MOUNTAIN TIMBER CO. v. STATE OF WASHINGTON(1917)
[243 U.S. 219, 222] Messrs. F. Markoe Rivinus, Theodore W. Reath, Coy Burnett, and Edmund C. Strode for plaintiff in error.
Mr. W. V. Tanner, Attorney General of Washington, for defendant in error.
Mr. Justice Pitney delivered the opinion of the court:
This was an action brought by the state against plaintiff in error, a corporation engaged in the business of logging timber and operating a logging railroad and a sawmill having power-driven machinery, all in the state of Washington, to recover under chap. 74 of the Laws of 1911, known as the Workmen's Compensation Act, certain premiums based upon a percentage of the estimated pay roll of the workmen employed by plaintiff in error during the three months beginning October 1, 1911. Plaintiff in error by demurrer raised objections to the act, based upon the Constitution of the United States. [243 U.S. 219, 228] The supreme court of Washington overruled them, and affirmed a judgment in favor of the state (75 Wash. 581, L.R.A. --, --, 135 Pac. 645, 4 N. C. C. A. 811), following its previous decision in State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 37 L.R.A.(N.S.) 466, 117 Pac. 1101, 2 N. C. C. A. 823, 3 N. C. C. A. 599; and the case comes here under 237, Judicial Code [ 36 Stat. at L. 1156, chap. 231, Comp. Stat. 1913, 1214].
The act establishes a state fund for the compensation of workmen injured in hazardous employment, abolishes, except in a few specified cases, the action at law by employee against employer to recover damages on the ground of negligence, and deprives the courts of jurisdiction over such controversies. It is obligatory upon both employers and employees in the hazardous employments, and the state fund is maintained by compulsory contributions from employers in such industries, and is made the sole source of compensation for injured employees and for the dependents of those whose injuries result in death. We will recite its provisions to an extent sufficient to show the character of the legislation.
The 1st section contains a declaration of policy, reciting that the common-law system governing the remedy of workmen against employers for injuries received in hazardous work is inconsistent with modern industrial conditions, and in practice proves to be economically unwise and unfair; that the remedy of the workman has been uncertain, slow, and inadequate; that injuries in such employments, formerly occasional, have become frequent and inevitable; and that the welfare of the state depends upon its industries, and even more upon the welfare of its wage workers. 'The state of Washington, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for workmen, injured in extra hazardous work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as otherwise provided in this [243 U.S. 219, 229] act; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished, except as in this act provided.'
The 2d section, declaring that while there is a hazard in all employment, certain employments are recognized as being inherently constantly dangerous, enumerates those intended to be embraced within the term 'extra hazardous,' including factories, mills, and workshops where machinery is used, printing, electrotyping, photoengraving and stereotyping plants where machinery is used; foundries, blast furnaces, mines, wells, gas works, waterworks, reduction works, breweries, elevators, wharves, docks, dredges, smelters, powder works, logging, lumbering, and shipbuilding operations, logging, street, and interurban railroads, steamboats, railroads, and a number of others; at the same time declaring that if there be or arise any extra hazardous occupation not enumerated, it shall come under the act, and its rate of contribution to the accident fund shall be fixed by the department created by the act upon the basis of the relation which the risk involved bears to the risks classified, until the rate shall be fixed by legislation. The 3d section contains a definition of terms, and, among them: 'Workman means every person in this state, who, after September 30, 1911, is engaged in the employment of an employer carrying on or conducting any of the industries scheduled or classified in 4, whether by way of manual labor or otherwise, and whether upon the premises or at the plant, or, he being in the course of his employment, away from the plant of his employer;' with a proviso giving to a workman injured while away from the plant through the negligence or wrong of another not in the same employ, or, if death result from the injury, to his widow, children, or dependents, an election whether to take under the act or to seek a remedy against the third party. 'Injury' [243 U.S. 219, 230] is defined as an injury resulting from some fortuitous event, as distinguished from the contraction of disease.
