice .and whose only prescribed qualifications are that “not more than two of them shall belong to the same political party.” State v. Hyde, 121 Ind., 33; Sanders v. Cabaniss, 43 Ala., 180; State v. Leclair, 86 Me., 531; Lewis v. Webb, 3 Greenl. (Me.), 332; State v. Hampton, 13 Nev., 442; Mitchell’s Admr. v. Champaign County, 10 O. C. D., 801.
    When the legislature invested the board with the power to decide all questions of fact, it attempted to invest it with judicial power greater than that ever enjoyed by the courts themselves.

      Sections 17 and 18 of said act seek to delegate legislative power. Maxwell v. State, 40 Md., 273; People v. Bennett, 29 Mich., 451; Fogg v. Union Bank, 60 Tenn. (1 Baxt), 435; Winters v. Hughes, 3 Utah, 443, 24 Pac. Rep., 759; Scott v. Clark, 1 Ia., 70; Pilkey v. Gleason, 1 Ia., 522; Anderson v. Manchester Fire Assur. Co., 59 Minn., 182, 63 N. W. Rep., 241, 28 L. R. A., 609, 50 Am. St. Rep., 400.
    We contend that the act is unconstitutional as being a legislative encroachment on the judicial power.
    By Section 1, Article IV, of the Ohio Constitution, all other courts created by the legislature must be inferior to the supreme court. Logan Branch Bank, Ex parte, 1 Ohio St., 432.
    By the terms of Section 16, Article I, the remedies administered by courts must be “by due course of law;” and by Article II, of the Ordinance of 1787, “according to the course of the common law.” The board created by the present act is not required to proceed by any course or process heretofore known, but by the express provisions of Section 36-1.
    It has been frequently decided in this state that any legislation which confers judicial power on any person or board, other than courts, is invalid. State v. Guilbert, 56 Ohio St., 575.

      8. Taxation for private purposes.

    Sections 37, 40 and 41 of said act seek to appropriate state funds raised by taxation for a private purpose, in contravention of Section 19, Article I, Section 1, Article II, and Section 2, Article XII, Constitution of Ohio.
    These sections of the act seek to appropriate an amount not to exceed one hundred and fifteen ¡thousand dollars per year, out of the state treasury to pay the expenses and salaries of this board of awards. This money is not raised by any special tax from the persons sought to be benefited by the administration of this fund,. but is raised by a general tax, levied against all the citizens throughout the state.
    The question we raise is, can the legislature appropriate out of the state treasury the funds of the state raised by a uniform levy upon its citizens, for the purpose of paying the salaries and expenses of this board, whose sole and only duties are to administer this private fund raised by this act, to an arbitrary class of employes in the state? Lowell v. Boston, 111 Mass., 454, 15 Am. Rep., 39; People v. Salem, 20 Mich., 452; Allen v. Jay, 60 Me., 124, 11 Am. Rep., 185; Lucas County v. State, 75 Ohio St., 114; 1 Story on the Constitution, 699; Cooley’s Const. Lim. (7 ed.), 702; Black on Const. Law (3 ed.), 442; Judson on Taxation, 444; Gray on Lim. of Taxing Power, 123; Loan Assn. v. Topeka, 20 Wall., 655; Wisconsin Keeley Inst. v. Milwaukee County, 93 Wis., 153; Putney Bros. Co. v. Milwaukee County, 108 Wis., 554; State, ex rel., v. Froehlich, 118 Wis., 129; State, ex rel., v. Switzler, 143 Mo., 287.
    The act directs the state to engage in the mutual insurance business and to use public funds for a purely private purpose. Board of Education v. State, 51 Ohio St., 531.
   Johnson, J.

