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ed. 772, 38 Sup. Ct. Rep. 337, Ann. Cas., lature to require all employers to con1918E, 593; Allgeyer v. Louisiana, 165 tribute to the state insurance fund, or U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. to place limitations upon the privilege 427.

of carrying their own risks, and of the Neither Ohio Gen. Code, 1465-69, l'urther right and duty of the industrial nor $ 1465-101, as amended in 1917, was commission to change and modify its intended to apply, and neither does ap- findings when warranted by its best ply, to contracts theretofore made by judgment. Said contracts are not withemployers.

in the provisions of art. 1, § 10, or the Sturges v. Carter, 114 U. S. 511, 29 L. 14th Amendment, § 1, of the Constitued. 240, 5 Sup. Ct. Rep. 1014; Bernier tion of the United States. v. Becker, 37 Ohio St. 72; Kelley v. Hudson County Water Co. v. McKelso, 5 Ohio St. 198; State ex rel. Carter, 209 U. S. 349, 52 L. ed. 828, 28 Yaple v. Creamer, 85 Ohio St. 349, 39 Sup. Ct. Rep. 529, 14 Ann. Cas. 560; L.R.A.(N.S.) 694, 97 N. E. 602, 1 N. C. Louisville & N. R. Co. v. Mottley, 219 C. A. 30; Hathaway v. Mutual L. Ins. U. S. 467, 55 L. ed. 297, 31 L.R.A. (N.S.) Co. 99 Fed. 534; Burridge v. New York 671, 31 Sup. Ct. Rep. 265; Green v. L. Ins. Co. 211 Mo. 158, 109 S. W. 560; Appleton Woolen Mills, 162 Wis. 145, Black, Const. Law, 3d ed. § 296; Lewis's 155 N. W. 958; Union Dry Goods Co. v. Sutherland, Stat. Constr. 2d ed. § 642. Georgia Pub. Serv. Corp. 142 Ga. 841,

Mr. B. W. Gearheart argued the cause, L.R.A.1916E, 358, 83 S. E. 946; Maniand, with Mr. John G. Price, Attorney 274, 26 Sup. Ct. Rep. 127; State ex rel.

gault v. Springs, 199 U. S. 473, 50 L. ed. General of Ohio, filed a brief for defendants in error:

Pratt v. Seattle, 73 Wash. 396, 132 Pac. Granting, for the sake of argument,

45; German Ins. Co. v. Com. 141 Ky. amounts to a classification of employers, ed. 530, 29 Sup. Ct. Rep. 370, 15 Ann. that the legislation complained of 606, 133 N. W. 793; Hammond Packing

Co. v. Arkansas, 212 U. S. 322, 53 L. reasons may be found justifying such classification. Unless the action of the Cas. 645; Missouri P. R. Co. v. Kansas, legislature in making such classification 216 U. S. 262, 54 L. ed. 472, 30 Sup. was arbitrary and wholly unreasonable,

Ct. Rep. 330; Texas & N. 0. R. Co. v. it will not be disturbed by the courts.

Miller, 221 U. S. 408, 55 L. ed. 789, 31 Chicago, B. & Q. R. Co. v. McGuire, Sup. Ct. Rep. 534; Louisville & N. R. 219 U. S. 549, 55 X. ed. 328, 31 Sup. Ct! Co. v. Garrett, 231 U. S. 298, 58 L. ed. Rep. 259; Missouri, K. & T. R. Co. v.