Section 4 contains a schedule of contribution, reciting that industry should bear the greater portion of the burden of the cost of its accidents, and requiring each employer prior to January 15th of each year to pay into the state treasury, in accordance with the schedule, a sum equal to a percentage of his total pay roll for the year, 'the same being deemed the most accurate method of equitable distribution of burden in proportion to relative hazard.' The application of the act as between employers and workmen is made to date from the 1st day of October, 1911, the payment for that year to be made prior to that date and upon the basis of the pay roll of the last preceding three months of operation. At the end of each year an adjustment of accounts is to be made upon the basis of the actual pay roll. The schedule divides the various occupations into groups, and imposes various percentages upon the different groups, the lowest being 1 1/2 per cent, in the case of the textile industries, creameries, printing establishments, etc., and the highest being 10 per cent, in the case of powder works. The same section establishes forty-seven different classes of industry, and declares:
Section 5 contains a schedule of the compensation to be awarded out of the accident fund to each injured workman, or to his family or dependents in case of his death, and declares that except as in the act otherwise provided, such payment shall be in lieu of any and all rights of action against any person whomsoever. Where death results from the injury, the compensation includes the expenses of burial, not exceeding $75 in any case, a monthly payment of $20 for the widow or invalid widower, to cease at remarriage, and $5 per month for each child under the age of sixteen years until that age is reached, but not exceeding $35 in all, with a lump sum of $240 to a widow upon her remarriage; if the workman leaves no wife or husband, but a child or children under the age of sixteen years, there is to be a monthly payment of $10 to each child until that age is reached, but not exceeding a total of $35 per month; if there be no widow, widower, or child under the age of sixteen years, other dependent relatives are to receive monthly payments equal to 50 per cent of the average monthly support actually received by such dependent from the workman during the twelve months next preceding his injury, but not exceeding a total of $20 per month. For permanent total disability of a workman, he is to receive, if unmarried, $20, or, if married, $25 per month, with $5 per month additional for each child under the age of sixteen years, but not exceeding $35 per month in all. (Section 7 provides that the monthly payment, in case of death or permanent total disability, may be converted into a lump sum payment, not in any case exceeding $4,000, according to the expect- [243 U.S. 219, 233] ancy of life.) For temporary total disability there is a somewhat different scale, compensation to cease when earning power is restored. For permanent partial disability the workman is to receive compensation in a lump sum equal to the extent of the injury, but not exceeding $1,500.
By 6, if injury or death results to a workman from his deliberate intention to produce it, neither he nor his widow, child, or dependents shall receive any payment out of the fund. If injury or death results to a workman from the deliberate intention of the employer to produce it, the workman or his widow, child, or dependent shall have the privilege to take under the act, and also have a cause of action against the employer for any excess of damage over the amount receivable under the act.
By 19 provision is made for the adoption of the act by the joint election of any employer and his employees engaged in works not extra hazardous. By 21, the Industrial Insurance Department is created, consisting of three commissioners. By 20, a judicial review is given, in the nature of an appeal to the superior court, from any decision of the department upon questions of fact or of the proper application of the act, but not upon matters resting in the discretion of the department. Other sections provide for matters of detail, and 11 renders void any agreement by employer or workman to waive the benefit of the act.
From this recital it will be clear that the fundamental purpose of the act is to abolish private rights of action for damages to employees in the hazardous industries (and in any other industry, at the option of employer and employees), and to substitute a system of compensation to injured workmen and their dependents out of a public fund established and maintained by contributions required to be made by the employers in proportion to the hazard of each class of occupation. [243 U.S. 219, 234] While plaintiff in error is an employer, and cannot succeed without showing that its constitutional rights as employer are infringed (Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531, 544 , 58 S. L. ed. 713, 719, 34 Sup. Ct. Rep. 359; Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571, 576 , 59 S. L. ed. 364, 368, 35 Sup. Ct. Rep. 167, 7 N. C. C. A. 570), yet it is evident that the employer's exemption from liability to private action is an essential part of the legislative scheme and the quid pro quo for the burdens imposed upon him, so that if the act is not valid as against employees, it is not valid as against employers.
However, so far as the interests of employees and their dependents are concerned, this act is not distinguishable in any point raising a constitutional difficulty from the New York Workmen's Compensation Act, sustained in New York C. R. Co. v. White, decided this day [ 243 U.S. 188 , 61 L. ed. 667, 37 Sup. Ct. Rep. 247]. It is true that in the Washington act the state fund is the sole source from which the compensation shall be paid, whereas the New York act gives to the employer an option to secure the compensation either through state insurance, insurance with an authorized insurance corporation, or by a deposit of securities with the state Commission. But we find here no ground for a distinction unfavorable to the Washington law.
So far as employers are concerned, however, there is a marked difference between the two laws, because of the enforced contributions to the state fund that are characteristic of the Washington act, and it is upon this feature that the principal stress of the argument for plaintiff in error is laid.
