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Procedure.

Expenditures.

Annual reports.

Suits by mission.

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Warrants disbursements.

other cases on such docket. The attorney general, without extra compensation, or other counsel, if the commission see fit to employ the same, shall represent the commission on such appeal. The supreme court, on such appeal, shall determine the right of the claimant and certify its decision to the commission, and, if it determines the right in his favor, the commission shall fix his compensation within the limits and under the rules prescribed in this act. The costs of such proceedings, including a reasonable attorney's fee, not exceeding one hundred dollars, to the claimant's attorney, to be fixed by the court, shall be taxed against the unsuccessful party. No fees, expenses or costs shall be paid out of any compensation awarded.

SEC. 44. Such commission shall not be bound by the usual common law or statutory rules of evidence, or by any technical or formal rules of procedure, other than herein provided, but may make the investigation in such manner as in its judgment is best calculated to ascertain the substantial rights of the parties and to carry out justly and liberally the spirit of this act.

SEC. 45. The commission may make necessary expenditures to obtain statistical and other information to establish the classes provided for in section eighteen.

SEC. 46. Annually on or about the fifteenth day of September in each year, such commission, under the oath of at least two of its members, shall make a report as of the thirtieth day of June, to the governor, which shall include a statement of the number of awards made by it, a general statement of the causes of the accidents leading to the injuries for which the awards were made; a detailed statement of all disbursements, and the condition of its fund, together with any other matters which such commission deems it proper to call to the attention of the governor, including any recommendations it may have to make, and the commission whenever required by the governor shall report to him as to any designated subject or matter, and furnish such information as may be required.

SEC. 47. The commission may sue in the circuit court of Kanawha county in its own name for any premiums owing from any employer for any part of the period intervening between notice given by such employer as hereinbefore provided of his election to pay into the fund the premiums provided by this act, and notice similarly given of the election of such employer to discontinue the payment of such premium, and such employer shall be liable in any action so brought for such premium and interest thereon with costs."

for SEC. 48. The auditor shall issue his warrant for any disbursement hereunder only when approved in writing by the chairman or acting chairman and secretary of the commission, and the chairman or acting chairman and secretary shall not issue any such approval unless authorized by the commission by an order entered of record. Whenever it shall appear that the chairman will be absent or unable to act at sessions of the commission for one week or more, another member of the commission may be designated by the commission as acting chairman during the absence or inability to act of the chairman, and during such period shall have all the duties and powers of the chairman.

Failure to report.

Fraudulent compensation.

SEC. 49. Any person, firm or corporation, knowingly failing to make any report or perform any duty required by the commission within the time specified, shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not more than twenty-five hundred dollars. Any person, or firm, or the officer of any corporation, who knowingly makes a false report or statement under oath, or affidavit respecting any information required by the commission, or who shall knowingly testify falsely in any proceeding before the commission, shall be deemed guilty of perjury and upon conviction thereof shall be punished as provided by law.

SEC. 50. Any person who shall knowingly secure or attempt to secure larger compensation, or compensation for a longer term than he is entitled to, from said workman's compensation fund, or knowingly secure or attempt to secure compensation from said fund when he is not entitled to any, shall be deemed guilty of a misdemeanor and upon convic tion thereof shall be fined not exceeding five hundred dollars or impris

oned not exceeding twelve months, or both, in the discretion of the court, and shall, from and after such conviction, cease to receive any compensation from such fund.

SEC. 51. Whenever and as often as there shall be in the hands of the treasurer any sum belonging to the workmen's compensation fund not likely, in the opinion of the commission, to be required for immediate use, it shall be the duty of the board of public works, when called upon by the commission, to loan such sum or to invest the same in interestbearing securities, and when and as it may become necessary or expedient to use the moneys so loaned or invested the board of public works shall, when called upon by the commission, collect or sell or otherwise realize upon any such loan or investment, and any interest accruing upon any such loan or investment, as well as any interest received upon the deposit of moneys belonging to said fund, shall be credited to said fund.

SEC. 52. The provisions of this act shall apply to employers and employees engaged in intrastate and also in interstate or foreign commerce for whom a rule of liability or method of compensation has been or may be established by the Congress of the United States only to the extent that their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign commerce, except that any such employer and any of his employees working only in this State may with the approval of the commission, and so far as not forbidden by any act of Congress, voluntarily accept the provisions of this act by filing written acceptances with the commission, and such acceptances, when filed with and approved by the commission, shall subject the acceptors irrevocably to the provisions of the act to all intents and purposes as if they had been originally included in its terms. Payments of premium shall be on the basis of the pay roll of the employees who accept as aforesaid.

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Persons outside

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SEC. 53. If any employer shall be adjudicated to be outside the lawful scope of this act, the act shall not apply to him or his employee; or if any employee shall be adjudicated to be outside the lawful scope of this act, because of remoteness of his work from the hazard of his employer's work, any such adjudication shall not impair the validity of this act in other respects, and in every such case an accounting in accordance with the justice of the case shall be had of moneys received. If the provisions of this act for the creation of the fund, or the provisions of this act making the compensation to the employee provided in it exclusive of any other remedy on the part of the employee shall be held invalid, the entire act shall be thereby invalidated and an accounting Invalidity according to the justice of the case shall be had of money received. In act. other respects an adjudication of invalidity of any part of this act shall not affect the validity of the act as a whole or part thereof.

