Proceedings
Third National Conference
Workmen's Compensation For Industrial Accidents

Chicago, June 10-11, 1910

Including
A Brief Report of
The Second National Conference
Washington, January 20, 1910

Copies may be had at fifty cents each from John B. Andrews, Assistant Secretary, Metropolitan Tower, New York City.

GENERAL OFFICERS.

EXECUTIVE COMMITTEE.

(In Addition to the General Officers).

Proceedings
Third National Conference
Workmen's Compensation For
Industrial Accidents
Chicago, June 10-11, 1910
Including
A Brief Report of
The Second National Conference
Washington, January 20, 1910

CONTENTS

Princeton University Press
Princeton, N. J.

INTRODUCTORY NOTE.

The National Conference on Workmen's Compensation for Industrial Accidents was organized at Atlantic City, July 29-31, 1909. The second meeting was held in Washington, January 20, 1910. The third meeting, June 10-11, 1910, was in Chicago. The nature of the Conference is clearly set forth as follows:

BY-LAWS.

1. The name of this organization shall be the National Conference on Workmen's Compensation for Industrial Accidents.

2. Its purpose shall be to bring together the members of the commissions and committees of the various States and of the National Government, representatives to be appointed by the governors of the different States, and other interested citizens, to discuss plans of workmen's compensation and insurance for industrial accidents.

3. Its officers shall be a chairman, a vice-chairman, a secretary, an assistant secretary and a treasurer, to be elected annually and to hold office until their successors shall have been elected.

4. The business of the organization shall be conducted by an executive committee, consisting of the officers and of other members, said committee to represent at least ten different States.

5. The voting members of the Conference shall be the members, secretaries and counsels of all State Commissions or committees on the subject, one or more representatives to be appointed by the governors of different States, and ten members at large to be elected at any regular meeting of the Conference.

6. Individuals and associations of individuals may be admitted as associate members, and as such, be entitled to the privileges of the floor and to receive the publication of the Conference upon the payment of $2.00 per annum for each such individual member, and $25.00 per annum for each such association.

7. No resolution committing the Conference to any fixed program, policy or principle, shall be deemed in order at any of its meetings, except upon unanimous vote.

8. The funds of the Conference shall be derived from contributions from the commissions and committees on the subject, and from voluntary subscriptions.

The proceedings of the Atlantic City Conference are published in a volume of 340 pages, and copies may be had, at fifty cents each, from H. V. Mercer, of Minneapolis. The proceedings of the Chicago Conference (including as an Appendix on pages 124-135 a brief report of the Washington Conference, the proceedings of which have not been printed in extenso), may be had at fifty cents a copy by addressing John B. Andrews, Metropolitan Tower, New York City.

PROGRAM
Third National Conference on Industrial Accidents and Workmen's Compensation

Auditorium Hotel, Chicago

June 10-11, 1910

FRIDAY FORENOON SESSION, 9:30

BRIEF REPORTS FROM STATE COMMISSIONS

GENERAL DISCUSSION "Workers' Compensation Code"

(Outline for Discussion)

Representatives of the Federal Government, Members of State Commissions, Delegates designated by Governors of States, Representatives of Manufacturers' Associations and Trade Unions, Insurance Companies, Russell Sage Foundation and Association for Labor Legislation, and other interested organizations and individuals.

FRIDAY AFTERNOON SESSION, 2:00

WORKERS' COMPENSATION CODE (Discussion continued).

SATURDAY FORENOON SESSION, 9:30

SPECIAL DISCUSSION:

• Classification of Hazardous Employments.
• Repeal of Common Law and Statutory Remedies.
• Contract vs. Absolute Liability.
• Limited Compensation vs. Pension Plan.
• Court Administration vs. Boards of Arbitration.

PROCEEDINGS
Third National Conference
Workmen's Compensation For Industrial Accidents
Chicago, June 10-11, 1910

The third meeting of the National Conference on Workmen's Compensation for Industrial Accidents brought together from widely separated parts of the United States a large number of those who represent the serious thought of the country on this most urgent question. Members of State Commissions in Minnesota, Wisconsin, Illinois, New York and Massachusetts were present and submitted reports. Thirty-eight official delegates were appointed by the governors of States, and, in addition, representatives were present from manufacturers' associations, trade unions, insurance companies, the Russell Sage Foundation, the Association for Labor Legislation, and other interested organizations. Many individuals from the shops, the offices and the universities, attended the various sessions and listened to the arguments of the speakers or participated in the discussions.

Among those present who took an active interest in the meetings were:

Jane Addams, Hull House, Chicago; T. W. Allinson, Henry Booth House, Chicago; W. A. Allport, Member Illinois Commission on Occupational Diseases and State Delegate; L. A. Anderson, State Insurance Actuary, Madison, Wis.; John B. Andrews, Secretary American Association for Labor Legislation, New York City.

James V. Barry, State Delegate from Michigan; William P. Belden, Cleveland Cliffs Iron Company, Mich.; E. T. Bent, Member Illinois Commission; John J. Blaine, Member of Wisconsin Commission and State Delegate; M. J. Boyle, Member of Illinois Commission; Frank Buchanan, Structural Iron Workers' Union, Chicago; Henry W. Bullock, representing Indiana State Federation of Labor.

Patrick Ladd Carr, Member Illinois Commission; Robert E. Conway, Member Illinois Commission; Clarence B. Culbertson, Member Wisconsin Commission and State Delegate.

Edgar T. Davies, Chief Factory Inspector of Illinois and State Delegate; Miles M. Dawson, Insurance Actuary, New York City; F. S. Deibler, Northwestern University, Evanston, Ill.; M. M. Duncan, State Delegate from Michigan.

Crystal Eastman, Secretary and Member New York Commission; Herman L. Ekern, Deputy Commissioner of Insurance, Wisconsin.

Henry W. Farnam, President American Association for Labor Legislation, New Haven, Conn.; John Flora, Member Illinois Commission; Lee K. Frankel, Metropolitan Life Insurance Company, New York City; Ernst Freund, University of Chicago and President Illinois Branch A. A. L. L.

John H. Gray, University of Minnesota and President of Minnesota Branch, A. A. L. L.; John M. Glenn, Director Russell Sage Foundation, New York City; George Golden, Member Illinois Commission; Daniel J. Gorman, Member Illinois Commission.

Walter D. Haines, Member Illinois Commission on Occupational Diseases and State Delegate; Alice Hamilton, Expert Investigator Illinois Commission on Occupational Diseases; Samuel A. Harper, Attorney Illinois Commission; Leonard W. Hatch, Statistician, New York State Department of Labor; Charles R. Henderson, Secretary Illinois Commission on Occupational Diseases and State Delegate; J. C. A. Hiller, Missouri Commissioner of Labor and State Delegate; Frederick L. Hoffman, Statistician Prudential Insurance Company, Newark, New Jersey.

Wallace Ingalls, Member Wisconsin Commission and State Delegate.

Sherman Kingsley, United Charities, Chicago.

Thomas F. Lane, Missouri State Delegate; Julia Lathrop, Director Chicago School of Civics; James A. Lowell, Chairman Massachusetts Commission.

Charles McCarthy, Chief Wisconsin Legislative Reference Library; Edwin M. McKinney, Chicago; Ruben McKitrick, University of Wisconsin; Floyd R. Mechem, University of Chicago; H. V. Mercer, Chairman Minnesota Commission and State Delegate; H. E. Miles, National Manufacturers' Association and Racine-Sattley Company, Racine, Wis.; John Mitchell, Member New York Commission; William H. Moulton, Sociological Department, Cleveland Cliffs Iron Company, Mich.

Cecil Clare North, De Pauw University, Indiana.

Irene Osgood, Assistant Secretary American Association for Labor Legislation, New York City.

Joseph A. Parks, Member Massachusetts Commission; P. A. Peterson, Member Illinois Commission; Charles Piez, Member Illinois Commission; Ralph F. Potter, Attorney Ocean Accident and Guarantee Corporation, Chicago.

Samuel Rabinovitch, Milwaukee Relief Society; G. A. Ranney, International Harvester Company, Chicago; Benjamin Rastall, University of Wisconsin; A. Duncan Reid, Ocean Accident and Guarantee Corporation, New York; C. T. Graham Rogers, Medical Inspector New York Department of Labor; David Ross, Secretary Illinois State Bureau of Labor.

Amos T. Saunders, Member Massachusetts Commission; A. W. Sanborn, Chairman Wisconsin Commission and State Delegate; Ferd. C. Schwedtman, National Association of Manufacturers, St. Louis; Henry R. Seager, Member New York Commission and President of the New York Branch, A. A. L. L.; A. M. Simons, Chicago; Geo. W. Smith, Member New York Commission; John T. Smith, Secretary Missouri State Federation of Labor; Mason B. Starring, Member Illinois Commission; H. Wirt Steele, Charity Organization Society, Baltimore, Md.; Ethelbert Stewart, United States Bureau of Labor; Charles A. Sumner, City Club, Kansas City, Missouri.

Edward G. Trimble, Employers' Indemnity Exchange, Houston, Texas; James H. Tufts, University of Chicago.

Paul J. Watrous, Secretary Wisconsin Commission and State Delegate; Agnes Wilson, United Charities, Chicago; Edwin R. Wright, Member and Secretary Illinois Commission.

FIRST SESSION, FRIDAY, JUNE 10, 1910, 9.30 A. M.

In the absence of Commissioner Charles P. Neill, of the United States Bureau of Labor, who was detained in Washington by urgent official matters, the first session of the Chicago Conference was opened by the Secretary, H. V. Mercer, Chairman of the Minnesota Employes Compensation Commission, and he was unanimously elected temporary chairman for the Chicago meetings.

In formally opening the Conference and assuming the chair, Mr. Mercer said:

Chairman Mercer: According to the program here, the first order of business for this meeting is brief reports from the different state commissions. I understand there are seven States that have commissions working on the question of compensation for industrial accidents, or perhaps, more properly speaking, for injuries occurring in the course of and arising out of the industries in which they are employed,—for "accidents," according to the courts in some States, do not mean what we want to cover. Some courts use that term in the popular sense; some use it as including, and some use it as excluding, any idea of fault or negligence.

In view of the fact that you have made me temporary chairman, it would hardly be proper for me to open this meeting with a report from Minnesota, and hence I will call upon the other States first.

(Upon the Call of States by the Chairman, the following responses were given.)

Wisconsin.

Senator John J. Blaine: Our Committee is a legislative committee made up of three members of the Senate and four members of the Assembly. The committee was appointed at the last session of the Legislature in 1909. They have been diligently pursuing the course of their investigations with the object of arriving at a bill which the committee can recommend to the Legislature for its adoption. It was a few months before we got to work after our appointment and it was not until last April that we drafted the first tentative bills.

I would state briefly that the first tentative bills were drafted with the object of drawing out discussion on the part of the employers and employes. We had held some meetings previously, and those who appeared before us were somewhat in the dark as to just what we intended to do and wanted to do, and therefore we drafted tentative bills to which they should direct their fire of criticisms and suggestions.

The first bill presented was a bill destroying the common law defenses, assumption of risk, the co-employe doctrine, and modifying contributory negligence to that of comparative negligence. The second of the first tentative bills was a compensation measure. The purpose of the first bill was to use a "constitutional coercion," as we have termed it, making the compensation bill practically compulsory, but not in the language of the bill declaring it compulsory, hoping in this way to bring it within the constitution. That destroyed the common law defenses and then gave the employer the right to come under the compensation act. Also in that bill the employe was presumed to be acting under that bill unless he contracted to the contrary at the time of entering his employment.

The matter of compensation and the details of the bill are not of particular interest to the Conference, because they are questions concerning which there is very little contention, and they resolve themselves practically to the point of working out the question of arbitration and the measure of compensation and the manner of arriving at compensation, and such court procedure as is necessary, in detail.

We found that our first tentative bills performed the exact object which we intended they should. Neither the committee nor any of its members, I believe, had any idea that the first tentative bills represented their individual ideas or even the idea of the committee as a whole; but they certainly resulted in bringing about discussion, and after those bills were sent about the State to employers and employes they all got busy and we had very valuable and helpful discussions upon those bills. We held a conference in Milwaukee lasting about a week. There appeared before the committee representatives of the Merchants' and Manufacturers' Association of Milwaukee, and from the northern part of the State representatives of the lumber and various other industries. We also had the State Federation of Labor.