Two of the constitutional objections may be disposed of briefly. It is urged that the law violates 4 of article 4 of the Constitution of the United States, guarantying to every state in the Union a republican form of government. As has been decided repeatedly, the question whether this graranty has been violated is not a judicial but a political question, committed to Congress, and not to the courts. Luther v. Borden, 7 How. 1, 39, 42, 12 L. ed. 581, 597, 599; Pacific [243 U.S. 219, 235] States Teleph. & Teleg. Co. v. Oregon, 223 U.S. 118 , 56 L. ed. 377, 32 Sup. Ct. Rep. 224; Kiernan v. Portland, 223 U.S. 151 , 56 L. ed. 386, 32 Sup. Ct. Rep. 231; Marshall v. Dye, 231 U.S. 250, 256 , 58 S. L. ed. 206, 207, 34 Sup. Ct. Rep. 92; Ohio ex rel. Davis v. Hildebrandt, 241 U.S. 565 , 60 L. ed. 1172, 36 Sup. Ct. Rep. 708.
The 7th Amendment, with its provision for preserving the right of trial by jury, is invoked. It is conceded that this has no reference to proceedings in the state courts (Minneapolis & St. L. R. Co. v. Bombolis, 241 U.S. 211, 217 , 60 S. L. ed. 961, 963, L.R.A. 1917A, 86, 36 Sup. Ct. Rep. 595), but it is urged that the question is material for the reason that if the act be constitutional it must be followed in the Federal courts in cases that are within its provisions. So far as private rights of action are preserved, this is no doubt true; but, with respect to those, we find nothing in the act that excludes a trial by jury. As between employee and employer, the act abolishes all right of recovery in ordinary cases, and therefore leaves nothing to be tried by jury.
The only serious question is that which is raised under the 'due process of law' and 'equal protection' clauses of the 14th Amendment. It is contended that since the act unconditionally requires employers in the enumerated occupations to make payments to a fund for the benefit of employees, without regard to any wrongful act of the employer, he is deprived of his property, and of his liberty to acquire property, without compensation and without due process of law. It is pointed out that the occupations covered include many that are private in their character, as well as others that are subject to regulation as public employments, and it is argued that, with respect to private occupations (including those of plaintiff in error), a compulsory compensation act does not concern the interests of the public generally, but only the particular interests of the employees, and is unduly oppressive upon employers, and arbitrarily interferes with and restricts the management of private business operations.
The statute, although approved March 14, 1911, took effect as between employers and workmen on October 1 [243 U.S. 219, 236] in that year, actions pending and causes of action existing on September 30 being expressly saved. It therefore disturbed no vested rights, its effect being confined to regulating the relation of employer and employee in the hazardous occupations in futuro.
If the legislation could be regarded merely as substituting one form of employer's liability for another, the points raised against it would be answered sufficiently by our opinion in New York C. R. Co. v. White, 243 U.S. 188 , 61 L. ed. 667, 37 Sup. Ct. Rep. 247, where it is pointed out that the common-law rule confining the employer's liability to cases of negligence on his part or on the part of others for whose conduct he is made answerable, the immunity from responsibility to an employee for the negligence of a fellow employee, and the defenses of contributory negligence and assumed risk, are rules of law that are not beyond alteration by legislation in the public interest; that the employer has no vested interest in them nor any constitutional right to insist that they shall remain unchanged for his benefit; and that the states are not prevented by the 14th Amendment, while relieving employers from liability for damages measured by common-law standards and payable in cases where they or others for whose conduct they are answerable are found to be at fault, from requiring them to contribute reasonable amounts and according to a reasonable and definite scale by way of compensation for the loss of earning power arising from accidental injuries to their employees, irrespective of the question of negligence, instead of leaving the entire loss to rest where it may chance to fall; that is, upon particular injured employees and their dependents.
But the Washington law goes further, in that the enforced contributions of the employer are to be made whether injuries have befallen his own employees or not; so that, however prudently one may manage his business, even to the point of immunity to his employees from acci- [243 U.S. 219, 237] dental injury or death, he nevertheless is required to make periodical contributions to a fund for making compensation to the injured employees of his perhaps negligent competitors.