229, 34 Sup. Ct. Rep. 48; Re College May, 194 U. S. 267, 48 L. ed. 971, 24 Hill Land Assn. 157 Cal. 596, 108 Pac. Sup. Ct. Rep. 638; Carroll v. Greenwich 681; Venner v. Chicago City R. Co. 216 Ins. Co. 199 U. S. 401, 50 L. ed. 246, 26 n. 170, 138 Am. St. Rep. 229, 92 N. Sup. Ct. Rep. 66; Bachtel v. Wilson, E. 613, 20 Ann. Cas. 607; Sherman v. 204 U. S. 36, 51 L. ed. 357, 27 Sup. Ct. Smith, 1 Black, 587, 17 L. ed. 163; Rep. 243; McLean v. Arkansas, 211 U. Looker v. Maynard, 179 U. S. 46, 45 L. S. 539, 53 L. ed. 315, 29 Sup. Ct. Rep. ed. 79, 21 Sup. Ct. Rep. 21; McGowan 206; German Alliance Ins. Co. v. Lewis, y: McDonald, 111 Cal. 57, 52 Am. St. 233 U. S. 389, 58 L. ed. 1011, L.R.A. Rep. 149, 43 Pac. 418; Smathers v. 1915C, 1189, 34 Sup. Ct. Rep. 612: State Western Carolina Bank, '135 N. C. 410, ex rel. Turner v. United States Fidelity 47 S. E. 893; West Wisconsin R. Co. v. & G. Co. 96 Ohio St. 250, 117 N. E. 232: Trempealeau County, 35 Wis.

257; Hunter v. Colfax Consol. Coal Co. 175 Gardner v. Hope Ins. Co. 9 R. I. 194, Iowa, 245, L.R.A.1917D, 15, 154 N. W. 11 Am. Rep. 238; Barnes v. Arnold, 45 1037, 157 N. W. 145, Ann. Cas. 1917E, App. Div. 314, 61 N. Y. Supp. 85, af803, 11 N. C. C. A. 886; New York, c.tirmed in 169 N. Y. 611, 62 N. E. 1093; & H. R. R. Co. v. Williams, 199 N. Y. People v. Hawley, 3 Mich. 330; Phila108, 35 L.R.A.(N.S.) 519, 139 Am. St. delphia, B. & W. R. Co. v. Schubert, Rep. 850, 92 N. E. 404; Second Em-224 U. S. 603, 56 L. ed. 911, 32 Sup. Ct. ployers' Liability Cases (Mondou v. Rep. 589, 1 N. C. C. A. 892; Sturges v. New York, N. H. & H. R. Co.) 223 U. S. Crowninshield, 4 Wheat. 122, 4 L. ed. 1, 56 L. ed. 327, 38 L.R.A.(N.S.) 44, 32 529; Hunt v. Iunt, 131 U. S. clxv. and Sup. Ct. Rep. 169, 1 N. C. C. A. 875; 24 L. ed. 1109; Northern Indiana & S. Mackin v. Detroit-Timkin Axle Co. 187 M. Teleph. Teleg. & Cable Co. v. People's Mich. 8, 153 N. W. 49.

Mut. Teleph. Co. 187 Ind. 496, P.U.R. The contracts referred to in the pe- 1918D, 548, 119 N. E. 212. tition and cross petition herein were made subject to the right of the legis- Mr. Timothy S. Hogan also argued the

THORNTON V. DUFFY.

363-366

cause and filed a brief for defendants 1913, and comprised in $$ 1465-41 A to in error:

1465-106, General Code of Ohio, that he The authority to pay workmen's com- was of sufficient financial ability to renpensation directly is a license. der certain the payment of compensation

Reetz v. Michigan, 188 U. S. 505, 47 to injured employees, the benefits proL. ed. 563, 23 Sup. Ct. Rep. 390; Sim- vided by that act. He, on the day of mons v. State, 12 Mo. 268, 49 Am. Dec. January, 1914, elected to accept the act 131.

and proceed under it, has since complied The police power of the state cannot with its provisions, has abided by the be bartered away.