After that meeting we met again in May and drafted our second set of tentative bills, the first bill destroying the defense and assumption of risk, and also the co-employes doctrine as a defense, but embodying the question of contributory negligence. That bill, if enacted into law, independent of every other act, would make all employers of every nature subject to the law, whether the employer was a farmer, a manufacturer or whatsoever he might be. The second bill provided practically the same as our other bill.

We found at these public hearings that the question of who shall pay for the insurance, as it is called, is not a matter of great contention in Wisconsin. I think the larger manufacturers, and the great majority of all of them, favor paying the compensation themselves and either assuming the obligation, or organizing mutual insurance companies or protecting themselves with liability insurance policies. There are a few who believe that the employes should contribute a small portion toward the compensation, but I do not believe that is the general sentiment among the employers and manufacturers in Wisconsin.

I think the only serious problem we have to meet is whether we shall take away the common law right from the employe. The Federation of Labor of Wisconsin is very much opposed to that feature of our bill, and personally I am opposed to it. I have expressed that opposition at all the hearings and directed many questions along that line to ascertain the sentiment of employers and employes.

Our bill creates the presumption that an employe is acting under the act unless he contracts to the contrary at the time of his employment, and of course the idea of that is to get around the constitutional provisions; therefore, there will be consent to act under the law, and consent to arbitration, and hence it will no doubt be constitutional. But the employes, through their representatives, believe that they should have the right of selection after the injury has occurred. The Federation bill that they have prepared, follows practically the same lines as the English act, giving the double remedy of a common law right of action, and then also compensation in case of their failure to recover under the common law; but they have gone so far, through their representatives, as to state that they would not ask for that provision in its entirety. While I am not going to speak authoritatively as to just what they will or will not do, I think it is their idea that if they are given the right to elect at the time or within a reasonable time of the injury, whether they shall proceed under the common law remedy or accept the provisions of the compensation act, that they will be willing to waive the double remedy, and whichever act the employe chooses to proceed under, will be a waiver of all other remedies.

That question is going to be debated by both sides and I think if we are going to meet with any danger of defeat in promoting this legislation it will be upon that one subject, and personally I hope that the employers will find that under a reasonable bill, with reasonable compensation and protection drawn about them, so there will be no danger to mulct them in any great damages, that they will be willing to accept some provision giving the employes the right of election at the time of the injuries.

Under the second tentative bill we have had public hearings throughout the State, particularly in the industrial centers, and concluded those hearings last Friday. We expect to meet as a committee, redraft our bills and get them into substantial form, and then I suppose, after we have determined what the committee intends to do as a committee in submitting its report to the Legislature on the essential points, we will then have public hearings and the questions that are debatable will be debated before that committee at these hearings, and then we will make our report accordingly.

New York.

Miss Crystal Eastman: The New York Commission is in a peculiarly fortunate position. Our bills have both passed and one of them has already been signed by the Governor, so that to-day our labors would be all over and we could return to rest, except for the fact that we still have to inquire into the causes and prevention of industrial accidents, the causes and effects and remedies of non-employment, and the causes and remedies for the lack of farm labor in New York State. You will see from this that we received a life sentence on the New York Commission. The Legislature evidently thought it would give to us the solution of all the problems of modern industry and keep the reformers quiet for fifty years. However, we have finished up the Employers' Liability part of our job and we feel that we have done our part of the work in that regard and now have put it up to the Legislature.

When I was planning what I should say here, I rather thought I would discuss the two bills which we have introduced, and passed, and leave out the discussion of how we did the work, but since I have come here I believe it is more important to tell you how we did it, and take it for granted that you know about the bills and are familiar with them.

Our work, to my mind, is divided into five different sections. In the first place we had reports specially prepared for the Commission, one on the Employers' Liability Law in New York State and the other States. That was prepared by our counsel and sent to every member of the Commission early last summer. Then we had a report prepared on the Foreign Systems of Compensation and Insurance: That was mailed to the members of the Commission for their information. Then we had a report on Relief Associations in New York State, which was very voluminous and was not generally mailed, but was kept in the office for reference.

The next section of our work was printed inquiries sent to all the employers whom we could get the names of from the State Department of Labor, and to all labor unions on record. These inquiries were just about the same as those sent to the employers, and in a general way we asked both the labor unions and the employers what they thought of the present law on employers' liability, how they thought it met the situation; and we asked them how they would like a law on workmen's compensation, describing it very briefly. We received replies from only a small proportion of the inquiries we sent out, but a large enough number to give us some general idea of the feeling of both the employers and the laboring people in the State on this subject. I can say positively, however, that we found no satisfaction; practically nobody liked the law. The employers disliked it for one reason and the workmen disliked it for another, and so nobody was satisfied with it.

Another printed inquiry we sent to the insurance companies. This was more in the line of investigation, however, as we got from them not opinions so much as figures showing how much they had received in premiums from employers for liability insurance, and what proportion of this had been spent in paying actual claims, thus showing us what proportion was, so to speak, wasted in the business of defending claims.

We then wrote letters, not printed inquiries, but letters containing a list of questions to a great many lawyers, and to all the judges in the State, asking their opinion about the constitutional questions involved. That, I think, ended the inquiry section of our work.

Then we held public hearings, five or six up the State and as many in New York City, and tried to make the invitations as general as we could. Many of us felt that those hearings were not going to be important and perhaps were a waste of money, but after we had them I believe we all felt that they were worth while. They perhaps did not furnish us with any definite statistical information, but they did put us in touch with the feelings of the people of the State on this subject, and gave us a more concrete view of the subject than we could have gotten by correspondence or by any statistical inquiry, and brought us in touch with the people on both sides of the question, who were interested in the problem. But quite apart from the value to us, of these written inquiries and of the public hearings, in informing us on the situation, they were valuable in arousing interest all over the State, and in educating the public in regard to the problem.

We were particularly gratified to see the way in which labor unions seized the opportunity to become interested and to educate themselves in regard to employers' liability and workmen's compensation. When we started out last fall most of the labor unions that answered our inquiries did not know what we were talking about, and now I hardly think there is a union of any size in the State that is not in a position to know what it wants in the matter of employers' liability and workmen's' compensation.

The next section of our work was statistical inquiry—a regular statistical investigation. The bulk of this was done for us under Mr. Hatch's direction at the New York State Labor Department. A study was made of some fourteen hundred actual industrial accident cases, both injury and death, to show what was the loss of income to the man injured, how much he received from the employer, how much he paid to a lawyer and what was the effect of the accident upon his family; in other words, a study of the economic cost of work accidents.

In addition to that Mr. Hatch conducted an inquiry into the cost of industrial accidents to some three hundred employers, showing how much they paid in a year on account of industrial accidents and into what different channels that money went; how much of it went to employers' liability and insurance premiums; how much went to the workmen and how much to the hospitals and so forth. All of this was exceedingly valuable in giving us information as to the conditions in our own State.

In addition to this the Commission conducted a similar investigation of three hundred fatal industrial accident cases to determine their economic effect upon the family and the income loss, of compensation received and all that. These fatal accident cases we secured in a perfectly impartial way by taking a year's fatal industrial accidents reported to the coroners of Manhattan Borough and Erie County, where Buffalo is situated. As a result of these two inquiries we have a mass of statistics on this subject. We were able to put into our report a statement, from the statistics, of just about what proportion of workmen who were injured received anything to compensate them for the income loss, and with regard to the workmen killed, what proportion of the dependents received anything. Those four divisions, I think, cover our preliminary work.

Then came the business of preparing and writing the report. The rough draft was prepared by two or three members of the Commission, and the counsel, in different sections. When it was in printed proof for the first time, Senator Wainwright, the chairman, called the whole Commission together and informed us that he intended to make us read the whole report aloud, all sitting together, so that every member of the Commission might feel that he had written the report and that it was his report. That idea astounded me, I will admit, when I first heard it, because I thought it was going to take us the rest of the year to do it; but it turned out to be a very excellent plan, and we actually did that. We sat down for three days without stopping, except for meals, and read the report aloud, and there is no member of the Commission who did not make suggestions, and valuable suggestions, and I think I may say that we all feel that it is our report.

When it came to the bills which we introduced we followed somewhat the same plan. We went over every line and word of the bills, of course in much greater detail than we did the report, and the bills are the result of a giving in here and a giving in there, as you can readily imagine. They did not represent just exactly what every one of us wanted to do, but they represent what we could agree to do, and the Legislature has done us the honor to take our advice.

And now just a word in regard to these bills. The first one is called the Optional Bill. It does two things: It remedies the glaring injustice of the present law on the basis of negligence by modifying the fellow-servant rule, by making all fellow-servants in positions of authority vice-principals instead of fellow-servants; by doing away with the extreme application of the assumption of risk rule which allows an employe to assume the risk of an employe's negligence by remaining in employment, and changes the burden of proof of contributory negligence over to the defendant. Those three things we felt it to be necessary to change in the employer's liability law on the basis of negligence, even if we never changed it in any other particular. In addition to this feature of the bill, there is afforded to the employes and employers, if they wish to escape this situation, by an amendment to the employer's liability law, the opportunity of making a contract. That is the option feature of the bill; there is nothing particularly interesting or original about that. Some members of the Commission were for it because it would force the employers into compensation, and some members were for it because they thought it remedied an injustice in the present law which they could not stand for, but, at any rate, all but two of us were able to agree on that.

Then the second bill, which we call the Compulsory Compensation Act for dangerous trades, is our solution of two difficulties which we met and which, no doubt, all of the other commissions are having to meet. These two difficulties are the constitutional difficulty, the fact that we have written constitutions limiting our powers along all these lines; and, secondly, the interstate competitive difficulty, the fact that in this country our laws are made by States and we have state legislative lines, but no state competitive lines—the old cry of the manufacturer, that if you put a burden upon him in New York State he cannot compete with a manufacturer in Pennsylvania and New Jersey, and will, therefore, either have to go out of business or out of the State. That difficulty of interstate competition we felt to be a real one. Whether it would actually drive the manufacturer out of business or not, it would inevitably hinder the passing of our bill, because the manufacturers of the State in a body would oppose it.

The constitutional difficulty, to be a little more definite, in our case seemed to be pretty serious; we had only two lawyers in the State who wrote us that they thought a general compulsory compensation act similar to the English law would be constitutional, but we had a great deal of advice to the effect that if we could draw our bill so it would apply to the risk of the trade, and make the compensation depend upon the inherent risk of the trade, that that would be constitutional.

With these two difficulties in mind we drew the bill applying to dangerous trades. As you know, it provides compensation for all workmen injured in eight specially dangerous trades, if they were injured either through the fault of the employer or any of his agents, which is plainly perfectly constitutional; or if they were injured in any sense through any risk inherent or necessary as a risk of the trade. The bill does not take away any statutory or common law rights that the workman now has, but he must choose between one or the other. If he begins proceedings under the compensation act, he loses his right to sue and vice versâ.

The importance of this bill, in my mind, is very great. I think that is the way to go at it in this country. If the employer and the workman both profit by the enterprise they should both assume the risk of the trade, and that principle, I think, is what is established by our compulsory compensation bill.

I want to make clear that the list of dangerous trades in this law is not an inclusive list of dangerous trades by any means. There is no reason why we should draw the line where we did draw it. Our reason in selecting these dangerous trades instead of all dangerous trades, as we originally had our list drawn, was a purely utilitarian opportunist reason. It was our solution of the second legislative difficulty in this country; that is, the interstate competition. We thought that it would be a good plan to get our entering wedge in on the industries which did not directly compete with other industries outside of the State. For instance, the builder in New York State competes with the builder in New York State, generally speaking; and the railroad in New York State competes with the railroad in New York State, generally speaking, and not with the outside railroads. We are quite frank in saying that we thought we could get this bill passed if we did not make it hit the manufacturer to begin with. We intend that it shall cover him in time, and just as soon as we can, make it cover him; but it seemed a fair as well as a wise thing to introduce the principle and get the employers used to the burden, and get the insurance rate adjusted for injuries, so that it would not be a serious competitive difficulty.

