stances the Legislature has made workmen's compensation legislation elective rather than compulsory, and in sustaining the validity of the former the courts have attached importance to the fact that the employer was under no legal compulsion to accept the provisions of the act. Opinion of Justices, 209 Mass. 607; Young v. Duncan, 218 Mass. 346; Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571. It is true that in the foregoing cases the courts were careful to refrain from stating any opinion as to whether this non-compulsory feature of the legislation was necessarily of controlling importance, but it is equally true that considerable importance was attached to the fact that the legislation was optional. On the other hand the New York Court of Appeals, in a much criticised decision (Ives v. South Buffalo Ry. Co., 201 N. Y. 271), declared a compulsory workmen's compensation act unconstitutional. Subsequently the New York Constitution was amended and the New York Court of Appeals consequently upheld the validity of a workmen's compensation act that contained certain compulsory features, Matter of Jensen, 215 N. Y. 514. A few courts have held that compulsory compensation acts are constitutional even in the absence of constitutional amendments, Raymond v. Chicago Ry. Co., 233 Fed. 169; (Washington Act) Stoll v. Pacific Coast S. S. Co., 205 Fed. 169; (Washington Act) State v. Mountain Timber Co., 75 Wash. 581; American Coal Co. v. Alleghany County Commons, 128 Md. 564. In California (1914) there was a constitutional amendment that permitted a compulsory compensation act.1

Without inquiring too curiously whether the Massachusetts Supreme Court would uphold the constitutionality of a compulsory workmen's compensation act in the absence of a constitutional amendment, it seems proper to state that social insurance legislation, if compulsory, would be best safeguarded by an express constitutional amendment. It is significant that in the State of California such an amendment has recently been passed to pave the way for legislation of this kind. Of course even an amendment to the State constitution would not be necessarily conclusive, because the further question would arise as to whether such legislation violated the Fourteenth Amendment

1 Report of Commission on Industrial Relations, VI, 5413.

to the Federal Constitution. See Noble State Bank v. Haskell, 219 U. S. 104; Matter of Jensen v. So. Pacific R.R., supra.

But all doubt on this point seems to have been removed by the decision of the Federal Supreme Court in New York Central R.R. Co. v. White, 243 U. S. 188, decided March 6, 1917. The Federal Supreme Court unanimously held that the New York compulsory workmen's compensation act to which reference has been made in this summary is not repugnant to the provisions of the Fourteenth Amendment.

B. Old Age Pensions and Unemployment Insurance.

As neither of these forms of social welfare legislation have ever been adopted in any of the States, the question of legislative authority has never been presented to the courts, but the following passage from Mr. Justice Pitney's opinion in the very recent case of Mountain Timber Co. v. Washington1 (March 6, 1917), where the Federal Supreme Court upheld the Washington Compulsory Workmen's Compensation Act, is of such importance from the point of view of social insurance projects that it deserves extensive quotation. At page 238 he said: "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. 'The police power of a State is as broad and plenary as its taxing power.' Kidd v. Pearson, 128 U. S. 1, 26. In Barbier v. Connolly, 113 U. S. 27, 31, the court, by Mr. Justice Field, said: 'Neither the (fourteenth) amendment, broad and comprehensive as it is nor any other amendment, was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, 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

1 Mountain Timber Company v. Washington (1917), 243 U. S. 219.

be had in certain districts, such as for draining marshes and irrigating arid plains. Special burdens are often necessary for general benefits 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 any one, 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 Central R.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 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 Insurance Commission, 158 Pac. Rep. 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 Fourteenth Amendment."

In view of the recent Federal decisions herein referred to it is obvious that "constitutional rigorism" is at an end and that the Fourteenth Amendment to the Constitution of the United States does not stand in the way of State legislation respecting health, unemployment and old age insurance. Of course the question still remains as to whether such measures are in violation of the provisions of the Constitution of Massachusetts.

That doubt could be removed by the adoption of an amendment expressly conferring upon the Legislature authority to provide for the several forms of social insurance herein considered.1

1 Since the above statement was prepared, the following constitutional amendment has been adopted in Massachusetts:

Amendment XLVII. The maintenance and distribution at reasonable rates, during time of war, public exigency, emergency or distress, of a sufficient supply of food and other common necessaries of life and the providing of shelter, are public functions, and the commonwealth and the cities and towns therein may take and may provide the same for their inhabitants in such manner as the general court shall determine.

BIBLIOGRAPHY.

Evans, L. B. Leading Cases on American Constitutional Law. Chicago, 1916.

Frankfurter, F. "Hours of Labor and Realism in Constitutional Law,"

Harvard Law Review, XXIX, 353.

Pound, R. "Liberty of Contract," Yale Law Journal, XVIII, 454. Freund, E. "Limitation of Hours of Labor and the Federal Supreme Court," Green Bag, XVII, 411.

Standards of American Legislation. Chicago, 1917.

Hand, L. "Due Process of Law and the Eight Hour Day," Harvard Law Review, XXI, 495.

Mansfield, P. Printed Argument of Philip Mansfield, Esqr., and Briefs in Bay State Arbitration of 1915. Massachusetts State Library. Powell, T. R. "Administrative Exercise of the Police Power," Harvard Law Review, XXIV, 268-289.

Bufford, C. "The Scope and Meaning of Police Power," California Law Review, IV, 269–292.

Mallonee, L. D. "Police Power: Proper and Improper Meanings," American Law Review, L, 861.

Corwin, E. S. "Social Insurance and Constitutional Limitations," Yale Law Journal, XXVI, 431.