The statute in question provides for the creation of a State Liability Board of Awards, which shall establish a state insurance fund, from premiums paid by employers and employes in the manner provided in the act. It provides a plan of compensation for injuries, not wilfully self inflicted, resulting from accidents to employes of employers, both of whom have voluntarily contributed to the fund in the proportion of 10 and 90 per cent, respectively. It applies only where the employer has five or more operatives regularly in the same business or in or about the same establishment. An employer who complies with the act is relieved from liability to respond in damages at common law, or by statute, for injury or death of an employe who has complied with its provisions, except when the injury arises from the wilful act of himself or officer or agent, or from failure to comply with any law or ordinance providing for protection of life and safety of employes, in which event the employe or his representatives have their election between a suit for damages and a claim under the act. Employers of five or more who do not pay premiums into the fund are deprived in actions against them of the common law defenses of the fellow servant rule, the assumption of risk and of contributory negligence. Where the parties are operating under the act, the injured employe and his dependents in case of death, are compelled to accept compensation from the insurance fund in the manner provided, except in the cases above set forth.

The objections to the validity of the act are stated by different counsel at the bar, and in their briefs, under various heads.

All of them are substantially comprised in the following: First. That it is an unwarranted exercise of the police power and directs the state to use public funds for private purposes. Second. That Sections 20-1 and 21-1 take private property without due process of law in contravention of Sections 5, 16 and 19, Art. 1, of the Constitution of Ohio, and the Fourteenth Amendment to the Constitution of United States, in that it deprives employers of the defense of assumption of risk, and deprives the employe, of part of his wages to be paid to the state insurance fund, of the right to sue for injuries sustained, of recourse to the courts, and of a trial by jury. Third. That it deprives parties of the freedom of contract and impairs the obligations of contracts. Fourth. That it makes an unjust and arbitrary classification and does not affect all who are within its reason.

Sections 20-1 and 21-1 are as follows, viz.:

“Sec. 20-1. Any employer who employs five or more workmen or operatives regularly in the same business or in or about the same establishment who shall pay into the state insurance fund the premiums provided by this act, shall not be liable to respond in damages at common law or by statute, save as hereinafter provided, for injuries or death of any such employe, wherever occurring, during the period covered by such premiums, provided the injured employe has remained in his service with notice that his employer has paid into the state insurance fund the premiums provided by this act; the continuation in the service of such employer with such notice, shall be deemed a waiver by the employe of his right of action as aforesaid.

“Each employer paying the premiums provided by this act into the state insurance fund shall post in conspicuous places about his place or places of business typewritten or printed notices stating the fact that he has made such payment; and the same, when so posted, shall constitute sufficient notice to his employes of the fact that he has made such payment; and of any subsequent payments he may make after such notices have been posted.

“Sec. 21-1. All employers who employ five or more workmen or operatives regularly in the same business, or in or about the same establishment who shall not pay into the state insurance fund the premiums provided by this act, 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 any of the employer’s' officers, agents or employes, and also to the personal representatives of such employes where death results from such injuries and in such action the defendant shall not avail himself or itself of the following common-law defenses:

“The defense of the fellow-servant rule, the defense of the assumption of risk, or the defense of contributory negligence.”

The law was passed after a report referred to in the briefs, of a commission appointed by the governor, in obedience to a statute passed for that purpose. The report was prepared after an exhaustive research into industrial conditions in many countries, and an examination of laws, which have been passed in the effort to improve such conditions. Substantially its conclusions are, that the system which has been followed in this country, of dealing with accidents in industrial pursuits, is wholly unsound, that there is an intelligent and widespread public sentiment which calls for its modification and improvement, and that the general welfare requires it. That there has been enormous waste under the present system, and that the action for personal injuries by employe against employer no longer furnishes a real and practical remedy, annoys and harasses both, and does not meet the economic and social problem which has resulted from modem industrialism. Conceding the desirability of improvement, of legislative and governmental action, and the good results in other countries which have no written constitution to limit the legislative power, we in this country have the problem of devising a plan which shall not infringe the fundamental law.

It is apparent, from a contemplation of the whole enactment and its scope and purpose, as well as of the participation of the state in its administration, that it must find its validity, if at all, in the police power of the state.

There is now (it can be fairly said) general concurrence in the meaning of the term “police power” and as to its extent.