Those two reasons, then, explain this bill; we limited it to the risks of trade instead of having it cover all accidents in the course of employment, as the representative list did, because we believed that that was the constitutional line for us to act on, and we limited it to those dangerous trades which, generally speaking, are not involved in interstate competition, because we thought we could pass it easier and it would be fair to try it out on those employers first.

Prof. Henry R. Seager (New York): I should like to add just a word along the line of the practical difficulties that all of our commissions face when it comes to getting legislation. Some members of the New York Commission felt that it would be a mistake to try to make any report at all this last winter when the proposal was first advanced. We felt that we had a very big problem. That, in addition to studying the experience in this country and getting reports on European laws, we ought to send some one over or go over ourselves to the other side and see just how the European laws operate. The consideration that finally led us to make a report, and try to get legislation, was the political situation in New York.

As the winter advanced it became very clear that it was a highly opportune time to get through legislation that had popular sentiment behind it. The legislative members of our Commission were so impressed by that aspect of the matter that they were impatient, some of them, to bring in bills without any report at all to back them up, and that consideration finally led all of us to feel that we should hurry as much as we could and get in the best report we could in the short time that was allowed, with the hope that the bills we recommend, if reasonable and fair, would be passed. It was that situation that led us to make a report which at some points was not altogether satisfactory to the members of the Commission; and that consideration, I think, justified our action because, as it turned out, the Legislature was in a mood to act on our recommendations. The voluntary law was a bill, aside from the compensation feature of it, that had slumbered in Albany for five or six years in spite of the efforts of the labor representatives to have something done. That it was a favorable situation was shown by the comparative ease with which that bill was passed, in somewhat modified form, when we put ourselves behind it.

It is those practical considerations, gentlemen, it seems to me, that we must consider quite as much as the ideal solution of this question for many years in this country. I say that because as a professor of political economy, as a theorist, I perhaps would not be expected to take that view of the matter.

George W. Smith (New York): I was sort of a moderate edition of the employers' representative on the New York State Commission. I was one against about thirteen. Of course, you can imagine that my advice could not have been considered very seriously, but I am willing to say that they certainly did give me considerable consideration, for the reason that I was not really a radical against any legislation that would be fair; and I feel that the employers of New York State felt largely as I did.

I cannot help but remark, however, about the point that Professor Seager raised, of the opportunity that seemed to present itself at this session of our Legislature. I do not suppose I ought to criticise, but I hope that similar conditions will not exist in other States at the time this legislation is up, because I think it is of a very important character, and should not be put through for any personal reasons or in order to bring political capital to any of the legislative members. I suppose it is pretty well known that there were a great many shattered reputations in the Legislature of New York State this year, and it is always a pretty handy thing to have around an opportunity to do something for the boys that work hard for a living. I do not blame those that were in favor of this legislation for taking advantage of that very favorable opportunity, but it certainly was a good opportunity and was well taken advantage of.

I had to smile, however, on a number of occasions at the attitude of some of the labor representatives. They did not seem to realize, a good many of them, how important this legislation was and how beneficial it was to them; but if they could have gone behind the scenes, and had a heart-to-heart talk with some of the employers, they would have realized that the employers did not like it very well.

As for one of the bills being designated as a voluntary or optional bill by the removal and absolute wiping out almost of all of the employers' defenses, it practically makes that almost a compulsory bill. However, I believe that all the employers in the country realize that the time has arrived when some fair legislation must be enacted, and the only thing that I think should be well considered is not to go so far that you are going to put the country in a bad financial state.

Prof. Seager: If Mr. Mitchell would say something about the labor situation when we started out I think it would be very interesting.

John Mitchell (New York): The measures have been discussed so thoroughly by the other members of the Commission that I shall not attempt to discuss them now. When this Commission was first appointed in New York State, as Miss Eastman stated, the workmen knew very little about the systems of compensation in Europe, and they knew little about the principles of workmen's compensation. The Commission was appointed not because of a demand for workmen's compensation, but because of a demand for a comprehensive system of employers' liability. But after the Commission was appointed, and it was suggested that they go into an investigation of workmen's compensation, the unions took the matter up and made investigations on their own account, and drafted bills which they thought would cover the matter to their satisfaction. Of course, as was to be expected, they asked for a rate of compensation that was very much higher than anything that prevailed in Europe.

While I, personally, was in sympathy with the workmen in their desire to have the very best system of compensation that it was possible to obtain, and one better than any they have in Europe, yet I think that the more conservative of the trade-union workmen recognized that we could not go very far beyond the system prevailing in England or in Great Britain until other States, and particularly the adjoining States, should also take up the matter. The consequence is, however, that as the matter was developed, and as the workmen were brought into the discussion of the matter with the Commission, that very many of them modified their original demands and were willing to accept the principles laid down both in the optional and in the compulsory bills which have passed the Legislature.

It is, of course, not to be expected, either in New York or anywhere else, I assume, that the bill passed by the New York Legislature meets at all the desires of the workingmen. That is to say, they will continue to ask what they will eventually succeed in having, a compulsory law that will include all the trades. I think there is no special demand for a bill to include agricultural and domestic service.

The great difficulty right now in New York is concern as to the scale of compensation. The New York workmen are not satisfied with one-half wages. They have asked recently that the bill be made full wages. I think, however, that somewhere between one-half wages and what they are asking will be accepted as a final solution of the difficulty.

I want to make this one personal observation about these measures, and in this respect I think my views are not quite in accord with the views of all of my fellow-workers. I think the purpose of all this legislation should be first to do substantial justice to the workingmen, and I think the second consideration should be to take out of the courts all this long and expensive litigation, in order that the money that is not paid by employers, or whatever is paid by them, may be used for the relief of those who are suffering from industrial accidents. I do not believe, however, that the workmen should have the right to sue his employer, and, failing to win his suit, to go back and receive his compensation. I differ with most workmen in that respect, because I think if he has the right first to sue, and, failing to win his suit, to then accept the scale of compensation, that it is a temptation, an almost irresistible temptation, for him to sue, because it costs very little to enter the suit, and inasmuch as he knows in advance that if he fails to win the suit he will have his compensation any way, too many workmen would elect to sue perhaps on a contingent fee, and then go back if they failed to win and take the compensation. I do believe, however, that he should have the choice of suing under the employer's liability law or accepting the compensation, but, as I say, I do not think he ought to have both rights. I believe that perhaps the labor men who have made the most thorough investigation into the subject will agree with me that it is a fair proposition to give him his choice, but not both choices.

Illinois.

Mason B. Starring (Illinois): The Chairman of the Illinois Commission, Mr. Rawn, is unavoidably absent to-day and probably will not be able to attend the conference to-morrow. This second Illinois Commission is young. The act creating it was passed at a special meeting of the Legislature, and the appointments to membership on the Commission are of very recent date. In convening the Commission, the Governor of the State of Illinois expressed the hope that the members of the Commission would not indulge in deliberation or consideration of the features of a bill until first they had fully advised themselves as to the facts which would necessarily and properly govern the conclusions which they hoped to attain. Illinois, therefore, is in the position of being a student of this matter, and the progress and work of its Commission so far, I believe, to be largely that of investigation. We come here to learn. And were it not for the fact that the question of age destroys the illusion, when we heard the lady from New York (Miss Eastman) speak, we certainly would have felt that we were "sitting at the feet of Liberty Enlightening the World."

I want to suggest to this meeting, Mr. Chairman, that there is no one connected with our Commission so familiar with all its workings, looking at it both from the side of the employer and the employe, as is our secretary. The Commission is composed of six men chosen from among the most respected and eminent leaders of the workingmen in the State of Illinois, supplemented by a selection by the Governor of six men from the ranks of the employers. The Chairman is Ira G. Rawn, president of the Monon Railroad, and the Secretary is Edwin R. Wright, president of the Illinois State Federation of Labor. I would suggest, Mr. Chairman, that it might please the members of this meeting, and certainly it would please the members of the Illinois Commission, if you would ask Mr. Wright to speak to you.

Edwin R. Wright (Illinois): We have not in Illinois progressed far enough to make any report showing any particular progress. So far we have been trying to find ourselves, and to find a starting point from which we can work. It took us a meeting or two to become acquainted with each other, and another meeting or so to try and understand the different points of view.

For years and years we have been going to the Legislature in Illinois pleading for protection; a measure that would protect our lives, a measure that would protect those who are dear to us, and year after year we have failed, until at the present time patience has almost ceased to be a virtue. We expect this Commission will make an investigation into how the men in the State of Illinois work and the compensation that is paid the injured workmen when any compensation is paid at all, and the relief that is given a man's family after the breadwinner is sacrificed on the altar of industry. The conditions are bad in Illinois; I do not believe they are any worse anywhere. I do not believe a man's' life is worth very much in Illinois. I am quite sure of it, and before we get through with the investigation I believe we can show that an employer owning a cart or a wagon, two good draft horses attached to this wagon and a good driver on the wagon, if an accident should occur blotting out the team, wagon and driver, that the employer, through our court system, values each of the horses attached to the wagon and the driver at about the same value; one is worth about as much as the other under our present court system. That is entirely wrong. At least, we believe so.

To the men who are injured at the present time there is very little being paid. I believe, and I am speaking my own belief, I am sorry to say, instead of speaking the opinion of the Commission, that we should have an automatic compensation law in the State of Illinois, where the man will know absolutely what he is going to receive if he is injured; what his family is going to receive if he is killed. It does not make much difference whether we have a double or single liability. I prefer, of course, a double liability, but I find that under our court system a man does not get nearly as much under the double liability as he could expect to receive under a single liability law, and that if we would insist upon a double liability in this State we would have to cut down the other provisions of the bill to secure it.

We have progressed far enough to put just exactly this provision in a circular form in the hands of every trades unionist in the State of Illinois at the present time, and we are going to find out what the rank and file of the workers want. Just as soon as the six labor members on the Commission find out what the workers of the State want we will then try to incorporate it into the bill. A circular has also gone forth from the Commission to the employers of the State, trying to crystallize their ideas into a concrete proposition, and then the six members of the Commission representing the employers and the six members representing the workingmen will sit down at a table and thresh this out just as a committee would do that was trying to settle a wage scale, and I believe we will arrive at some understanding; and when we arrive at an understanding with our employers who represent organized capital in the State of Illinois, and six trade unionists representing the organized workers in the State of Illinois, I believe that that position will be accepted by both sides, and that when we go to the next Legislature they will incorporate that into law, and it will be signed by the governor and put into full force and effect.

I want to say just a word as to why we were anxious to have the Commission organized as it is. The original plan of the provision provided that the public should be represented, but the public is not particularly interested in this matter, not nearly so much as the other parties. The life of the employer is at stake in this matter. If we build up conditions so high that he will have to leave the State or abandon his property, he cannot afford to pay wages to the workingmen. We, on the other hand, have all we have to lose; we have not only our trade, but we have our lives at stake, and the public has no voice in it. Organized capital, through the Manufacturers' Association, the Mine Operators' Association, and so forth, has a voice. Organized labor has a voice, but if the public has any voice at all it does not amount to a great deal in the State of Illinois. We who have put everything that we possess into the balance in this matter expect to get something out of it which is definite, just and fair; and we have good reason to expect that after we have taken this matter up and threshed it out from one end of the State to the other that it will be to the advantage of the Legislature to meet us half-way. I have been in the Legislature as a labor lobbyist for some years and I have had a little experience in such matters.

I do not know, Mr. Chairman, as I can enlighten you very much on what we are going to do. We have taken up the State Bureau of Labor report which we received from the secretary of the Bureau of Labor, who is here present, and we tried to get at the real meaning of that report. We intend to take up the state factory inspector's reports also, and try to get at and understand the real meaning of all these figures in these reports. It is one thing to publish column after column of figures which nobody reads and nobody pays any attention to, but it is an entirely different proposition to get back of those columns of figures and see what they stand for. These columns of figures stand for men's lives and they stand for the happiness of the family; yes, and they stand for the prosperity of the employer as well.