In the present case the supreme court of Washington (75 Wash. 581, 583) sustained the law as a legitimate exercise of the police power, referring at the same time to its previous decision in the Clausen Case ( 65 Wash. 156, 203, 207), which was rested principally upon that power, but also (pp. 203, 207) sustained the charges imposed upon employers engaged in the specified industries as possessing the character of a license tax upon the occupation, partaking of the dual nature of a tax for revenue and a tax for purposes of regulation. We are not here concerned with any mere question of construction, nor with any distinction between the police and the taxing powers. The question whether a state law deprives a party of rights secured by the Federal Constitution depends not upon how it is characterized, but upon its practical operation and effect. Henderson v. New York (Henderson v. Wickham) 92 U.S. 259, 268 , 23 S. L. ed. 543, 547; Stockard v. Morgan, 185 U.S. 27, 36 , 46 S. L. ed. 785, 794, 22 Sup. Ct. Rep. 576; Galveston, H. & S. A. R. Co. v. Texas, 210 U.S. 217, 227 , 52 S. L. ed. 1013, 1037, 28 Sup. Ct. Rep. 638; Western U. Teleg. Co. v. Kansas, 216 U.S. 1, 28 , 30 S., 54 L. ed. 355, 366, 367, 30 Sup. Ct. Rep. 190; Ludwig v. Western U. Teleg. Co. 216 U.S. 146, 162 , 54 S. L. ed. 423, 429, 30 Sup. Ct. Rep. 280; St. Louis Southwestern R. Co. v. Arkansas, 235 U.S. 350, 362 , 59 S. L. ed. 265, 271, 35 Sup. Ct. Rep. 99. And the Federal Constitution does not require a separate exercise by the states of their powers of regulation and of taxation. Gundling v. Chicago, 177 U.S. 183, 189 , 44 S. L. ed. 725, 729, 20 Sup. Ct. Rep. 633.
Whether this legislation be regarded as a mere exercise of power of regulation, or as a combination of regulation and taxation, the crucial inquiry under the 14th Amendment is whether it clearly appears to be not a fair and reasonable exertion of governmental power, but so extravagant or arbitrary as to constitute an abuse of power. All reasonable presumptions are in favor of [243 U.S. 219, 238] its validity, and the burden of proof and argument is upon those who seek to overthrow it. Erie R. Co. v. Williams, 233 U.S. 685, 699 , 58 S. L. ed. 1155, 1160, 51 L.R.A.(N.S.) 1097, 34 Sup. Ct. Rep. 761. In the present case it will be proper to consider: (1) Whether the main object of the legislation is, or reasonably may be deemed to be, of general and public moment, rather than of private and particular interest, so as to furnish a just occasion for such interference with personal liberty and the right of acquiring property as necessarily must result from carrying it into effect . (2) Whether the charges imposed upon employers are reasonable in amount, or, on the other hand, so burdensome as to be manifestly oppressive. And ( 3) whether the burden is fairly distributed, having regard to the causes that give rise to the need for the legislation.
As to the first point: The authority of the states to enact such laws as reasonably are deemed to be necessary to promote the health, safety, and general welfare of their people carries with it a wide range of judgment and discretion as to what matters are of sufficiently general importance to be subjected to state regulation and administration. Lawton v. Steele, 152 U.S. 133, 136 , 38 S. L. ed. 385, 388, 14 Sup. Ct. Rep. 499. 'The police power of a state is as broad and plenary as its taxing power.' Kidd v. Pearson, 128 U.S. 1, 26 , 32 S. L. ed. 346, 352, 2 Inters. Com. Rep. 232, 9 Sup. Ct. Rep. 6. In Barbier v. Connolly, 113 U.S. 27, 31 , 28 S. L. ed. 923, 924, 5 Sup. Ct. Rep. 357, the court, by Mr. Justice Field, said: 'Neither the [14th] Amendment-broad and comprehensive as it is-nor any other Amendment, was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity. From the very necessities of society, legislation of a special character, having these objects in view, must often be had in certain districts, such as for draining marshes and irrigating arid plains. Special burdens are often necessary for general benefits,- [243 U.S. 219, 239] for supplying water, preventing fires, lighting districts, cleaning streets, opening parks, and many other objects. Regulations for these purposes may press with more or less weight upon one than upon another, but they are designed, not to impose unequal or unnecessary restrictions upon anyone, but to promote, with as little individual inconvenience as possible, the general good. Though, in many respects, necessarily special in their character, they do not furnish just ground of complaint if they operate alike upon all persons and property under the same circumstances and conditions. Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the Amendment.' It seems to us that the considerations to which we have adverted in New York C. R. Co. v. White, supra, as showing that the Workmen's Compensation Law of New York is not to be deemed arbitrary and unreasonable from the standpoint of natural justice, are sufficient to support the state of Washington in concluding that the matter of compensation for accidental injuries with resulting loss of life or earning capacity of men employed in hazardous occupations is of sufficient public moment to justify making the entire matter of compensation a public concern, to be administered through state agencies. Certainly the operation of industrial establishments that, in the ordinary course of things, frequently and inevitably produce disabling or mortal injuries to the human beings employed, is not a matter of wholly private concern. It hardly would be questioned that the state might expend public moneys to provide hospital treatment, artificial limbs, or other like aid to persons injured in industry, and homes or support for the widows and orphans of those killed. Does direct compensation stand on a less secure ground? A [243 U.S. 219, 240] familiar exercise of state power is the grant of pensions to disabled soldiers and to the widows and dependents of those killed in war. Such legislation usually is justified as fulfilling a moral obligation, or as tending to encourage the performance of the public duty of defense. But is the state powerless to compensate, with pensions or otherwise, those who are disabled, or the dependents of those whose lives are lost, in the industrial occupations that are so necessary to develop the resources and add to the wealth and prosperity of the state? A machine as well as a bullet may produce a wound, and the disabling effect may be the same. In a recent case, the supreme court of Washington said: 'Under our statutes the workman is the soldier of organized industry, accepting a kind of pension in exchange for absolute insurance on his master's premises.' Stertz v. Industrial Ins. Commission, 91 Wash. 588, 158 Pac. 256, 263. It is said that the compensation or pension under this law is not confined to those who are left without means of support. This is true. But is the state powerless to succor the wounded except they be reduced to the last extremity? Is it debarred from compensating an injured man until his own resources are first exhausted? This would be to discriminate against the thrifty and in favor of the improvident. The power and discretion of the state are not thus circumscribed by the 14th Amendment.
Secondly, is the tax or imposition so clearly excessive as to be a deprivation of liberty or property without due process of law? If not warranted by any just occasion, the least imposition is oppressive. But that point is covered by what has been said. Taking the law, therefore, to be justified by the public nature of the object, whether as a tax or as a regulation, the question whether the charges are excessive remains. Upon this point no particular contention is made that the compensation allowed is unduly large; and it is evident that, unless it be [243 U.S. 219, 241] so, the corresponding burden upon the industry cannot be regarded as excessive if the state is at liberty to impose the entire burden upon the industry. With respect to the scale of compensation, we repeat what we have said in New York C. R. Co. v. White, that, in sustaining the law, we do not intend to say that any scale of compensation, however insignificant, on the one hand, or onerous, on the other, would be supportable, and that any question of that kind may be met when it arises.
Upon the third question,-the distribution of the burden,-there is no criticism upon the act in its details. As we have seen, its 4th section prescribes the schedule of contribution, dividing the various occupations into groups, and imposing various percentages evidently intended to be proportioned to the hazard of the occupations in the respective groups. Certainly the application of a proper percentage to the pay roll of the industry cannot be deemed an arbitrary adjustment, in view of the legislative declaration that it is 'deemed the most accurate method of equitable distribution of burden in proportion to relative hazard.' It is a matter of common knowledge that, in the practice of insurers, the pay roll frequently is adopted as the basis for computing the premium. The percentages seem to be high; but when these are taken in connection with the provisions requiring accounts to be kept with each industry in accordance with the classification, and declaring that no class shall be liable for the depletion of the accident fund from accidents happening in any other class, and that any class having sufficient funds to its credit at the end of the first three months or any month thereafter is not to be called upon, it is plain that, after the initial payment, which may be regarded as a temporary reserve, the assessments will be limited to the amounts necessary to meet actual losses. As further rebutting the suggestion that the imposition is exorbitant or arbitrary, we should accept the declaration of intent that [243 U.S. 219, 242] the fund shall ultimately become neither more nor less than self- supporting, and that the rates are subject to future adjustment by the legislature and the classifications to rearrangement according to experience, as plain evidence of an intelligent effort to limit the burden to the requirements of each industry.