rules of the commission and all that is Louisville & N. R. Co. v. Mottley, 219 required of him by the act. U. S. 467, 55 L. ed. 297, 34 L.R.A.(N.S.) January, 1914, he made a written con671, 31 Sup. Ct. Rep. 265; Fitzgerald v. tract with the Ætna Insurance Company Grand Trunk R. Co. 63 Vt. 169, 13 of Hartford, Connecticut, a duly licensed L.R.A. 70, 3 Inters. Com. Rep. 633, 22 company, wherein that company agreed Atl. 76; Boyd v. Alabama, 94 U. S. 645, to pay to his injured employees the com24 L. ed. 302; Boston Beer Co. v. pensations required by the act of the Massachusetts, 97 U. S. 25, 24 L. ed. assembly for injuries or upon death, and 989; Stone v. Mississippi, 101 U. S. 814, agreed to indemnify him against the 25 L. ed. 1079; Butchers' Union S. H. liabilities and requirements of the act. & L. S. L. Co. v. Crescent City L. S. L. December 1, 1917, the commission & S. H. Co. 111 U. S. 746, 28 L. ed. 585, adopted a resolution which recited the 4 Sup. Ct. Rep. 652; Atkinson v. Ritchie, act of the assembly of the state of Feb10 East, 530, 103 Eng. Reprint, 877, 10 ruary 16, 1917, amending § 1465–101, Revised Rep. 372; People ex rel. New General Code of Ohio, and an act of the York Electric Lines Co. v. Squire, 107 general assembly passed [365] March N. Y. 606, 1 Am. St. Rep. 893, 14 N. E. 20, 1917, amending § 1465-69, General 820; Douglas v. Kentucky, 168 U. s. Code of the state, and an act passed 488, 42 L. ed. 553, 18 Sup. Ct. Rep. 199; March 21, 1917, and resolved and deChicago, B. & Q. R. Co. v. Nebraska, clared that no employers should be 170 U. S. 58, 42 L. ed. 948, 18 Sup. Ct. permitted to pay or furnish directRep. 513; Northern P. R. Čo. v. Minne- ly to injured employees, or the desota, 208_U. S. 583, 52 L. ed. 630, 28 pendents of killed employees, the comSup. Ct. Rep. 341.

pensation and benefits provided for

in $8 1465-41 A to 1465–106, General Mr. Justice McKenna delivered the Code of Ohio, if such employers, by opinion of the court:

contract or otherwise, shall provide for
This suit was brought by the plaintiff the insurance of the payment by them of
in error Thornton against defendants in such compensation and benefits, or shall
error, hereinafter called defendants, | indemnify themselves against loss sus-
(364) composing the Industrial Com-i tained by the direct payment thereof.
mission of Ohio. The Cleveland Stamp- The commission revoked its previous
ing & Tool Company filed an answer findings and authorizations, the revoca-
and cross petition. From a judgmenttion to stand as of January 10, 1918,
sustaining demurrers to the petition and directed notices of the revocation
of Thornton, and to the answer and and the resolution of the commission to
cross petition of the Cleveland Stamp be given to all employers, including
ing & Tool Company, there was Thornton, and these notices will be sent
appeal to the court of appeals, and unless restrained.
thence by proceeding in error to the The resolution of the commission, the
supreme court of the state, by which revocation of its previous action, and the
court the judgment was affirmed. These notices which it threatens to send, are
writs of error are prosecuted by Thorn-based upon the sole ground that it is its
ton and the Cleveland Company.

duty so to do under the laws of the state,
Thornton's petition and the pleadings indicated above.
of the Cleveland Company are substan- The contract of Thornton with the
tially the same.

We
use,
for conven-

Ætna Company is a valid, subsisting con-
ience, Thornton's petition, and state its tract, and he has a right to continue it
allegations narratively as follows: He until it be canceled, and that the send-
is a manufacturer at Cleveland, Ohio, ing of the notices as above stated, and
employing more than forty men. The the revocation of the findings of fact
Industrial Commission determined, as that the commission had made, and its
required by the act of the general assem- refusal to certify to Thornton its find-
bly the state, passed February 26,lings of fact, as provided for in § 1465–
65 L. ed.