In looking up a state report the other day I found an analysis that interested me. It showed apparently that every householder in the State of Massachusetts was paying $30 a year indirectly on account of the industrial accidents and occupational diseases that occurred in that State. That is where the public comes in; it costs the public too much. Should not that be shifted back upon the employer, and if it is shifted back upon the employer, the employer will, if possible, prevent the accidents, because it costs a great deal less to furnish suitable protection for the machinery than it does to pay damages to the injured employe or to the families of those who are killed.

I want to say this for the trades unions; we do not wish to rob the employer; we do not wish any bill that will materially injure the employer. We want to stop the accidents. We do not want damages from the employers; we want our brothers to remain alive and able to do their work.

Chairman Mercer: Is there any member of the first Illinois Commission present?

Prof. Ernst Freund (Illinois): Professor Henderson asked me a few years ago to give a little assistance in the drafting of the measure that the Commission had decided upon, and that is the only share I had in the work of that first Illinois Commission. That Commission was appointed for the sole purpose of reporting upon schemes of insurance. The whole matter of compensation was, therefore, only indirectly involved; at the same time the report as to insurance was unlimited, as far as I know, and not limited to accidents, but the Commission thought wise to confine their recommendations to an insurance scheme covering simply the matter of accidents.

They found that it would have been extremely difficult to recommend or try to secure some plan of compulsory insurance, and for that reason it was finally suggested that there should be an opportunity offered for the employers to make a contract with the employes by which the employers and the employes together might substitute for the liability under the common law or statute a plan of insurance which was worked out with some care, to some extent upon the basis of the English act, one of the main features being that the employers and employes should contribute each one-half of the insurance premium. But the whole scheme was a tentative one, especially this feature, which was so much opposed, of the sharing of the cost of insurance between the employers and employes, and it was by no means suggested as a final solution. The whole matter was a tentative method of dealing with this problem, it being believed that in this way the plan of insurance might get a foothold in the State and might approve itself by experience.

At the same time there was a very strong opposition and perhaps Mr. Wright could speak to that point, because Mr. Wright was one of those who opposed that scheme very strongly, and nothing came of it. I may say that in the same year Massachusetts passed a very similar measure, and that measure has been in effect now for several years, I believe, with very little practical result.

I think the failure or lack of suggestion of the plan of Massachusetts was due to the fact perhaps that the public was not sufficiently familiarized with the scheme, and no determined effort was made to introduce it.

As I say, the matter was suggested in Illinois as a tentative solution, not by any means as anything final; and I think it was felt that a compensation scheme of some kind would probably be called for sooner or later, and that was the reason the Legislature was urged to make provision for a compensation commission, which commission is now studying the problem.

Massachusetts.

James A. Lowell (Massachusetts): I am the last thing in commissions, together with these other gentlemen with me. We are just about a day old, and not quite that old. We were appointed in a great hurry when the bill went through, in order to get here to listen and find out what was being done by the other States, and in order to make up our mind what should be done in Massachusetts.

The only thing I desire to say now is to explain the kind of a commission this is. Massachusetts has got so far under the resolution appointing us that they say, "We want other laws." We are not to investigate the question of whether other laws would be good or not; the Legislature has said, "We want other laws. The present laws are not satisfactory, and we will appoint five residents of Massachusetts to look into the matter and to see what kind of other laws are proper," and it is their command to us that we report at the next Legislature before the middle of next January some kind of a bill to change the law relating to injuries of workmen in Massachusetts.

As perhaps most of you know, there have been two commissions in Massachusetts, or, rather, one Commission and a Legislative Committee. The first Commission sat in 1904, and Carroll D. Wright was the chairman. A great many things were referred to that Commission, not only this subject, but the subject of injunctions and the subject of blacklisting, and so on. That Commission reported a workmen's compensation act framed after the English act. That has come up before each succeeding Legislature since then. Then in 1907, I think it was, a Legislative Committee was appointed and a great many things referred to them, not only this present subject, but also boycotting and things of that kind. That committee did not report or, rather, the minority of it reported in favor of the same act which the former Commission reported in favor of, but it has never been passed, although it has come up at every session, and we have annual sessions in Massachusetts. So this Commission has now been appointed with the mandate to bring in some kind of a bill to change the law.

I might be pardoned for saying a word about what seems to me to be the Massachusetts situation as it differs from others. Our industry there is largely factory industry. Of course, we have cotton mills and woolen mills, and boot and shoe factories, and all that sort of thing. It is a kind of an industry where, take it by large numbers, the injuries are probably a good many, but not very serious, so that a bill which might work well with a State where there were a good many hazardous trades, such as mining and not much manufacturing, might not work well in Massachusetts. Therefore what this Commission has to consider is some kind of a bill which we must report relating to the industries of Massachusetts which will be financially possible.

Of course, we also have the same difficulty which everybody else has as to getting a constitutional bill. I suppose a voluntary bill would be constitutional, but, as Professor Freund has just said, we have had a voluntary bill in Massachusetts for two years which allowed, in the first place, the employers to propose a scheme for compensation and thereby get out from under our employer's liability law, and which the next year was amended so the employes could propose the scheme. That has been on the statute books for two years, and no one has ever made the slightest attempt to come in under it, so that as far as our present situation goes the voluntary system is of no use in Massachusetts. After a great deal of advertisement, nobody at the present time cares about it. It seems to me that some kind of a compulsory law would be necessary to effect anything, and the great legal difficulty is in getting one which will stand the test of the courts.

Joseph A. Parks (Massachusetts): I listened very attentively to the delegates from New York, and while they have done some work there, I was a little disappointed, on the whole. I do not think they have gone far enough to please your humble servant. I notice that they have not included any manufacturing establishments whatever. Of course, that touches me, because I happen to be a mill operative for about thirty years, and we have mostly mills in my State.

I have introduced the bill for workmen's compensation in the Massachusetts Legislature for the last four years, the bill Mr. Lowell referred to, and, as has been stated, they have reported two different measures in two different years, and no one took any notice of them. In the mills in the city where I live, and in all the mill cities in Massachusetts, they have a great many more small accidents than they do of the serious ones. That is especially true in the weaver room, and I happen to be a weaver. We have a lot of things that are liable to take a finger off or injure an eye, or the shuttle is liable to come out of the loom suddenly, or you are liable to slip and get caught in the machinery. The machines are all crowded together, and a girl is liable to get her skirts or her hand caught in the machinery, and when little things like that occur, injuries that will possibly lay the employe up for a week or two, or three or four weeks, the employe should be protected. The operatives do not care much about the loss of a finger or the loss of beauty, or any such thing as that. The particular thing that the operative is interested in is, if he is a man of family, how his family is going to make out while he is on a sickbed and unable to work. He does not make large enough earnings so that he can lay aside his little savings for a rainy day. Unfortunately, the mill operative is the worst paid employe in the United States, without any doubt. They contribute a good deal to the prosperity of the commonwealth which I have the pleasure in part to represent, but they get very little of the cream of the industry.

The industry in Massachusetts, as you all know, is a big success, and we are proud of it and want it to stay there, and do not want to do anything that will drive it out of the State; but we do want to do something for the mill operatives, at least I do, and I think that the Commission which has been appointed will bring about some system that will give them protection. They make all the way from $6 to $10.50 in the cotton mills. The average, I believe, is about $7 in Fall River to-day, so that you can see that a mill operative getting injured has not anything to fall back on. He wants to be assured that his family is going to be taken care of. The operative has recourse to the employer's liability act, but it takes too long. It is about two years before a case comes to court in our State, and while he is waiting his family is waiting for that income that has been cut off.

I hope the New York delegation will pardon my referring to their having left out the manufacturers. There is some reason, no doubt, and I suppose in part it is due to interstate competition, and that is something we will have to look out for. If we have the time, Mr. Chairman, before this convention is over, I would like to hear from the New York delegation in regard to that feature.

John Mitchell: I think perhaps Mr. Parks did not understand. As I remember it, both Miss Eastman and Professor Seager called attention to what was done for those employed in manufacturing in New York. While our bill did not include those engaged in manufacturing in express terms, it has provided for them. That is to say, we have taken from the manufacturer a great many of his defenses from suits for damages, so that those who are engaged in hazardous occupations may sue under the employers' liability law, and the employer sued cannot set up as a defense the assumption of risk; while mill employes, not only in Massachusetts, but in all the New England States, are denied redress simply because they assume the risk of the industry. Those who are employed in industries where they get their fingers nipped off and other accidents which are not necessarily fatal, but nevertheless cause a loss of two or three or four months' time, under the New York law can bring suit under the employers' liability law, and, no doubt, in most cases would be able to make settlements without going through the slow process of the courts, because there would be a liability on the part of the employer in New York, whereas in the case of Massachusetts I understand at present there is no liability at all. So that we have, while perhaps not ample provision for them, yet so much better provisions than they ever had before that I dare say that nine cases will be compensated for in a suit for damages or settled because of the right to sue, where only one would have been compensated for under the old law.

Mr. Parks: I was not aware of that. I thought the bill covered merely those "dangerous occupations" Miss Eastman referred to.

Mr. Mitchell: No, we have two bills in New York.

New Jersey.

Miles M. Dawson (New York): I am sorry to say that I do not know very much about what Governor Fort did in New Jersey, or what the New Jersey Commission has done, because I am a resident of New York. I do know, however, that a Commission has been appointed, and that several gentlemen prominent in labor circles are on the Commission, and an officer of the United States Steel Corporation, and an officer of the Public Service Company, which operates nearly all of the trolley lines and, I think, all the electric lighting systems in northern New Jersey, are members of the Commission. From the make-up of the Commission I should expect that they would do good work, but I do not understand that they have as yet completely organized. I have not heard of their appointing counsel even, although they may have done so, and I do not think they have yet got down to work. The fact that they are not represented at this Conference is an indication that such is the case.

I do not think there is anything peculiar about their appointment or any unusual situation in New Jersey, except, as I understand it, that the Governor particularly and the Legislature to a large degree, are interested as nearly everybody is becoming interested nowadays in this general question, and so the Governor considered that there ought to be something done in New Jersey.

Frederick L. Hoffman (New Jersey): I am not a member of the New Jersey Commission and so am not in a position to say very much about it. Mr. Clark, of the Clark Thread Company, is a member of the Commission, in addition to the gentlemen whom Mr. Dawson has mentioned. They have not as yet organized, so far as I know. They have not elected counsel, and they have not declared their plans, but I dare say when they get down to work they will follow very largely the methods of the New York Commission.

Ohio.

Ohio was called, but the members of the Ohio Commission had not yet been appointed by the Governor.

Michigan.

M. M. Duncan (Michigan): There is no Commission in Michigan. The Governor of Michigan, however, appointed a committee of seven delegates to attend this convention in order that we might learn of the progress that is being made and report back.

James V. Barry (Michigan): As Mr. Duncan stated, the Governor appointed seven delegates to this convention. We are here simply to observe what is taking place and to learn from the States that have made progress what report to make to our own State. We are not commissioned to prepare any legislation of any kind as are the States which have already spoken.

Maryland.

Chairman Mercer: Maryland had a bill at one time. Is there any one here representing Maryland? They had an act passed in 1902, and that act was declared unconstitutional by one of their lower courts in the spring of 1904, as I recall now, upon the ground that there were judicial powers delegated to the insurance commissioner.

H. Wirt Steele (Maryland): That is true; that act was declared unconstitutional and is inoperative. We have no legislation in Maryland covering the matter of workmen's compensation, and we have simply been relegated to the old doctrine of master and servant. I believe, however, that out of this Conference will perhaps come a movement for a Commission similar to the ones represented here.

Connecticut.

Chairman Mercer: Connecticut had a Commission that reported, I believe, last year. Is there anyone present from Connecticut?

Prof. Henry W. Farnam (Connecticut): I am from Connecticut, but I do not think there is very much to be said. I was not a member of that Commission, although I have read their report. It is rather negative, very cautious.

Chairman Mercer: Is there any other State Commission represented? We cannot tell nowadays whether we will have a Commission the next day or not, and there may have been two or three appointed since this convention was called. If not, I will tell you briefly how we have studied the question in Minnesota.

Minnesota.