We may conveniently answer at this point the objection that the act goes too far in classifying as hazardous large numbers of occupations that are not in their nature hazardous. It might be sufficient to say that this is no concern of plaintiff in error, since it is not contended that its businesses of logging timber, operating a logging railroad, and operating a sawmill with power-driven machinery, or either of them, are nonhazardous. Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531, 544 , 58 S. L. ed. 713, 719, 34 Sup. Ct. Rep. 359. But further, the question whether any of the industries enumerated in 4 is nonhazardous will be proved by experience, and the provisions of the act themselves give sufficient assurance that if in any industry there be no accident, there will be no assessment, unless for expenses of administration. It is true that, while the section as originally enacted provided for advancing the classification of risks and premium rates in a particular establishment shown by experience to be unduly dangerous because of poor or careless management, there was no corresponding provision for reducing a particular industry shown by experience to be included in a class which imposed upon it too high a rate. This was remedied by the amendment of 1915, quoted in the margin, above, which, however, cannot affect the decision of the present case. But in the absence of any particular showing of erroneous classification,-and there is none,-the evident purpose of the original act to classify the various occupations according to the respective hazard of each is sufficient answer to any contention of improper distribution of the burden amongst the industries themselves. [243 U.S. 219, 243] There remains, therefore, only the contention that it is inconsistent with the due process and equal protection clauses of the 14th Amendment to impose the entire cost of accident loss upon the industries in which the losses arise. But if, as the legislature of Washington has declared in the 1st section of the act, injuries in such employments have become frequent and inevitable, and if, as we have held in New York C. R. Co. v. White, the state is at liberty, notwithstanding the 14th Amendment, to disregard questions of fault in arranging a system of compensation for such injuries, we are unable to discern any ground in natural justice or fundamental right that prevents the state from imposing the entire burden upon the industries that occasion the losses. The act in effect puts these hazardous occupations in the category of dangerous agencies, and requires that the losses shall be reckoned as a part of the cost of the industry, just like the pay roll, the repair account, or any other item of cost. The plan of assessment insurance is closely followed, and none more just has been suggested as a means of distributing the risk and burden of losses that inevitably must occur, in spite of any care that may be taken to prevent them.
We are clearly of the opinion that a state, in the exercise of its power to pass such legislation as reasonably is deemed to be necessary to promote the health, safety, and general welfare of its people, may regulate the carrying on of industrial occupations that frequently and inevitably produce personal injuries and disability, with consequent loss of earning power, among the men and women employed, and, occasionally, loss of life of those who have wives and children or other relations dependent upon them for support, and may require that these human losses shall be charged against the industry, either directly, as is done in the case of the act sustained in New York C. R. Co. v. White, 243 U.S. 188 , 61 L. ed. 667, 37 Sup. Ct. Rep. 247, or by publicly adminis- [243 U.S. 219, 244] tering the compensation and distributing the cost among the industries affected by means of a reasonable system of occupation taxes. The act cannot be deemed oppressive to any class of occupation, provided the scale of compensation is reasonable, unless the loss of human life and limb is found in experience to be so great that, if charged to the industry, it leaves no sufficient margin for reasonable profits. But certainly, if any industry involves so great a human wastage as to leave no fair profit beyond it, the state is at liberty, in the interest of the safety and welfare of its people, to prohibit such an industry altogether.
To the criticism that carefully managed plants are in effect required to contribute to make good the losses arising through the negligence of their competitors, it is sufficient to say that the act recognizes that no management, however careful, can afford immunity from personal injuries to employees in the hazardous occupations, and prescribes that negligence is not to be determinative of the question of the responsibility of the employer or the industry. Taking the fact that accidental injuries are inevitable, in connection with the impossibility of foreseeing when, or in what particular plant or industry, they will occur, we deem that the state acted within its power in declaring that no employer should conduct such an industry without making stated and fairly apportioned contributions adequate to maintain a public fund for indemnifying injured employees and the dependents of those killed, irrespective of the particular plant in which the accident might happen to occur. In short, it cannot be deemed arbitrary or unreasonable for the state, instead of imposing upon the particular employer entire responsibility for losses occurring in his own plant or work, to impose the burden upon the industry through a system of occupation taxes limited to the actual losses occurring in the respective classes of occupation.