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69, will cause him irreparable injury the 14th Amendment of the Constitution and damage, for which he has no ade of the United States. New York C. R. quate remedy at law. Further, that Co. v. White, 243 U. S. 188, 61 L. ed. there are more than 675 employers sit- 667, L.R.A.1917D, 1, 37 Sup. Ct. Rep. uated as Thornton is, and that, there- 247, Ann. Cas. 1917D, 629, 13 N. C. C. fore, the questions involved are of com- A. 913; Mountain Timber Co. v. Washmon and general interest, and as it is ington, 243 U. S. 219, 61 L. ed. 685, 37 impractical to bring them all into court, Sup. Ct. Rep. 260, Ann. Cas. 1917D, he sues for the benefit of all.

642, 13 N. Č. C. A. 927. (2) (367) The laws invoked by the commission The law that was passed provided do not justify its action, and if it be de- that every employer (there were extermined that they do, then they, and ceptions not necessary to mention) in the acts of the commission under them, the month of January, 1914, and semiare in contravention of the 14th Amend- annually thereafter, should pay into ment of the Constitution [366] of the the state insurance fund the amount United States, and of article 1, § 10, of premium determined and fixed by of that Constitution, and also of the the state liability board of awards Constitution of the state of Ohio. for the particular employment or OC

An injunction, temporary and per- cupation of the employer. It was, howmanent, against the action of the com- ever, also provided (we quote from mission, was prayed, and a temporary the opinion of the supreme court) “that restraining order granted, but it was certain employers under certain condisubsequently dissolved, and, as we have tions might elect to pay individually, or said, a demurrer was sustained to the pe- from a benefit fund, department, or assotition, and judgment entered dismissing ciation, compensation to workmen and the suit. It, as we have also said, was their dependents for death or injuries affirmed by the supreme court of the received in the course of employment.” state.

[99 Ohio St. 126, 124 N. E. 51.) This The various acts of legislation of the was an alternative granted, and its constate were sustained by the courts of the ditions were fulfilled, it was contended, state, and hence their validity under the and that upon the faith of the fulfilment Constitution of the state is removed of it, and in indemnity against continfrom the controversy, and our inquiry is gencies, plaintiff entered into a contract confined to the effect upon them of the of insurance with the Ætna Company. Constitution of the United States. It was further contended that the alter

In support of the contention that the native and the insurance against its reConstitution of the United States makes quirements became property, and inviothe legislation and the action under itlable,-became contracts, with immunity illegal, it is said that insurance against from impairment. To the contention the loss is the right of everybody, and spe- supreme court replied that the altercifically it is the right of employers to native to contribution to the state fund, indemnify themselves against their liabil- of dealing with the employees directly, ity to employees, and that the right is so was a privilege that need not have been fixed and inherent as to be an attribute granted, and that, therefore, to effect the of liberty removed from the interference purpose of the Constitution and law, of the state.

could be withdrawn; that the right to The provisions of the legislation are withdraw the privilege depended not necessary elements in the consideration merely upon the police power of the of the contention: (1) The Constitution state, “but rather directly upon the conof Ohio authorizes Workmen's Compen- stitutional grant of power;" and that, sation Laws. Explicitly it provides for besides, the right was reserved in that the passage of laws establishing a state provision of § 22 of the original act fund to be created by compulsory contri- which gave to the commission power to butions thereto by employers, the fund" at any time change or modify its findto be administered by the state. Things of fact. if in its judgment constitutionality of a law passed under such action is necessary or desirable to that authorization was sustained by this secure or assure a strict compliance with court in Jeffrey Mfg. Co. v. Blagg, 235 all of the provisions of the law. : .." U. S. 571, 59 L. ed. 364, 35 Sup. Ct. And it was said that the experience of Rep. 167, 7 N. C. C. A. 570, against the four years demonstrated the necessity or charge that its classifications were arbi- desirability of a change, and that, theretrary and unreasonable. And Work- fore, it was made. men's Compensation Laws of other [368] The meaning thus ascribed to states have been declared inoffensive to 'g 22 we must accept. It expressed a