Chairman Mercer: We have not pursued the same theory exactly in Minnesota that has been pursued in any other State. We did not commence as most of the States have commenced. The commencement of the study of this question in Minnesota was originated in the Minnesota State Bar Association. At their annual meeting in Duluth, in the summer of 1908, a paper was read having reference to the then unfortunate conditions at common law, and asking that something be done in the way, or along the line, of or on, some compensatory plan. Somebody made a motion that a committee be appointed to draft a bill and to report it back to the next Legislature. Some of them were afraid to have that done for fear the committee might draft a bill that would not be rational, that would not be fair, and that it might go through the Legislature as a bar association measure.

I was sitting in the front row, and I moved that the matter be referred to the Committee on Jurisprudence and Law Reform, knowing that I was not on that committee and could not be on it under the then circumstances. The motion passed and then the convention became frightened for fear that it had placed too much power in the committee and resolved to have that committee report to a special meeting of the bar association which would be called in St. Paul, in January, so that they might go over the recommendations that were to be made before they would be presented to the Legislature. Up to the 20th of October absolutely nothing had been done on the matter. Then it so happened that I was asked to resign from another committee and take the chairmanship of that committee, its chairman having resigned. The committee was composed of gentlemen whom it was supposed would well balance the sentiment on the question. There was one lawyer that had made a specialty of liability insurance defenses, there was one country senator, the dean of the College of Law of the Minnesota University, an attorney that earned most of his living from the railroads and then I, neither a laborer nor a capitalist.

We took up the question, and found immediately after going over it with different theorists and by correspondence that there was no data in Minnesota or elsewhere that we could get upon which to draw a proper bill. We looked at the experience of Maryland, we looked at the reports, and the experience of New York down to that time, and found that they had not passed a bill which had been recommended for a permissive plan of contract; we looked at conditions in Massachusetts and found they had not accomplished very much there except a lot of work; we looked over the work of the Illinois Commission and corresponded with them, and found that their bill which had recommended a permissive plan of contract had been defeated. We found in New York the constitutionality had been questioned, and in Massachusetts it had been questioned by the Commission.

In Illinois the reports showed that the plan they wanted to adopt could not be adopted constitutionally, and they recommended the permissive plan in lieu thereof. Connecticut, I think, at that time had appointed a Commission, but it had not yet reported. The United States had passed a law known as the Act of June 11, 1906, which affected the comparative negligence rule and also provided certain obligations with respect to offsetting settlements, and the Supreme Court had declared that unconstitutional in January, 1908. Two important measures had been presented to Congress with able arguments to support them, and up to that time they had been practically limited in their discussion to leave to print in the Congressional Record.

Our philanthropic and other state institutions in Minnesota had no data from which we could get any intelligent idea, according to the correspondence that we had. The Associated Charities, both state and national, had no sufficient data. The labor unions throughout the United States had no sufficient data. The National Manufacturers' Association had no sufficient data. I say this because I wrote to the President, and the correspondence was referred to Judge Emory, and we never got any information, because, as I understood, they had not then studied the matter sufficiently. I wrote to Mr. Mitchell, and he answered that he had no sufficient data, and referred me to Mr. Gompers.

I wrote to Mr. Gompers concerning it and he answered practically to the same effect, sending back a bill to establish comparative negligence and some other provisions somewhat along the federal lines that had been declared unconstitutional by the United States Supreme Court, because covering business within the State as distinguished from interstate business; that is, it related to both, as the court construed it.

From Eugene V. Debs, representing, as I thought, another group of men, I received an excellent letter explaining what had been done in other countries, and referring me to the data, he having evidently studied it considerably.

From James J. Hill, through his counsel, I received the answer that they favored such legislation if it could be properly made.

Andrew Carnegie had his secretary write that he favored an act along the lines of "Britain."

Now, I may confess to you that up to this time, neither the Minnesota employers nor the labor unions were in this, and not because I was a politician, but because I had had some experience, I concluded if I could get some expressions from these various interests that it might be valuable when we came to the Legislature with this bill, if some bill along this line was drafted. I ransacked the libraries at home, and communicated with the largest libraries in Boston and New York and all over the country to secure the books and magazine articles touching on the matter, but nowhere could we find any sufficient argument as to the constitutionality of such a law, nor any sufficient data to make an economic law. A paragraph by Professor Freund, in his work on Police Power, and an article by P. Tecumseh Sherman, a former commissioner of the State of New York, were about all I found on the question of constitutionality.

Later we found that the Russell Sage Foundation had been looking into the matter abroad, through two able men, Dr. Frankel and Mr. Dawson. They were abroad that summer to study the matter and we afterward got in touch with them. The result was that our committee, or rather myself and one other gentleman, because we were not able to get any of the others to meet with us, reported to the bar association that we thought we ought to have three kinds of laws passed; one to appoint a Commission to educate itself, another which would require those persons who had accidents, both employers and employes, to report data, and the third, one that would require the insurance companies insuring such risks in Minnesota to make reports in detail to the Commission, in order that they might study out precisely all the results.

We found that New York and Wisconsin had valuable articles, and so had Massachusetts and one or two other States, in their Labor Bureau reports. Our correspondence with every labor department in the United States did not develop very much more, except some valuable work by the Illinois Commission, and some valuable work by some professors in various institutions in the form of articles and a pamphlet, I believe by the Chicago Record-Herald, that was put out while the Illinois Commission had this work under consideration.

The bar association approved that report and asked us to send it on to the Legislature with recommendations for those three bills. Just prior to that we had arranged for meetings with the labor unions in our State for political reasons, to find out what their views were. Then with the president of the employers' association, again for political reasons, to find out what their views were. Finally we got the two together, and they had not been working together so well up there as they might have been in some other places. But by the time of the second meeting they passed a resolution which was to the effect that they would join hands in trying to get a compensation movement started in Minnesota, but that neither should undertake to take any advantage of the other in the Legislature, while they were both faithfully performing their part of that agreement, and they stuck loyally by it.

Then we took up the question of how we should present the matter to the Legislature, and the Governor said he would send a special message to the Legislature recommending our plan. That was done, and bills immediately began to appear in the Legislature from various motives, but we all three stood on the position that we were going to have an absolute plan on an intelligent basis if we could get it. Along toward the end of the session the Legislature passed the three bills which we had recommended.

Our Commission at the present time has thousands of reports of accidents in its possession, with the dates of the accidents and all the data concerning them, which we are not at liberty to make public because the bill does not permit us to do so. We wanted a bill that would prevent our doing so until we had our reports made, so that no one could get in and get hold of this information and take advantage of it.

In addition to that, we have the reports coming into the labor department as to the actual injuries that occur. Those we have not yet tabulated.

The Governor appointed George M. Gillette, who was a large manufacturer; William E. McEwen, the State Labor Commissioner, and myself on that committee. One of the first things we did when we met was to take up the question of the foreign laws. We found that they were not translated into English. One of the first things we undertook then was to get the labor department at Washington to translate all that were not translated. It agreed to do so. When we held the Atlantic City convention a resolution was passed at that meeting requesting the same thing. We wanted not only some education, but some uniform action. So we started to correspond with the members of the other commissions, like the New York Commission and some others that had been appointed in the meantime, and asked them to meet us and discuss matters. It was finally suggested that invitations be sent out for a joint meeting. That was done under my own name, representing the Minnesota Commission. We met down at Atlantic City, and after that meeting was held, we held our second meeting down in Washington, and this meeting is the third.

Mr. McEwen and Mr. Gillette have been abroad to study the question and have just returned. I hoped they would be here, but they have not arrived.

We have taken up the matter through correspondence, we have asked special questions through the press, and we expect to get our bills in shape so that they will be intelligible for discussion through this convention and others, and then put them up to the public and ask the manufacturers and the railroads and the labor unions and all of the other representative bodies that will be affected by them, to appoint men who may study the questions sufficiently to come before us and discuss them intelligently, so that we may be educated to the best possible theoretical standpoint.

In the meantime I shall probably go to Europe in July. Our report will not be made until next January. The bill which passed the Legislature requires us to study the conditions in this country and abroad, and to report a bill or bills which we think are consistent with the necessities of the case, and, so far as possible, to make the bill or bills constitutional. The report of the Atlantic City Conference, when it was printed, was sent to the Governor of each State, to the attorney-general of each State, and to the labor department of each State, and that report was quite a large volume. Bar associations throughout the United States have quite generally taken this matter up, and I should think in not less than eight or ten States they have it under consideration now. The labor unions in quite a number of States also have it under consideration. We sent out invitations to the governors, and nineteen of them appointed delegates to the Conference held in Washington, in January. Fifteen States were represented. I do not know how many States are represented here to-day, but all these delegates were accredited to come to this convention.

We have done a lot of miscellaneous work up there, but we are trying to get all our work in shape, so that when we do draft our bill we shall know as nearly as we possibly can, at least theoretically, what we are doing, and we are glad to see that New York and Wisconsin and all these other States are moving ahead. You have good commissions and we glory in the work you are doing. We only hope that we may be able to profit a little by your experience and by your legislation. We hope that the movement can be made as nearly uniform as possible. Up to the present time we have been discussing very largely in Minnesota the sort of a bill which has been sent out for discussion this afternoon, and I shall not go into that matter at all, but as temporary chairman. I wish to thank both you ladies and you gentlemen for being present at this meeting and for taking part in this discussion.

Prof. Seager: At the last meeting of the Conference a committee of three was appointed to choose an Executive Committee of fifteen members. It appears that I am the only member of that committee of three present at this meeting, so I can offer a unanimous report.

[The recommendations of Professor Seager were accepted by the Conference, which accordingly elected ten members of the Executive Committee to serve as executive officials with the five general officers. The complete list as finally elected is printed on the second page of the cover of this volume.]

SECOND SESSION, FRIDAY, JUNE 10, 1910, 2.00 P. M.

Chairman Mercer called the second session of the Conference to order at 2 P. M., and announced that the Reports of Committees was the first order of business.

As chairman of the Executive Committee, Professor Seager submitted a draft of by-laws, which was, with slight amendment, adopted by the Conference. The final draft is printed in the Introductory Note to this volume.

The report of the Committee on Nominations was then presented by Miles M. Dawson, and upon motion adopted by the secretary casting the unanimous ballot of the Conference for the election of the general officers as printed on the second page of the cover of this volume.

This completed the order of business to come before the Conference, and the discussion of the "Workers' Compensation Code" was taken up as follows:

Workers' Compensation Code.

Chairman Mercer: There is one further committee, I think, that was appointed to draft a bill for discussion, and we were so far apart that we never got together. One was sent out, however, in printed form, and I think all of you have had copies of it. A thousand copies were distributed.

I will say before we begin the discussion of that bill that it was meant to be drawn as an outline, and to be sufficiently broad in the different sections to raise all the points for discussion and not intended to be either technically correct, or what might be called an artistic measure. It was intended to be broad enough to provoke discussion as to all of the necessary elements of a bill. The formal program, as outlined, involves this one that was distributed, and if that brings out all the points which you want to discuss it might be best to take that up section by section and hear your views on that, or other schemes if you desire. It would seem hardly right, however, since there are a number of other bills here, and they might not all agree, to limit you to this specific bill, but you ought to be permitted to discuss, I suppose, the principle involved in each section as you take it up.

[The bill which was designed and used as an outline for the discussion which follows is here reprinted.]

[WORKERS' COMPENSATION CODE.]

(Outline for Discussion).

Be it enacted by the Legislature of the State of Minnesota:

Section 1. Dangerous employment defined. That every employer in the State of Minnesota conducting an employment in which there hereafter occurs bodily injuries to any of the employes arising out of, and in the course of, such employment, is for the purposes of this act hereby defined to be conducting a dangerous employment [at the time of such occurrence], and consequently subject to the provisions of this act and entitled to the benefits thereof.

Sec. 2. Liability of employers. That every such employer shall be liable to pay to every such employe so injured, or in case of his death, to the legal representatives, as hereinafter defined and apportioned for all bodily injuries received by such employe arising out of, and in the course of, such employment in this State disabling such employe from regular services in such employment for more than ten days and according to the schedule of rates contained in Section 3 of this act, on the condition precedent only, that, in case of dispute as to the amount to be paid for such injuries, or the failure or refusal to agree upon or to pay the same, such employe or the legal representatives thereof shall comply with the provisions of this act.