Professor Freund in his work says at Section 2:

“The term 'police power’ has never been circumscribed. It means at the same time a power and function of government, a system of rules and an administrative organization and force.”

And in Section 3, after discussing its nature and aims, he says:

“It will reveal the police power not as a fixed quantity, but as the expression of social, economic and political conditions. As long as these conditions vary, the police power must continue to be elastic, i. e., capable of development.”

In State, ex rel. Monnett, v. Pipe Line Company, 61 Ohio St., 520, as to the constitutionality of the Ohio anti-trust law, it is said: “The definite proposition of counsel upon this point is that although the act is the exercise of legislative power, it transcends the provisions of the state and federal constitutions, which render inviolable the rights of liberty and property, which include the right to make contracts. It would be difficult to place too high an estimate upon these guaranties, and they include the right to make contracts. But it is settled that these guaranties are themselves limited by the public welfare or the exercise of the police power.”

In Phillips v. State, 77 Ohio St., 216, it is said: “It is almost an axiom that anything which is reasonable and necessary to secure the peace, safety, morals and best interests of the commonwealth may be done under the police power; and this implies that private rights exist subject to the public welfare. These principles are plainly recognized in Article XIV, Section 1, of the Constitution of the United States, and Article I, Section 19, of the Constitution of Ohio.”

The cases of Noble State Bank v. Haskell, 219 U. S., 104, and Assaria State Bank v. Dolley, 219 U. S., 121, involved the constitutionality of laws enacted by Oklahoma and Kansas, in the exercise of the police power to establish bank depositors guaranty funds created by levy on each of the banks. Objection was made that the tax was an appropriation of the property of one bank to pay debts of another without due process of law.

Mr. Justice Holmes said: “The substance of the plaintiff’s argument is that the assessment takes private property for private use without compensation. * * * Nevertheless, notwithstanding the logical form of the objection, there are more powerful considerations on the other side. 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.”

We think it clear that the objects and purposes as above set. forth, which the legislature contemplated in the passage of the law in question, are sufficient to sustain the. exercise of the police power, and the participation of the state in the manner provided. Whether the plan adopted is the most appropriate or best calculated to accomplish those objects are matters with which the court is not concerned and the law should not be held to be invalid unless clearly in violation of some provision of the constitution.

It is urgently insisted that while the law is apparently permissive and leaves its operation to the election of emplojrers 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 sections 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 empkryer, 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 is 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 neglect, wrongful act or default of his employer and agents as before the law was passed, and is not subject to the defenses named.

If the parties are operating under the act the employe contributes to an insurance fund for the benefit of himself .or his heirs, and in case he is injured or killed, he or they will receive the benefit even though his injury or death was caused by his own negligent or wrongful act, not wilful. And that is not all. Under Section 21-2 if the parties are operating under the act and the employe is injured or killed, and the injury arose from the wilful act of his employer, his officer or agent, or from failure of the employer or agent to comply with legal requirements, as to safety of employes, then the injured employe or his legal representative has his option to claim under the act or sue in court for damages.

Therefore the only right of action which this statute removes from the employe is the right to sue for mere negligence (which is not wilful or statutory) of his employer, and it is within common knowledge that this has 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 the 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 the other hand, some workmen may feel disposed to do likewise in spite of what would seem to be to their manifest advantage in securing the benefits of the insurance. However, if there should be such general acceptance of and compliance with the statute as its framers hope for, so as to bring a large part of the labor employed in the industrial enterprises of the state within its influence and operation, that would not demonstrate its coercive character, on the contrary it would justify the enactment. Naturally time and experience will disclose imperfections and inefficiencies in the plan, but if it should prove to be feasible, and appropriate in a general way, these imperfections can be corrected by -the legislature. On account of the common law and statutory rights still preserved to the parties by this statute (as we have pointed out) in cases where the election is made to come under its provisions as well as not to do so taken in connection with the advantage to each which the plan contemplates, we cannot say that the statute is coercive. As was said in the Wisconsin case: “Laws cannot be set aside upon mere conjecture or speculation. 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. 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. Second. Does this statute take private property without due process of law and deny the guaranties of the constitution'as claimed?