The idea of special excise taxes for regulation and rev- [243 U.S. 219, 245] enue, proportioned to the special injury attributable to the activities taxed, is not novel. In Noble State Bank v. Haskell, 219 U.S. 104 , 55 L. ed. 112, 32 L.R.A.(N.S.) 1062, 31 Sup. Ct. Rep. 186, Ann Cas. 1912A, 487, this court sustained an Oklahoma statute which levied upon every bank existing under the laws of the state an assessment of a percentage of the bank's average deposits, for the purpose of creating a guaranty fund to make good the losses of depositors in insolvent banks. There, as here, the collection and distribution of the fund were made a matter of public administration, and the fund was created not by general taxation, but by a special imposition in the nature of an occupation tax upon all banks existing under the laws of the state. In Hendrick v. Maryland, 235 U.S. 610, 622 , 59 S. L. ed. 385, 390, 35 Sup. Ct. Rep. 140, and Kane v. New Jersey, 242 U.S. 160, 169 , 61 S. L. ed. 222, 37 Sup. Ct. Rep. 30, we sustained laws, of a kind now familiar, imposing license fees upon motor vehicles, graduated according to horse power, so as to secure compensation for the use of improved roadways from a calss of users for whose needs they are essential, and whose operations over them are peculiarly injurious. And see Charlotte, C. & A. R. Co. v. Gibbes, 142 U.S. 386, 394 , 395 S., 35 L. ed. 1051, 1054, 1055, 12 Sup. Ct. Rep. 255, and cases cited. Many of the states have laws protecting the sheep industry by imposing a tax upon dogs in order to create a fund for the remuneration of sheep owners for losses suffered by the killing of their sheep by dogs. And the tax is imposed upon all dog owners, without regard to the question whether their particular dogs are responsible for the loss of sheep. Statutes of this character have been sustained by the state courts against attacks based on constitutional grounds. Morey v. Brown, 42 N. H. 373, 375; Tenney v. Lenz, 16 Wis. 566; Mitchell v. Williams, 27 Ind. 62; Van Horn v. People, 46 Mich. 183, 185, 186, 41 Am. Rep. 159, 9 N. W. 246; Long-year v. Buck, 83 Mich. 236, 240, 10 L.R.A. 42, 47 N. W. 234; Cole v. Hall, 103 Ill. 30; Holst v. Roe, 39 Ohio St. 340, 344, 48 Am. Rep. 459; McGlond v. Womack, 129 Ky. 274, 283, et seq., 17 L.R.A.(N.S.) 855, 111 S. W. 688. [243 U.S. 219, 246] We are unable to find that the act, in its general features, is in conflict with the 14th Amendment. Numerous objections are urged, founded upon matters of detail, but they call for no particular mention, either because they are plainly devoid of merit, are covered by what we have said, or are not such as may be raised by plaintiff in error.
Perhaps a word should be said respecting a clause in 4 which reads as follows: 'It shall be unlawful for the employer to deduct or obtain ( sic) any part of the premium required by this section to be by him paid from the wages or earnings of his workmen or any of them, and the making or attempt to make any such deductions shall be a gross misdemeanor.' If this were to be construed so broadly as to prohibit employers and employees, in agreeing upon wages and other terms of employment, from taking into consideration the fact that the employer was a contributor to the state fund, and the resulting effect of the act upon the rights of the parties, it would be open to serious question whether, as thus construed, it did not interfere to an unconstitutional extent with their freedom of contract. So far as we are sware, the clause has not been so construed, and on familiar principles we will not assume in advance that a construction will be adopted such as to bring the law into conflict with the Federal Constitution. Bachtel v. Wilson, 204 U.S. 36, 40 , 51 S. L. ed. 357, 359, 27 Sup. Ct. Rep. 243; Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531, 546 , 58 S. L. ed. 713, 720, 34 Sup. Ct. Rep. 359.
The CHIEF JUSTICE, Mr. Justice McKenna, Mr. Justice Van Devanter, and Mr. Justice McReynolds dissent.
[ Footnote 1 ] By Sess. Laws 1915, chap. 188, pp. 674, 677, 4 was amended so as to substitute in the place of the clause italicized the following: 'In that the intent is that the fund created under this section shall ultimately become neither more nor less than self-supporting, exclusive of the expense of administration, the rates named in this section are subject to future adjustment by the industrial insurance department, in accordance with any relative increase or decrease in hazard shown by experience, and if in the judgment of the industrial insurance department the moneys paid into the fund of any class or classes shall be insufficient to properly and safely distribute the burden of accidents occurring therein, the department may divide, rearrange or consolidate such class or classes, making such adjustment or transfer of funds as it may deem proper.'