Sec. 3. Compensation allowed. The compensation herein and hereby allowed, if established as herein provided, having arisen out of and in the course of such dangerous employment within this State, shall be on the following basis:

(a) For immediate death or for death accruing within five years as a result of such injuries, or for injuries causing total incapacity for that service for five years or more, 60 per cent. of the amount of wages the injured was receiving at the time of the accident for a period of five years, provided, such payment shall not continue longer than to aggregate $3000.

(b) For total or partial disability for less than five years, 60 per cent. of the wages the injured was receiving at the time of the injury so long as there is complete disability for that service and that proportion of the said percentage which the depleted earning capacity for that service bears to the total disability when the injury is only partial or after it becomes only partial.

(c) In addition to the foregoing payments, if the injured loses both feet or both hands, or one foot and one hand, or both eyes, or one eye and one foot or one hand, he shall receive, during the full period of five years, 40 per cent. of the wages which he was receiving at the time of such accident; or if he loses one foot, one hand, or one eye, the additional compensation therefor shall be 15 per cent. of his said wages; or if he be otherwise maimed or disfigured, then, for such maiming or disfigurement, during the time it shall continue, he shall receive therefor such proportion of 40 per cent. as such maiming or disfigurement bears in depleted ability in the employment to the relative loss of the members specified herein; Provided, That in no case shall all of the payments received herein exceed in any month the whole wages earned when the injury occurs, nor shall the said 40 per cent. when all received, or any portion thereof, and the said 60 per cent. when all received, or any portion thereof, continue longer than to make all sums aggregate $5000.

Sec. 4. Repeal of other liabilities. The right to compensation and the remedy therefor, as herein specified, shall be in lieu of all other causes of action for such injuries and awards upon which they are based as to all persons covered by this act, whether formerly authorized or allowed by, or as the result of, either state, statute or common law, and no other compensation, right of action, damages or liability, either for such injuries or for any result thereof, either in favor of those covered by this act or against such employer based on state law, shall hereafter be allowed for such injuries to any persons or for any of the injuries covered by this act so long as this law shall remain in force, unless, and then only to the extent, that this law shall be specifically amended.

Sec. 5. Conditions precedent to right of recovery. That as a condition precedent to such right to compensation, such employe or the legal representatives thereof, as the case may be, shall within ten days after knowledge of such injury, unless there be valid excuse for delay and then immediately after such excuse is removed, cause a written notice thereof in substantially the form designated in paragraph —— (form to be provided) of this act, to be served upon the said employer by leaving a copy thereof addressed to the employer with the person in charge of such employe while he was so working, if that person is still in said employ, or with some superior agent, officer or person in charge of said business at any office thereof within this State in the same way that a summons can now be served; and in case of a dispute between the employe and the said employer, or in case of the failure of such employer and employe to agree upon such claim or in case of failure or refusal of such employer to pay, such employe shall submit his claim for compensation hereunder, both as to the nature of the injuries and the amount to compensate therefor under this act, to a board of three arbitrators, as hereinafter specified, in substantial compliance with the form contained in section —— hereof.

Sec. 6. Board of arbitration and awards. There is hereby created a Board of Arbitration and Awards, known as "Board of Awards" with jurisdiction throughout the State of Minnesota to arbitrate the questions arising hereunder and make awards consistent herewith, which is now and shall remain subdivided into districts with the same numbers and co-ordinate with the judicial districts of this State as they now are and may hereafter be changed, which board shall consist of three members from each judicial district, which members shall be non-partisan in politics, appointed by ....................., and hold their offices during a period of ............. years; except for fraud, or want of jurisdiction the findings and awards made herein shall be final and conclusive as to the nature of the injuries and the amount of compensation.

Sec. 7. (The law shall provide for compensation, expenses and secretary, and probably that the Clerk of Courts act as Clerk and make annual report to Commissioner of Labor.)

Sec. 8. Remedy.

(a) Every person claiming the benefits of compensation under this act, may issue to the employer from whom he claims the same a notice of claim in substantially the following form:

First: You are hereby notified that ...................... has this day filed the original of this notice of claim against you with the Clerk of the Board of Awards in District No. ........ and that you are required to answer the same with a copy served upon the undersigned within ten days.

Second: Said ............................... was in your employ as a ......................... at .................. on or about the ....... day of ........ 19.... and received an injury of the supposed general nature following: .......................................................... by reason of the following incident (describe it) and that such injury arose in and out of the course of said employment and has lasted more than ten days and it is claimed that you are liable to pay compensation for .......... per cent. of the wages which were $....... per ........ at the time of such injury, and for ....... per cent. for maiming and crippling.

(b) Answer. The answer shall

• 1. Admit or deny the employment.
• 2. Admit or deny that an injury was received at the time and place.
• 3. Admit or deny that the injury, if any, was in the course of employment and that it arose out of the course of employment.
• 4. Set up the injury claimed if different from the injured's claim.
• 5. Admit or deny or correct the amount of wages.
• 6. Give notice of any special claim to be urged to defeat compensation.

(c) Reply. The reply shall so far as possible admit or deny the specific statements of the answer which contradict or bar the complaint.

(d) Hearing. As soon as the reply is filed with proof of service the clerk shall set such claim for hearing in its order at the earliest date possible and notify both parties by mail, thereof.

Sec. 9. Award. The Board of Awards shall make its award upon a full hearing, to both parties held after notice and shall consider the whole record and may visit the premises if within its district and make such award as it shall decide to be consistent with the spirit and powers of this act, and in the following form:

1. Title.

2. We find in the above case that the injured received injuries arising in and growing out of the course of such employment when he was receiving as wages the sum of $......... per ............ payable .................

3. That the injuries appear now to be and are as follows: ..........................................................................................................

4. That for ................. disability the compensation to be paid is hereby found and awarded against the employer ................... of ................. at ............ per cent. of such wages payable to the following persons in the respective proportions for .................... and as said wages were paid and (of injuries uncertain) .................. this proceeding is hereby adjourned to the ........ day of ............... for further consideration.

Sec. 10. How risk may be insured. That any such employer, or any association of employers, may keep the risks created by this law fully covered by insurance, in associations, or insurance companies approved by the insurance department of this State, for policies covering the full liability under this law, and thereby relieve themselves from any further responsibility with respect to paying such compensation, and if any such employer or employers shall so insure such risks they shall be entitled to take and keep from the wages of their laborers, on a pro rata basis, of the wages, .......... per cent. of the amount necessary to pay the regular premiums for carrying such insurance.

Sec. 11. All insurance and all benefits of compensation due or to become due to any employe under this act shall be and remain exempt from garnishment and all other forms of attachment.

Sec. 12. Provision defining the words and phrases, and covering all tenses, pronouns and both sexes.

Sec. 13. Of course the jurisdictional features and all matters of practice, rehearings, etc., must be worked out after we see what substantive provisions are to be made.

• 1. Admit or deny the employment.
• 2. Admit or deny that an injury was received at the time and place.
• 3. Admit or deny that the injury, if any, was in the course of employment and that it arose out of the course of employment.
• 4. Set up the injury claimed if different from the injured's claim.
• 5. Admit or deny or correct the amount of wages.
• 6. Give notice of any special claim to be urged to defeat compensation.

Chairman Mercer: The reason for heading that, "Workers' Compensation Code," was to cover the constitutional provisions in some of the States, which prohibit a bill from covering more than one subject, which shall be expressed in its title, and the fact that the term "code" means a system of law. By the adoption of that scheme it was our intention to raise the point, so that if you agreed to that general idea you could adopt a law with a heading sufficiently broad to codify the law of your State on that question, to allow you to repeal such portions of the common law as you wanted to repeal as a part of that chapter, and not be subject to the limitations of the constitutions of a number of States which would prohibit your covering more than one law. Do you care to waste any time on the heading?

Mr. Dawson: I would like to ask one question about the heading and that is why the word "workers" was used instead of "workmen?"

Chairman Mercer: Like everything else, that was used to provoke discussion. Workmen's Compensation, or Workingmen's Compensation, seems to have a technical meaning in this field of legislation. It seems to be understood generally as covering this whole subject, and yet when you come to define your bill and outline it and cover it section by section, you must either leave something to the construction of the courts, or else you must make provision to the effect that workmen shall cover workwomen and children and boys and girls and everybody connected with it. It seems to me it would cover that point (although it seems to be revolutionary in form) if we used the term "workers," because that would include everybody.

Mr. Dawson: Your idea then was, Mr. Chairman, that the word "worker" is believed to have more comprehensive significance than the word "workmen," and that it would be certain to be so held by the courts?

Chairman Mercer: That was my own idea. I think I am sound on it, but I have tried enough lawsuits to know that a fellow is never sound until he is done. Shall we pass to the first section and leave it without any expression as to the heading?

Mason B. Starring (Illinois): I would like to inquire in regard to Section 1, as to what extent that applies to farm workers. Supposing a man was driving a dredging machine in the field and his horses became frightened and ran away and killed him. Is the farmer liable under this act?

Chairman Mercer: He was intended to be, if you adopt that act.

James A. Lowell (Massachusetts): I should like to inquire why you say "every employer conducting an employment in which there hereafter occurs bodily injuries to any of the employes" shall be deemed to be conducting a dangerous employment? Is that from some idea that if you call an employment dangerous you thereby are allowed to change the terms of it by your constitution, and if you do not call it dangerous, you are not?

Chairman Mercer: The idea was that if you worded the first section the way we have, it would provoke discussion on all those elements. That was the first plan. The fundamental reason was that if the employer was conducting an employment which was capable of being dangerous, and he guarded his employes through the safety devices he employed and the grade of men he employed, so that the whole scheme of his business was conducted in such a way that he did not have any accidents at all, that until he had some accidents he would not be classified as being in a dangerous employment. In other words, two men might run exactly the same institution with the same machinery manufacturing the same article; one set of men will run it so there will not be any accidents maybe in ten years; the other set may have ten accidents in the first year by reason of the way they rush, and their carelessness, and the grade of men they hire and their failure to protect their machinery and all that sort of thing. It was the intention to make that as broad as you possibly could make it, so as to provoke discussion as to whether you wanted to say every industry that had an accident should be liable, or whether you wanted to limit it to some of the industries as they have done in New York and in some of the foreign countries.

Mr. Lowell: Then it was not the idea that by calling a cotton factory dangerous you thereby are allowed to put on certain provisions of the law which, if you do not call it dangerous, might not be constitutional?

Chairman Mercer: Not exactly, except this: The idea was involved that it is within the province of the Legislature to declare an employment dangerous if there is a reasonable basis for argument as to whether it is a dangerous employment. That is our view of it. Now, if a court gets hold of that and should say that there was no basis for declaring that a dangerous employment, it would say that the Legislature acted arbitrarily.

Mr. Lowell: I should judge your idea was that you could not impose the law on a cotton factory simply as a cotton factory, but you could impose it on a dangerous factory.

Chairman Mercer: My idea was that it was a safer way to impose it on one that had accidents than to single out any certain line of industry that might not be as dangerous as some others.

Mr. Lowell: I do not know that you quite get my point. My point is that it may be impossible for the Massachusetts Legislature, we will say, to put a certain kind of liability onto a cotton factory, which it might put onto a powder factory. Would they, if that were the case, make the situation any different by calling the cotton factory a dangerous factory?

Chairman Mercer: Not unless there was some basis for it.

Mr. Lowell: They certainly do have dangers; we will assume that people are injured there.

Chairman Mercer: It is my view of the decisions of the court that that would be so. The reason that I put that that way is this: If you have an industry that has one accident, as expressed by Mr. Roosevelt in one of his messages, that is a dangerous industry to that man and his family. If it kills one man, in his way of putting it, it is not much consolation to his family or to him before he dies, to say that you are crippled, or you are hurt, but not in a dangerous employment. It was dangerous in his case. By defining it so that every employment that has an accident is dangerous, and then making the liability as one of the subsequent sections, exactly in proportion to the accidents they have instead of defining certain lines as dangerous, and others as non-dangerous, I think you have a better classification.

Prof. Seager: To put a strong case, do you think that the courts would back you up in saying that the mere fact, we will say, that an employe in a cotton factory slipped on a banana peel in going to his machine in the morning and was injured, constituted that a dangerous trade in a sense that would justify making an employer liable for the injury as the latter sections of the act hold? Under the latter sections of the act that would seem to be in the course of his employment; going to his machine would be a necessary part of his employment.