Perhaps no exact definition of “Due process of law” has been agreed on. Judge Story defines it in his work on the constitution, Section 1935: “The right to be protected in life, and liberty and in the acquisition of property under equal and impartial laws, which govern the whole community. This puts the state upon its true foundation, for the establishment and administration of general justice, justice of law, equal and fixed, recognizing individual rights and not impairing them.” In Cooley on Const. Limit., Sec. 356, it is said: “Due process of law in each particular case, means such an exercise of the government as the settled maxims of the law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the classes of cases to which the one in question belongs.”

The case of Ives v. South Buffalo Ry. Co., 201 N. Y., 276, (relied on by some of counsel) involved a statute different in many essentials from the Ohio law. Its controlling feature was that every employer engaged in any of the classified industries should be liable to a workman for injury arising in the course of the work by a necessary risk inherent in the business whether the employer was at fault or not and whether the employe was at fault or not, except when his fault was wilful.

The court held the law invalid, as imposing the ordinary risks of a business (which under the common law the employe was held to assume) on the employer. The court states one of the premises on which it proceeds as follows: “When our constitutions were adopted, it was the law of the land that no man who was without fault or negligence could be held liable in damages for injuries sustained' by another.”

But that rule was not of universal application. At common law one may sustain such relation to the inception of an undertaking that he will be held liable for negligence in the progress of the enterprise, even though he have no part or connection with the negligent act itself which caused the injury. Such for instance, as where the owner of property contracts with an independent contractor to do work which though entirely lawful, yet has inherent probabilities of harm if negligently performed. The position in the line of causation which employers sustain in modern industrial pursuits is of course the basic fact on which employers' liability laws rest.

As to the right to abolish the defense of assumption of risk, it is enough to say here that the great weight of authority is against the New York position and the position of such of the counsel in this case as insist on that rule. Some of counsel appearing against the validity of this law, concede the right to abolish the defenses referred to. The supreme courts of Massachusetts, Wisconsin and Washington have recently held in cases sustaining the validity of statutes similar to the one here attacked, that it is within the legislative power to abolish the defense referred to. In re Opinion of Justices, 209 Mass., 607, 96 N. E. Rep., 308; Borg nis v. Falk Co., 147 Wis., 327, 133 N. W. Rep., 209; State, ex rel., v. Clausen, 65 Wash., 156, 117 Pac., 1101.

Since the argument of this case the Supreme Court of the United States has decided the case of Mondou v. N. Y., N. H. & H. Rd. Co., 223 U. S., 1, and has sustained the constitutionality of the employers’ liability law passed by Congress. The abolition of these rules was urged as an objection to the law. The court say:

“Of the objection to these changes it is enough to observe:

“First. A. person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by 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. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances. Munn v. Illinois, 94 U. S., 113, 134; Martin v. Pittsburg & Lake Erie R. R. Co., 203 U. S., 284, 294; The Lottawanna, 21 Wall, 558, 577; Western Union Telegraph Co. v. Commercial Milling Co., 218 U. S., 406, 417.”

The recent case of State v. Boone, 84 Ohio St., 346, is cited as indicating limitations of the police power which apply here. The act involved in that case required the physician in attendance on a case of confinement to investigate and certify without compensation to certain facts which would not naturally come within the knowledge of the attending physician, and as to matters wholly outside the scope of his professional duty. The court held the statute unconstitutional as to physician and midwife because of an unreasonable and arbitrary exercise of the police power. That was the proposition of law decided in that case and no other proposition was decided. The court was careful to point out in the opinion and also on motion for rehearing that the state might require the physician to report to proper authority, facts which would come naturally under his observation in the line of his duty without compensation. Other matters referred to in the opinion were hot included in the syllabus which stated the law decided by the court.

The court remarks that the police power inheres in the sovereignty. Its foundation “is the right and duty to provide for the common welfare of the governed.” Manifestly the reasoning which led to the conclusion in that case that the statute had been passed by an unreasonable exercise of the police power can have no application here.