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continuing condition upon the conces- first steps of a policy make it imsion to employers to deal directly with mutable is to assert that imperfections their employees, and the Industrial Com- and errors in legislation become constimission, by the power reserved, could tutional rights. This is a narrow conterminate the concession at any time. ception of sovereignty. It is, however,

There was, besides, subsequent and not new, and we have heretofore been inempowering legislation in the amend- voked to pronounce judgment upon it. ment of March 20, 1917, as the supreme Complying, we said that an exercise of court pointed out. That act specifically public policy cannot be resisted because limits the privilege of electing between of conduct or contracts done or made directly dealing with employees and con- upon the faith of former exercises of it, tribution to the state fund to those upon the ground that its later exercises employers “who do not desire to insure deprive of property or invalidate those the payment thereof or indemnify them- contracts. Louisville & N. R. Co. v. selves against loss sustained by direct Mottley, 219 U. S. 467, 55 L. ed. 297, 34 payment thereof." The court hence de- L.R.A.(N.S.) 671, 31 Sup. Ct. Rep. 265. cided that it became the duty of the com- We are not disposed to extend the dismission to change or modify its findings.cussion. Indeed, we think the case is in And it was also decided that the act was narrow compass. We are not called not only clearly within the power of the upon to controvert the right to insure state, but was "in furtherance of the against contingent losses or liabilities, or purpose and intention of the Constitu- to minimize the value of insurance to tion and the law, to create and main business activities and enterprises, or tain one insurance fund, to be admin- discuss the general power or want of istered by the state."

power of the state over it. We are only We repeat, we must accept the decis called upon to consider its relation to sion of the court as the declaration of and possible effect upon the policy of a the legislation and the requirement of workmen's compensation law, and we the Constitution of the state, as much a can readily see that it may be, as it is part of both as if expressed in them said the experience of Ohio demonstrat(Douglass v. Pike County, 101 U. S. 677, ed, inimical to that policy to permit the 25 L. ed. 968), and we are unable to erection of an interest or a power that yield to the contention that the legisla- may be exerted against it or its subsidtion or the requirement transcends the iary provisions. This was the view of power of the state, or in any way vio- the supreme court of the state, and by it lates the Constitution of the United the court justified the power conferred States. The law expressed the constitu- upon and exercised by the commission. tional and legislative policy of the state See Mountain Timber Co. v. Washingto be that the compensation to workmen ton, supra. for injuries received in their employ- Judgment affirmed. ment was a matter of public concern, and should not be left to the individual [370] The CHIEF JUSTICE, conemployer or employee, or be dependent curring: upon or influenced by the hazards of To compel an employer to insure his controversy or litigation, or inequality employee against loss from injury susof conditions. There was an attempt at tained in the course of the employment the accommodation of the new policy to without reference to the negligence of old conditions in the concession to em- the employee, and at the same time to plovers to deal directly with their em- prohibit the employer from insuring plovees, but there

precaution himself against the burden thus imposed, against failure in the [369] provision it seems to me, if originally considered, of $ 22, giving discretion to the com- would be a typical illustration of the mission to withdraw the concession. taking of property without due process, After a few years' experience, that and a violation of the equal protection discretion

turned into duty, of the law. and by the amendment of March 20, But, in view of the decision in Moun1917, the concession was taken away tain Timber Co. v. Washington, 243 U. from those employers who indemnified S. 219, 61 L. ed. 685, 37 Sup. Ct. Rep. themselves by insurance. This was 260, Ann. Cas. 1917D, 642, 13 C. C. C. considered necessary to execute the A. 927, sustaining the constitutionality policy of the state, and we are un- of a law of the state of Washington able to yield to the contention that which necessarily excluded the possibilproperty rights or contract rights hadity of the insurance by the employer of accrued against it. To assert that the the burden in favor of his employees,

Was

was

a

same

error.

v.

which the statute in that case imposed, I charges in addition to what was dedo not think I am at liberty to consider manded and paid when the service was the subject as an original question, but rendered. Dismissed for want of jurisam constrained to accept and apply the diction. ruling in that case made, and for that See

case below in supreme reason I concur in the judgment now court, 40 N. D. 69, 12 A.L.R. 744, 168 N. announced.