Chairman Mercer: If it grows out of the industry itself. In England in determining what is within the course of the employment, they have held that while two men might be working side by side in an employment, and one of them might be hurt while he was there, yet if he was hurt by reason of some horse play that he did on the side with some other fellow, that that was not really a risk of that industry, and that it does not grow out of the course of the employment. I should think your banana peeling case would be very close to the line, and it would depend upon whether it grew out of the employment.

Joseph A. Parks (Massachusetts): Suppose that we use a bobbin instead of a banana peel.

Prof. Seager: There was a case where a man's eye was put out by the cork of a pop bottle when he was eating his lunch, and they held that was in the course of his employment. Would our courts, in your opinion, back us up in describing liability for accidents in that sweeping way? I do not question at all the desirability of doing it; it is only a question of the constitutionality of doing it.

Mr. Lowell: Do you think it is necessary in Minnesota to distinguish between hazardous and non-hazardous employments? Apparently our friends in New York think that it is constitutionally necessary; that with certain risks, such as tunneling and railroad building and bridge building, which every one knows are hazardous, that a law applied to them would be constitutional, whereas if it applied to things that were not so hazardous it would not be constitutional. Is that your opinion of the law of Minnesota?

Chairman Mercer: In a measure, yes; that is, so far as classification is concerned; you must have a reasonable basis for the classification. If you do not cover all the accidents then you cannot cover part. It would be my judgment, unless you have a reasonable basis for the classification, that that would be true.

Mr. Lowell: The basis of classification would not be the fact then, that accidents happen, but that a good many happen. That is, it is not a hazardous business, but is a light business, as the insurance people call it.

Chairman Mercer: I think that the courts in some of the cases would maintain the idea that if you picked out the industries that had a large number of accidents and were sure they would have accidents, they would maintain that classification. But if you picked out an industry that had a great many accidents and classified it as dangerous, and let one alongside of it go that had fully as many accidents, I think possibly the courts might hold that you had acted arbitrarily, and therefore knock out your legislation, to use a street phrase.

Senator A. W. Sanborn (Wisconsin): If I understand that first section, it would include every employer, whether he is a farmer or a man who keeps a house servant.

Chairman Mercer: It was meant to be broad enough, Mr. Sanborn, to raise that question.

Mr. Sanborn: That is what I understand this section, as now worded, would embrace.

Chairman Mercer: Yes.

Senator John J. Blaine (Wisconsin): The point that worries me as much as anything, is the question as to whether it is a dangerous occupation. This first section provides that every employer conducting an employment in which there hereafter occurs bodily injuries is defined to be conducting a dangerous employment. Is there any substantial difference between saying it in those words and saying that every occupation is dangerous, because I do not believe that we can conceive of any occupation that is not dangerous or in which no accidents occur. Even a school boy stubs his toe on the street. It is not in and of itself a dangerous occupation, but he accidentally gets hurt. Now, where an employment in and of itself would not be dangerous, but where through some unforeseen circumstance an accident should occur, would that fact of itself make an industry a hazardous industry?

Chairman Mercer: When they covered that matter in England, I understand the definition was that the accident might occur in the course of the industry and not occur outside of it; it might occur outside of it and not occur within it. For instance, you might start to go to work, if you are a laborer, and after you got on the ground you might be traveling along the same as any other member of the public. You would be going to your employment but you would not be within the course of it. That is the way they defined it over there, and in that case the accident would be treated simply in the same way as an accident to any other member of the public. They might suffer an accident and yet there would not be a liability to the employer.

Senator Blaine: The point I can't distinguish is this: That the mere fact that an injury happens to an employment, that in and of itself makes that employment dangerous, any more than every industry is dangerous.

Chairman Mercer: It has got to occur within the employment; that is, it has got to be a result of the employment to make it dangerous.

Senator Blaine: In the first place, is it possible to conceive of any employment where there is not a hazard growing out of the employment? If that is true, why not say that every employer shall compensate under the terms of the act, regardless of whether he is engaged in a hazardous occupation or not. In other words, can you define a hazardous occupation by a legislative act? Will not that in the end be the point around which the whole question will revolve; i. e., is it not as a matter of fact from the evidence produced, a dangerous occupation, no matter whether accidents have or have not resulted?

For that reason is it not quite impossible to define a hazardous occupation?

Chairman Mercer: That question in fact is first determined by the Legislature, as I understand it, as to whether it is a dangerous employment.

Senator Blaine: Can the Legislature intrude upon the judicial functions of our government? Can they say that is a fact or must not the courts do that themselves?

Chairman Mercer: No, the courts, as I understand it, take judicial knowledge of the history and conditions out of which the legislative act may grow, and I believe would follow the rule the power of the State it is valid, although the judgment of the as laid down in Lockner vs. New York, 198 U. S., where the Court said: "This is not a question of substituting the judgment of the Court for that of the Legislature. If the act be within Court might be opposed to the enactment of such law."

The reason why we did not cover every employment was that it did not seem to us every employment was dangerous, and if it was not dangerous and we were relegated to the police power of the State to define it, the law would be held invalid. But it seemed to me individually, and I do not want anybody to think that this is the judgment of the committee, because they could not all get together, that if we based it on the fact that injuries did occur, nobody could ever stand up in a courtroom or sit in comfortable court chambers and write an opinion on the theory that this employment, when an accident has occurred in the case, is not a dangerous employment if the Legislature find it so. The idea was to cover all the States so as to leave it as safe as we could get it.

Senator Blaine: Certainly the section will do what you contemplated, bring about discussion.

Mr. Dawson: On the point that has just been raised I would like to say that this matter of the power of the Legislature to define a thing was before the United States Supreme Court in an oleomargarine case, originating, I think, in Pennsylvania. There had previously been an act passed, I think, by the New York Legislature, which, though not declaring oleomargarine deleterious to health, imposed certain regulations amounting almost to prohibition.

That was tested through the various courts to the Supreme Court of the United States, I think, and it was definitely held by that court that the case had not been made out that it was deleterious. In other words, it was virtually held that it was not, and so that the law was not a proper exercise of the police power. Following this the Legislature of Pennsylvania adopted a similar bill, containing a declaratory provision that it is deleterious to health. That was carried to the same court and the Court held that the Legislature was entirely within its rights and had power to so declare. I think that might have some bearing upon this question.

I would like to ask the Chairman if the effect of this is not virtually to declare all occupations hazardous occupations in view of the following facts: That the law would in any event be a nullity if no accidents happened in any given employment, and the moment an accident does happen in that employment, it is declared to be a dangerous employment; and would not the law cover that very accident.

Chairman Mercer: The proposed law as I have since changed it has this provision: "That every employer in the State of —— conducting an employment in which there hereafter occurs bodily injury to any of the employes, arising out of, and in the course of, such employment, is for the purposes of this act hereby defined to be conducting a dangerous employment at the time of such occurrence." That was not in the original draft and I do not know whether it is in the one you have or not. I put it in recently. When I came to read that section critically I concluded that the criticism you make is a good one.

I do not want to take your time, but there are two or three short sentences here by the United States Supreme Court on that question which I think are authoritative, and I would like to read them. In the case of Holden vs. Hardy, 169 U. S., page 365, the Court says: "The protection of the health and morals as well as the lives of citizens is within the police power of the State Legislature."

Then again, on page 789, the Court said: "Of course it is impossible to forecast the character or extent of these changes, but in view of the fact that from the day the Magna Charta was signed to the present moment, amendments to the structure of the law have been made with increasing frequency, it is impossible to suppose they will not continue and the law be forced to adapt itself to new conditions of society, and particularly to the new relations between employers and employes as they arise."

That was a case of regulating the hours of work in mining. After reviewing a number of the decisions upon the police power and establishing that it was within the power of the Legislature to judge of those matters, the Court said: "These employments when too long pursued, the Legislature has judged to be detrimental to the health of the employes, and so long as there are reasonable grounds for thinking that that is so, this decision upon this subject cannot be reviewed by the Federal Courts."

I take that as pretty conclusive, and they have followed that rule since.

Senator Sanborn: In discussing a bill like this, section by section, it strikes me that we are going to reach practical results. There are three fundamental principles that underlie this whole subject that we ought to determine, or else we should proceed to draw either two or three bills based upon the different views upon those underlying principles:

First: Shall we prepare a bill that is compulsory upon the part of the employer and optional as to the employe?

Second: Shall we prepare a bill that is compulsory upon the part of the employer and compulsory upon the part of the employe?

Third: Shall we prepare a bill that is optional both with the employer and with the employe?

To my mind those are fundamentals, and if we are going to get at what is known as a uniform bill that will meet with the approbation of the different States and meet the constitutional difficulties that we find in the way, we must prepare a bill along lines that will meet the different situations in the different States, at least in those States that compete from a manufacturing point of view.

I am here for information and I feel that we want light along those lines. While I am willing to concede for the sake of argument that under the police regulation you can make this law compulsory on the part of the employer, as New York has done, I am not yet willing to concede that you can make that law compulsory on the part of the employe. I think there is something yet there that must be overcome before you can reach that result.

To illustrate what I mean for a moment, if you can imagine for a minute that I own this building, I should contend that the Legislature of the State of Illinois could not authorize you by your negligence to destroy this building and give me in compensation ten dollars; to make that the law. Of course my right arm may not be as important to me as the building, but I do not yet believe that the Legislature of Illinois can even authorize you by your negligence to destroy that and thus destroy my means of livelihood and say that I shall receive no compensation, or say that it shall be ten dollars or say that it shall be one hundred dollars, or that it shall be one thousand dollars which I shall receive for that arm; to destroy my usefulness to myself and my family and fix the compensation at one hundred dollars or a thousand dollars, without my consent. I have cited that as a mere matter of illustration, that there are difficulties to overcome if you are going to say that that is a compulsory law upon the part of the employe without any election.

If we are drafting a bill that is compulsory upon the part of the employer the first question we have to consider is in Section 1 of this bill; we have got to define the dangerous employment. You can see then it is very material in that form of bill to define a dangerous employment. If, on the other hand, we are drawing an optional bill we have no interest in any such definition at all.

I just offer these as suggestions, if we are going at this subject from a practical standpoint, and if we can I am perfectly willing to go to the extent of saying that we will work along all three lines and then determine which is the more likely to stand up and effect the purpose that we are trying to accomplish.

Samuel R. Harper (Illinois): On the question presented by the first section of the tentative bill presented this afternoon, the rule, as I understand it, is that the declaration by the Legislature that a certain trade is hazardous is merely an indication of the legislative judgment on that proposition and nothing more; and that that judgment is revocable by the courts and is not conclusive unless the declaration is based in some way on some reasonable classification of hazardous trades and industries. If the classification is based on some reasonable ground arising from the hazards of the business then the courts will say that is a reasonable classification, that the legislative classification is conclusive.

On the points suggested by Senator Sanborn, I agree with him that the fundamental to adopt at the outset is whether or not we shall adopt a compulsory system or whether it shall be elective. If it is compulsory it must rest entirely within the police power of the State. If it is an elective system then it is a matter of contract and option with both parties. We ought to determine first what we are going to do about that because if we have an elective system we need not worry at all about the constitutional problem or the question of police power.

I agree with the Senator on the proposition that a State under its police power may establish a compulsory system of compensation so far as the employer is concerned. It seems to me, however, when we attempt to shift the basis of our present system from that of tort to compensation we are simply reading into the oral contract of employment between the employer and employe a guarantee on the part of the employer that up to a certain limit he will protect and insure the employe against the hazards of that trade. We all of us, of course, are familiar with the doctrine of respondeat superior, and that doctrine arose in exactly the same way over two hundred years ago and it has never been questioned as yet. That arose not out of any theory of natural justice, but upon the theory exclusively that it was a proposition of safety, and that if the employer wished to delegate his business or that part of it conducted by servants, to those servants, he certainly should be responsible for their acts as long as they were in the discharge of their duties.

Now, why isn't it, Mr. Chairman, just as reasonable to assume and why is it in conflict with any theory of natural justice to say that if an employer seeks to employ a man in a hazardous trade or in any trade, he shall compensate him to a reasonable extent; he shall guarantee to him a limited compensation and that he shall guarantee him against the consequences of an injury while he is engaged in that employment? Will not the courts read into that bill practically that contract of guaranty?