State, ex rel., v. Hubbard, 22 C. C., 253, affirmed without opinion, 65 Ohio St., 574, and State, ex rel., v. Guilbert, 56 Ohio St., 575, involving the validity of statutes creating a teachers’ pension fund and the Torren’s law to establish an insurance fund for the protection of land titles, concerned laws which were wholly compulsory with no element of choice and were not claimed to have been passed under the police power to cure undesirable public conditions, but for mere private benefit. These cases can therefore have no relation to a plan adopted to promote the general welfare, the contributions to which, are made after an election by the parties to participate in the undertaking.

It is urged by counsel opposing this law that the case of Byers v. Meridian Printing Co., 84 Ohio St., 408, is of conclusive weight condemnatory of the legislation we are examining.

In that case it is ruled that an amendment to Section 5094, Revised Statutes, (changing the presumption of malice and burden of proof in actions for libel where retraction is made on demand, in the manner stated) is unconstitutional.

The decision was put on the ground that plaintiff was guaranteed his remedy by due course of law for an injury done in his land, goods, person or reputation, under Art. I, Section 16, Constitution of Ohio. When the injury was done to the reputation of plaintiff by the libel, he was entitled to his constitutional remedy at law, but at the same time he was entitled to demand of the publisher a retraction of the libel. Therefore the legislature had no right to put him on his election as to two courses both of which he was entitled to follow.

The court is careful to declare that it is not disposed to question that a citizen may waive a constitutional right. But being compelled to elect between two rights, both of which a person is entitled to, has no resemblance to waiver. And under the law under investigation here as already shown, the right of action (for injury by wilful act of the employer and for his failure to comply with requirements as to the safety of employes) is still reserved to the employes. So that the only thing withdrawn by this law, and to which withdrawal he consents by his voluntary election to operate under the law, is his right of action for mere negligence, and in place of it he receives the substantial protections and privileges under the state insurance fund.

It is stated in Butt v. Green, 29 Ohio St., 670, that persons may expressly or impliedly waive either constitutional or statutory provisions intended for their benefit and as above shown the court in the Byers case state it is not disposed to question that one may Avaive a constitutional right.

We think that in a case such as is presented here, in which the state itself has undertaken a great enterprise in the interest of the general good, and in the exercise of its police power, and presents to its citizens the option to join in the undertaking and receive its protection and benefit, on a right of action being withdrawn by the legislature, which experience has shown to be difficult of practical enforcement, while preserving the. valuable and substantial kindred rights of action, it cannot be said that in such withdrawal there is a violation of the constitution in the respects claimed. But it is insisted that the act delegates judicial power to the Board of Awards, and denies recourse to the courts and trial by jury.

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 ab court, or invested with judicial power within the meaning of the constitution. I

It is created by the act purely as an tive agency to bring into being and administer the insurance fund, and the fact that it is empowered to 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 affecting 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.”

These principles were applied in France v. State, 57 Ohio St., 1, in which case the court remark that the case of State, ex rel., v. Guilbert, 56 Ohio St., 576, forms no exception, for the powers of the recorder under the statute there in question were essentially those which properly belong to a court. Does the law deny recourse to the courts and trial by jury?

How does it affect an injured employe where the parties are operating under the act? In B. & O. Rd. Co. v. Stankard, 56 Ohio St., 232, which was a suit by the beneficiaries of a member of the relief department of the railroad, the company answered setting up a rule which provided that the decision of the relief department should be final. The court say: “The right to appeal to the courts for redress of wrongs is one of those rights which in its nature under our constitution is inalienable and cannot be thrown off or bargained away.”

But the court shows that parties may contract to submit the fixing of facts to some non-judicial tribunal and say: “In insurance and other like cases where the ultimate question is the payment of a certain sum of money, certain facts may be fixed by a person selected for that purpose in the contract, but the ultimate question as to whether the money shall be paid or not may be litigated in the courts and a stipulation to the contrary is void.”