W. 684.

The facts are stated in the opinion. Mr. Justice McReynolds dissents. Mr. John L. Erdall argued the cause,

and, with Messrs. A. H. Bright and H.

B. Dike, filed a brief for plaintiff in MINNEAPOLIS, ST. PAUL, & SAULT

STE. MARIE RAILWAY COMPANY, Messrs. Andrew Miller and Alfred Piff, in Err.,

Zuger argued the cause, and, with Mr.

B. F. Tillotson, filed a brief for deWASHBURN LIGNITE COAL COMPANY. fendant in error. (See S. C. Reporter's ed. 370–375.)

Mr. Justice Van Devanter delivered Error to state court - Federal question

the opinion of the court: - decision on non-Federal grounds.

This was an action by a railroad comA decision of the highest court of a pany against a shipper, for whom it had state which rests upon grounds independ carried many carloads of coal between ent of the only Federal question involved points in the state of North Dakota, to that would serve as the basis of a writ of recover for that service a compensation error from the Federal Supreme Court, and in addition to what was demanded and which appeared to the state court to prepaid when the service clude any recovery, is not reviewable in the Judgment went against the carrier in

was rendered. Federal Supreme Court on writ of error, where such independent grounds are broad the court of first instance, and again in enough to sustain the judgment, and, if not the supreme court of the state (40 N. D. well taken, are not without substantial 69, 12 A.L.R. 744, 168 N. W. 684); and support, and, while possibly involving Fed. this writ of error was sued out on the eral questions, are not such as, since the theory that the judgment upheld and Act of September 6, 1916, will support such gave effect to a local rate statute which a writ of error. (For other cases, see Appeal and Error, 1465- the carrier was contending was repug1528, in Digest Sup. Ct. 1908.)

nant to the due process of law clause of

the 14th Amendment. If this theory is [No. 55.)

not right, the writ of error must be disArgued January 29, 1920. Decided Decem-See $ 237, Judicial Code, as amended

missed, for it is without other support. ber 20, 1920.

September 6, 1916, chap. 448, 39 Stat. INTERROR to the District Court for at L 726, Comp. Stat. $ 1214. the Sixth

To show what was involved and decidState of North Dakota to review an ed, it is necessary to refer with some order affirmed by the Supreme Court of particularity to a prior litigation out of the state, which sustained a demurrer which the present case arose. to the complaint in an action by a car- In 1907 the state of North Dakota, by rier against a shipper to recover freight | an act of its legislature, prescribed a

Note.—On the general subject of writs, raised and decided in a state court in of error from the United States Su- order to make a case for a writ of error preme Court to state courts-see notes from the Supreme Court of the United to Martin v. Hunter, 4 L. ed. U. S. 97; States-see note to Mutual L. Ins. Co. Hamblin v. Western Land Co. 37 L. ed. v. McGrew, 63 L.R.A. 33. U. S. 267; Re Buchanan, 39 L. ed. U. S.

On what the record must show re884, and Kipley v. Illinois, 42 L. ed. specting the presentation and decision U. S. 998.

On what adjudications of state courts of a Federal question in order to confer can be brought up for review in the jurisdiction on the Supreme Court of Supreme Court of the United States by the United States of a writ of error to

Los writ of error to those courts-see note a state court--see note to Hooker v. to Apex Transp. Co. v. Garbade, 62 Angeles, 63 L.R.A. 471. L.R.A. 513.

And see note to this case in the state On how and when questions must be court as reported in 12 A.L.R. 758.

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