We are talking about judge-made law on this proposition. The Legislature has never attacked this proposition at all. The courts have established this doctrine of respondeat superior and as to the safety appliances, etc., is the form of a Workmen's Compensation Law.

Prof. Seager: The suggestion contained in this first clause seems to me a very valuable and helpful one; that is, that judicial opinion in this country may be ripe for taking this view other doctrines of that kind, and we do not know what the courts would do if the proposition were presented to them. I believe we lack courage a little bit on that subject. I should think that the courts would welcome the co-operation of the Legislature in changing this system. I believe they are in hearty sympathy with the movement, as indicated by recent decisions of the courts throughout the country. I believe that they are themselves out of sympathy entirely with the worn out doctrines which they are obliged to follow because of the precedents before them; and if the Legislature would step in and give them a chance I believe that they would be with them.

Chairman Mercer: In making this draft of a bill we fully appreciated that the outlines which Senator Sanborn has given substantially represents the different theories; but this bill was drafted on the theory of bringing up for discussion the whole subject as to whether or not you wanted to define your dangerous employments and make them compulsory against the employer; to say that the employe should not have any common law liability; that he should comply with this law before he had any remedy; that he should be compelled to go before a committee of awards and that the award when given should be conclusive as to questions of fact, leaving the legal liability and the jurisdictional questions open to the courts on appeal. That was the scheme on which this was drawn.

Prof. Seager: The suggestion contained in this first clause seems to me a very valuable and helpful one; that is, that judicial opinion in this country may be ripe for taking this view that a few years ago would have seemed rather revolutionary; the view that any industry in which an accident occurs is to that extent a hazardous industry, and therefore subject to special regulation under the police powers of the States, and that the form of regulation that should be adopted along with the regulations as to the safety appliances, etc., is the form of a Workmen's Compensation Law.

The New York Commission, while some of us perhaps were inclined to agree with the optimistic views that Mr. Harper has just expressed, was not able, as a body, to believe that the courts would go quite so far as this first clause contemplates. It was for that reason mainly that we contented ourselves with enumerating extra-hazardous occupations which came clearly under the police power of the State, and limited the compensation in those employments to risks of those employments as distinguished from accidents that merely happen in connection with the employment or that might have happened in any employment. I hope very much myself that the other States which are working on this problem will be more courageous than we were, and that they will place the matter before the courts in this extreme form and determine what the courts will do with it. I think perhaps there is more reason to expect a favorable decision from some of the courts in the Western States than from the New York Court of Appeals. Looking at the matter as a national problem, I think it would perhaps be better to have the question come up first in some of the middle Western States before the courts there rather than to come up in some of our Eastern States.

At the same time I agree with the suggestion that Senator Sanborn raised as to the necessity of protecting the rights of the employes. I do not see how, on the basis of the whole scheme of property rights, we can take away from the employe his right to sue for damages when the injury is due directly and clearly to the negligence of the employer, without a constitutional amendment. But that difficulty can be met by a saving clause that in practice need not interfere very much with the efficiency of the system. That is the plan we adopted in our New York bill, merely putting in a clause to the effect that except where the accident was due to the personal negligence of the employer the compensation bill should apply, leaving it to the courts to decide just how far that would go. A safety clause of that kind in practice, in my opinion, would be largely disregarded. After this system came into operation, the advantage of getting a certain compensation would appeal to a great majority of injured workmen as preferable to the gamble of a law suit. So that from the point of view of the expense to the employer such a provision need not impose a serious additional burden along with the burden of the compensation law.

Mr. Parks (Massachusetts): In our State there is a bill before the Committee on Labor in the Legislature, of which I am a member, prohibiting the employment of minors under eighteen in trades which are dangerous to health. The committee decided to refer the bill to the State Board of Health, and an investigation by the State Board showed that continuous employment in such industries as the manufacture of cuff buttons and collar buttons, and so forth, was deleterious to the health on account of the small pieces of bone and other substances which had an injurious effect upon the health of the operatives. One factory in particular was alluded to at a hearing which we had on the matter, and after we passed the bill, and it became a law, I understand that that factory changed over their whole system, so that that particular industry instead of being as before this act was passed a dangerous industry to health, it became a safe industry to the health of minors. That was one effect of the naming of a particular industry as a dangerous trade, so far as health is concerned.

Prof. Ernst Freund (Illinois): It seems to me there are two things to be sought for in this matter, and that is, first, to find some principle of classification and then to see what portion of that principle we can reasonably hope to cover by legislation. When I look at this section it does not seem to me that the principle is what I could call a sound one, and I mean by that, one that appeals to our sense of justice. It is true that the English act is very comprehensive, but it has never appeared to me that the rule of the English law by which the head of a household is liable to a domestic servant for that domestic servant's carelessness is really a reasonable and just principle of law. Therefore we ought to have some particular reason for putting the liability upon the employer, and that reason might well be some particular element of danger. By calling an employment dangerous, I think, we do not make it dangerous even if now and then accidents occur in it. I think there are certain elements of danger which we could all point out, and that there are some elements of danger which we could all agree upon as making an occupation extremely hazardous.

We should also consider whether it would not be wise for the present to confine the liability to concerns of some magnitude. I know that it is very much questioned whether you can confine this extraordinary liability to large concerns, because it is open to the criticism that you simply make those pay who can afford to guard themselves through liability insurance. However, I think there is a real difference of principle based upon difference of size, because the relation of the small concern to the employe is totally different from that of the large concern, and it is only in the large concerns that these conditions prevail which, under modern conditions, seem to demand a shifting of the responsibility from the employe to the employer.

If you wish to be conservative, and not cover all the industries that have some element of hazard, you have to decide the very difficult question where to draw the line. When I read over the list of employments singled out in the compulsory bill recommended by the New York Commission, I was very much puzzled by the obvious fact that certain obviously hazardous employments were excluded, until I was informed that the principle was that of the non-competitive industry. Now, if you say that these industries are selected because they cannot get away from the law by moving across the state line, the discrimination looks objectionable; if, however, you say they are selected because they are not exposed to competition from industries operating under laws more favorable to the employer, the discrimination looks much more plausible. Even so, it is doubtful whether the principle of selection would approve itself to the Supreme Court of this State.

Dr. W. H. Allport (Illinois): It is evident we have in contemplation here two methods of arriving at a tentative solution of this question. (1) One method suggested by Professor Freund, which looked to me like a modification of the German method; that is, the method by which certain occupations have been gradually selected as being more and more hazardous, and gradually including the less hazardous occupations, until, I believe, in Germany the law covers all occupations and almost all employments. That is, it now covers farm employes, agricultural employes and the employes of our small establishments. (2) The other method suggested by Senator Sanborn, as a tentative law, follows more or less the English method, where the law was made right away to cover practically all employments; that is, the farming industry, domestic industry and other industries.

In considering this first clause of the tentative code, it would seem to me as though it would be possible to arrive at some definite definition. The English law has a section devoted entirely to the matter of definition, and defines employer, employe, dependent, and so forth, and some interesting questions have come up recently as to what are dependents under the English law. But the English law omits altogether to express what are hazardous employments. I will read the first section of Chapter LVIII of the Workmen's Compensation Act of 1906, which is now the law of England:

"If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the first schedule to this act."

That covers all forms of employment, but it does not define any employment as being hazardous or non-hazardous.

I suppose the basis of our effort in this tentative "workers' code" is to arrive at something which will go behind our present courts and bring us in line with the state and federal constitutions, which will give the power to a State to enact a law which under ordinary circumstances it would not have, and so, therefore, the effort is made here to define dangerous employments. It is interesting to note the ingenuity with which that point is reached; i. e., that any employment becomes dangerous after an accident happens. In the Wisconsin law the effort is made directly; there is no definition, so far as I can see, in the Wisconsin law nor in the New York law. There are certain employments which are defined as extra-hazardous and, therefore, subject to state regulation.

There is another point in Section 1 and that is this: "An employment in which there hereafter occurs bodily injuries to any of the employes arising out of." To again recur to the English law, and also the German law, the English law covers other points besides bodily injuries; it covers in certain schedules dangerous diseases and trades accompanied by dangerous diseases. The question, therefore, which would arise in my mind is whether or not we should not in this tentative law embody a consideration of certain dangerous diseases. I happen to be a member of the Illinois Commission on Occupational Diseases, and, therefore, perhaps would be expected to see that in the bill, but aside from that fact it does seem to me that that is a matter for careful consideration. That the bill should cover diseases arising from mining work, diseases from deposits in the lungs where men are engaged in the woolen industry and the lead industry and in the match industry, and certain other dangerous occupations which are dangerous not on account of the personal injuries sustained by the employes, but on account of the danger to the health.

Chairman Mercer: Section 12 says. "Provision defining the words and phrases, and covering all tenses, pronouns and both sexes," should be put into the bill when it is finally drawn.

Frank Buchanan (Illinois): I am a structural iron worker by trade and have worked at it for many years, and I guess there would not be much trouble in defining it as an extra-hazardous trade. We have a large number of men injured and killed at that trade, and because of that fact I have given this question of employers' liability much thought and study. For that reason I am here as an interested party to-day.

I am not in harmony with that part of the law as drawn up here which takes away the rights of a workman to bring an action in the courts. I take that view, first, because I believe it is the constitutional right of every worker to have action in the courts if he sees fit to do so. Secondly, I believe that when we do have that right of action, due to the negligence of an employer, that it is going to cause the employer to be more careful of how he conducts that particular kind of work, and the most important thing about this whole matter is to secure something that will act as a preventive of accidents.

Prof. John H. Gray (Minnesota): Would you be in favor, Mr. Buchanan, of a bill which gave the choice to the workmen?

Mr. Buchanan: No; I favor the English law that gives him the right to bring suit if he sees fit and then take the compensation if he fails in his suit.

I had hoped, in view of the fact that they have brought this law about in European countries, that some of our States might take it up in the same manner. We have a problem here to confront and overcome that they do not have in European countries, in that we are largely governed by the laws of the various States, which, of course, differ widely. In the manufacturing industry, that gives ground for an argument against one State creating a law that does not apply to another State, the claim being made that the competition is not equal, and, of course, there is some ground for that argument. I believe, however, it is going to take a long time and be a very difficult thing to bring about the necessary uniform legislation throughout the States. For that reason I had hoped that we might be able to find some way to create a law affecting only those industries that may not be in competition with the industries of other States, such industries as have been referred to, as the building industry and construction work, and so forth. There are more men killed and injured in that industry than any other two, but due to the fact that there is no competition in that industry it is possible to make a law affecting that and let it be tried out. It might be a starting place to find a way to cover the other industries without affecting those industries in each State which are competitive or obstructing them in any way.

I find, however, in reading the history of the British labor legislation that the secretary of the Building Employers' Association in one of the large cities there has stated that that law has not obstructed the business, decreased the wages or decreased the profits, and that the building employers are not justified in any way in finding any fault with that law. It seems to me, therefore, there ought to be some way in which to pass a measure that would apply to that industry. Of course, it may be said that I am a structural iron worker, and interested in that craft which is a building trade, and am, therefore, more selfish about this matter. I feel, however, a great interest in securing better protection for workers in all industries. I know the dissatisfaction that is caused under present conditions; I know the women that are condemned to the washtub and the orphans to poverty, and, therefore, I am always willing to exercise my best efforts to secure better protection for those workers. In my opinion the present condition is the biggest blot that we have on our civilization.

Take my own trade, for instance, I have some figures here which I secured from our local secretary which may be of use to you. In 1906, out of a membership of about 1200, we had 29 deaths from accidents and 114 injuries. In 1907, when the work was very much reduced and our membership was greatly reduced, due to the panic brought on at that time, we had 132 injured and 12 deaths. In 1908, while still suffering from the effects of the panic, and not so many men working, probably seven hundred or eight hundred, we had 113 accidents and 7 deaths. In 1909, after we had recovered from the panic in our industry, we had 175 injured and 8 deaths out of a membership of about 1200.

In 1906, from the best information I could get, we paid out $12,060 in benefits to those who were injured or killed, and the average length of time of disability of those who were disabled was six weeks.