So that under that rule the parties may conclusively bind themselves in advance to submit questions of amount, etc., to some tribunal other than a court, but the ultimate question of actual liability cánnot be removed from the courts.

Now, in this statute, Section 36 is as follows:

“Sec. 36. The board shall have full power and authority to hear and determine all questions within its jurisdiction, and its decision thereon shall be final.

“Provided, however, in case the final action of such board denies the right of the claimant to participate at all in such fund * * * upon any * * * ground going to the basis of the claimant’s right, then the claimant Avithin thirty (30) days after the notice of the final action of such board may, by filing his appeal in the common pleas court of the county wherein the injury was inflicted, be entitled to a trial in the ordinary way, and be entitled to a jury if he demands it. In such a proceeding, the prosecuting attorney of the county, without additional compensation, shall represent the state liability board of awards, and he shall be notified by the clerk forthwith of the filing of such appeal.

“Within thirty days after filing his appeal, the appellant shall file a petition in the ordinary form against such board as defendant.”

Therefore, if the board denies the claimant’s right to participate in the fund on any ground going to the basis of his claim, he may by filing an appeal and petition in the ordinary form be entitled to trial by jury, the case proceeding as any other suit.

It is not an appeal in the sense of appealing from one court to another, but is really the beginning of an original suit.

As to this it must.be remembered that the whole proceeding is with and. against the Board of Awards. His claim is not-against the employer,There is no dispute between them. His claim is for the benefits- of the' insurance fund. The Board of Awards inquires into the matters pointed out in the statute, and in case of dispute as to whether there is any ultimate right to “participate at all in such fund” he has his recourse to the courts.

But he is not confined to that method of proceeding. If he claims that the injury was caused by the wilful act of the employer or officer or agent or from failure to comply with legal requirements as to safety of employes, etc., he may waive his claim under the act and sue in court for his damages. But in his petition in such case he could not claim damages for mere negligence, he having elected to waive that cause of action, having elected, as it were, to assume the risk of his employer’s mere neglect in return for the benefits and protection to himself and his heirs afforded by the terms of the act.

Another objection that is urged against this statute is, that it makes an unjust and arbitrary classification and does not affect all who are within its reason as required by Section 26, Art. II, of Constitution of Ohio. Under the law only employers of five or more are affected by it.

Spear, J., in Cincinnati v. Steinkamp, 54 Ohio St., 295, remarked: “In order to be general and uniform in operation, it is not necessary that the law should operate upon every person in the state, nor in every locality; it is sufficient, the authorities concede in holding, if it operates upon every person brought within the relation and circumstances provided for, and in every locality where the condition exists.”

To same effect are Platt v. Craig et al., 66 Ohio St., 75; Gentsch v. State, ex rel., 71 Ohio St., 151; Ry. Co. v. Horstman, 72 Ohio St., 107.

We think the classification is reasonable and proper. In the nature of the case the risks of any regular employment are less and the opportunity for avoiding them better where an employe is one of four than when the number is larger. As was said by Winslow, C. J., in Borgnis v. Falk, supra, “The difference in the situation is not merely fanciful — it is real.”

St. Louis Cons. Coal Co. v. Illinois, 185 U. S., 203, is a case in which a classification was made under somewhat similar manner, and was upheld.

Nor do we think it an objection that the law applies only to workmen and operatives and not to all others. This classification brings within the law all employes within its reason.

As to the suggestion that this statute impairs the obligations of contracts it is sufficient to say that it can of course not affect contracts in existence and unexpired at the time it is put into operation by the employer.

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 constitutions 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.

The demurrer to the petition will be overruled and the writ of mandamus awarded.

Demurrer overruled.

Spear, Price and Donahue, JJ., concur.


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    The First National Bank v. Jahn.
    • Mutual accounts — Settlement of in court of common pleas — Agreement by parties to account stated — Under mistake of facts— Appeal by either party — Will lie to circuit court, when.

    Where, in an action in the court of common pleas for the settlement of mutual accounts, it appears by the pleadings that the parties had agreed to an account stated, which one of the parties now alleges was induced by mistakes of fact, and the parties are unable to come to an agreement because of such mistakes of fact, said mistakes consisting of one party giving credits to which the other party is not entitled, and which he denies, and a settlement cannot be reached without the correction of the mistakes and restating of the account stated, an appeal will lie to the circuit court by either party to the controversy.
    (No. 12273 —
    Decided February 6, 1912.)
    Error to the Circuit Court of Henry county.
    The case in the court of common pleas, for the plaintiff in error, is stated in its amended petition as follows:
    “Now comes the above named plaintiff and by leave of the court first obtained, files this, its amended petition, and says that it is a corporation duly organized under the laws of the United States for the purpose of carrying on a general banking business at Napoleon, Henry county, Ohio; that the said plaintiff and the said defendant, George H. Jahn, had mutual dealings running through a period of several years, and said plaintiff and defendant have kept books of account concerning said dealings, which said accounts and the items thereof extend to a very large number, and that the aggregate of such items exceed the sum of thirty-eight thousand dollars; that the plaintiff and defendant have been trying to adjust said items of account, but because of a mistake in fact and oversight made in said account, which mistake in fact and oversight in said account was carried from time to time in the account of both plaintiff and defendant, and they have been unable to adjust or settle their said accounts for the reason that the defendant claims that upon the adjustment and settlement of said accounts there is a balance of twenty-seven dollars and fifty-six cents due him, and the plaintiff claims that it cannot settle said accounts until said mistakes of fact and oversight in said accounts have been corrected and passed upon by the court, and the plaintiff says that it will be utterly impossible for it and the defendant to agree as to the correctness of said items of account and to settle and adjust the same between themselves. Plaintiff, therefore, prays that the defendant may be ordered to come to an account touching the said items of account; that the plaintiff may be let in to prove any error in said account and that after an account has been had between said parties that a judgment may be had between said parties in accordance with the facts ascertained in the rendering, correcting and settling of said account and for all other proper relief in the premises.”
    The defendant, Jahn, answered this amended petition, by saying, in substance, that the only dealings he had with the plaintiff bank were as one of its depositors; that he made cash deposits from time to time and checked against the same in accordance with the regular and ordinary mode of depositing and checking on his account; that the bank provided defendant with a pass book which he kept in his possession, in which all transactions between him and the bank were entered by it; that on the 6th day of June, 1906, after defendant had become a depositor, the bank rendered an account and struck a balance and the bank and defendant made a settlement of their accounts in full to said date, which settlement showed a balance due defendant of $872.77, to which balance both parties then agreed, and this settlement was by said bank entered in said pass book.
    Afterwards other deposits were made and entered on the pass book, and checks drawn by defendant against the same, which was followed, in December, 1906, by another settlement and striking of a balance, to which the parties agreed, that the settlement showed a balance due defendant of $1,228.37.
    The answer sets out two subsequent settlements entered in the pass book by the bank, by the last of which there was a balance due defendant of $114.46. It is alleged that both parties agreed that this was a correct balance and the same was accepted as such, and the bank paid said balance to defendant.
    The reply of the bank denies each and every allegation in the answer, except the admissions therein contained, and further says that the accounts rendered defendant by it and the balance struck were done under a mistake of fact unknown to both parties at the time, which mistake consisted of credits given defendant by the plaintiff to which he was not entitled, and which mistake of credits was carried through and included in the several statements and balances struck between them, of which mistakes the defendant was duly notified when they were discovered, and defendant was requested to have the same corrected, and a new balance struck, but defendant refused so to do, and the plaintiff asks in the reply that it be let in to prove all such mistakes and for proper relief.
    The trial of the issues resulted in a finding for the defendant and judgment accordingly.
    The plaintiff bank perfected an appeal to the circuit court where on motion of the defendant the appeal was dismissed on the ground that the right to appeal did not exist. Error is prosecuted in this court to reverse the order of the circuit court dismissing the appeal.

      Mr. W. W. 'Campbell and Mr. James P. Ragan, for plaintiff in error.

      Messrs. Donovan & Dittmer, for defendant in error.
   Price, J.

The amended petition lacks definite statement as to the nature of the “mistake in fact and oversight made in said account” which it alleges, and, on application of the defendant, without doubt, the lower court would have required the plaintiff to be more specific and set out the mistake or mistakes, and the particular fact or thing that was overlooked by the parties in making up their accounts. No such application or order was made, and for the purposes of appeal, it is not necessary that a petition be perfect, if it substantially sets up a cause of action.

It was held by the circuit court that the case sought to be made in the amended petition is not appealable, and for that reason the appeal was dismissed. This view is urged in most part, because this court, in Willson Improvement Co. v. Malone, 78 Ohio St., 232, overrules Black, Receiver, v. Boyd, 50 Ohio St., 46, the petition in the latter case, it is alleged, being exactly like the amended petition before us.

Our examination shows that the petitions are not entirely similar. In Black v. Boyd, supra, the plaintiff predicated his claim for an accounting and equitable relief, on the alleged fact, that the bank, in that case, and Boyd had had mutual dealings through a period of at least ten years, and the Plain City Bank and the defendant Boyd “have kept books of account touching said dealings, which accounts and the items thereof extend to a very large number, and that the aggregate, of said items exceed the sum of $600,000. The said plaintiff and the said defendant have been trying to adjust said items of account, and to come to a settlement of the same, but they have been unable to adjust or settle their account.” The reason for such failure was the large amount the defendant claimed would be due him, and that the plaintiff could not agree to that.

There was no allegation of fraud or even mistake. Nothing but a very large number of items aggregating a large sum of money, and a stubbornness of disposition of the parties in reference to a settlement, appear as the ground for equitable relief. That case presented merely a long current account between the parties, many items of debt and credit during the ten years of business requiring care and patience in placing in order and summing up many figures on each side of the account, and yet it was a suit for the recovery of money only in which a jury trial might be demanded.

Such is not quite the case before us. It has similar averments in the amended petition, but there is one distinguishing feature in the present case. In addition to what was averred in Black v. Boyd, supra, it is alleged that: “the plaintiff and defendant -have been trying to adjust said items of account, but because of a mistake in fact and oversight made in said account, which mistake in fact and oversight in said account was carried from time to time in the account of both plaintiff and defendant, and they have been unable to adjust and settle their said account,” etc.

As we have already intimated, the effort to plead an appealable case is somewhat feeble, but the assertion that a mistake or mistakes permeating the account of each of the parties, and carried forward from time to time during the years alleged, standing as a block to a mutual settlement, gives color and character to the plaintiff’s case. The character of these mistakes should have been set out, but the court did not require it, and we are left to determine whether a jury is the proper tribunal to discover and correct mistakes, preliminary to finding what may be due either of the parties. It would seem unreasonable that a jury of twelve men can intelligently determine what mistakes have occurred in the accounts of the parties, and how they affect the adverse claims of each. This process would involve the restating of the accounts in order to eliminate mistakes, a labor more congenial to the court, or a master.

If we look to the answer filed to the amended petition, we find that the defendant denies most of its allegations and proceeds to plead periodical settlements between himself and the bank; the stating of his account by the bank and striking a balance, all of which the bank entered in defendant’s pass book as a correct statement of the account. There were several of such balancings of the account, and defendant alleges that the bank and he agreed that such statement was correct.

The reply charges that these statements and balances made by the bank were made under mistake, as to the credits which the bank had given' defendant to which he was not entitled and that these erroneous credits were carried through each of the several balances.

While the right of the plaintiff to appeal generally depends on the relief sought in his petition, we think the right may be made clearer by the pleading of his adversary, and in that respect we refer to the answer and reply in this case.

We are of opinion the circuit court should have entertained the appeal, and that it erred in dismissing it.

Judgment reversed.

Davis, C. J., Spear, Shaucic, Johnson and Donahue, JJ., concur.