SEC. 54. If deemed best by it the commission may insure in any Reinsurance. liability insurance company, or companies, authorized to do business in West Virginia, all or any part or class of, or one or more individual risks of, the liabilities of the workmen's compensation fund for any year or series of years, and apply so much as may be necessary of the premiums collected for such year or years toward the payment of the premiums for such insurance.

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SEC. 55. If the provisions of this act relating to compensation for injuries to, or death of workmen shall be repealed or adjudged invalid validity of act. or unconstitutional, the period intervening between the occurrence of any injury or death and such appeal, or the final adjudication of invalidity or unconstitutionality, shall not be computed as a part of the time limited by law for the commencement of any action relating to such injuries or death, but the amount of any compensation which may have been paid on account of such injury or death, shall be deducted from any judgment for damages recovered on account of such injury or death.

SEC. 56. All acts and parts of acts in conflict with this act are hereby Repealed. repealed.

Approved February 22, 1913.

Commission

created.

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cations.

Employees.

Expenses.

Office.

Procedure.

[The pertinent portions of the act creating a public service commission, referred to in section 1 above, are as follows:]

CHAPTER 9.-Public service commission—Administration of workmen's compensation law.

SECTION 1. A commission is hereby created by the name of Public Service Commission, which shall be composed of four members, who shall be appointed by the governor, by and with the advice and consent of the senate. The first commissioners shall be appointed in the month of May, 1913, and shall continue in office for the term of two, four, six, and eight years, respectively, from the first day of May, 1913, the term of each to be designated by the governor; but their successors shall be appointed for the term of eight years each, except that any person appointed to fill a vacancy shall serve only for the unexpired term of the commissioner whom he succeeds. Any commissioner may be removed by the governor for incompetency, neglect of duty, gross immorality or malfeasance in office, after giving him notice and a copy of the charges and the right to be heard in an investigation of the truth thereof. A record of the proceedings, including the evidence, shall be kept. Not more than two shall belong to the same political party. One member shall be a lawyer of not less than ten years actual experience at the bar. The commission shall organize by electing one of its members chairman. The concurring judgment of three of the commissioners shall be deemed the action of the commission. The attorney general shall perform all legal services required by the commission under the provisions of this act.

No person while in the employ of or holding any official relation to any public service corporation subject to the provision of this act, or holding any stock or bonds thereof, or who is pecuniarily interested therein, shall enter upon the duties of or hold said office. Nor shall any of said commissioners be a candidate for or hold any public office, or be a member of any political committee while acting as such commissioner; nor shall any commissioner or employee of said commission receive any pass, free transportation or other thing of value, either directly or indirectly, from any person, firm or corporation subject to the provisions of this act; and in case any of said commissioners shall become a candidate for any other public office, or shall become a member of any political committee, his office as commissioner shall be ipso facto vacated.

The commission is hereby empowered and directed to employ a secretary, who shall hold that position at the pleasure of the commission, and such other employees as may be necessary to carry out the purpose of this act. The secretary and all other employees shall perform such duties as may be prescribed by the commission, not inconsistent with law. The compensation of the secretary and all other employees shall be fixed by the commission at such sum as their services are reasonably worth. The actual expenses necessarily incurred by the commissioners and employees while absent from the general office of the commission and engaged about the business of the commission, shall be paid as other claims against the State are paid, out of any appropriation for such purpose, upon an itemized statement thereof rendered monthly by the secretary, under his oath, and approved by the commission.

Each of the commissioners shall receive a salary of six thousand dollars per annum, to be paid monthly. The general office shall be kept at the capitol of the State, and kept open each working day between the hours of nine o'clock a. m., and five o'clock p. m., and in charge of the secretary or some other competent person. But hearings and the taking of evidence may be had at such times and places and in each particular case as the commission may designate.

SEC. 2. The commission shall prescribe the rules of procedure and for taking evidence in all matters that may come before it, and enter such final orders as may be just and lawful.

In the investigations, preparations and hearings of cases, the commission may not be bound by the strict technical rules of pleading and evidence, but in that behalf it may exercise such discretion as will

facilitate their efforts to understand and learn all the facts bearing upon the right and justice of the matters before them.

SEC. 3.

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The commission shall also perform such duties as may be Duties as imposed upon it by law in connection with any workmen's compensa- pensation. tion law or fund which may be passed or established.

Approved February 22, 1913.

WISCONSIN.

ACTS OF 1913.

CHAPTER 599.-Liability of employers for injuries-Workmen's compensation.

SECTION 1. Sections 2394-1 to 2394-31, inclusive, of the statutes are amended to read:

Defenses

Section 2394-1. 1. In any action to recover damages for a personal injury sustained within this State by an employee while engaged in abolished. the line of his duty as such, or for death resulting from personal injury so sustained, in which recovery is sought upon the ground of want of ordinary care of the employer, or of any officer, agent, or servant of the employer, it shall not be a defense

(1) That the employee either expressly or impliedly assumed the risk of the hazard complained of.

(2) When such employer has at the time of the accident in a common employment four or more employees, that the injury or death was caused in whole or in part by the want of ordinary care of a fellow

servant.

(3) When such employer has at the time of the accident, in a common employment four or more employees, that the injury or death was caused in whole or in part by the want of ordinary care of the injured employee, where such want of ordinary care was not willful.

2. Any employer who has elected to pay compensation as hereinafter provided shall not be subject to the provisions of this section

2394-1.

SEC. 2394-2. No contract, rule, or regulation, shall exempt the employer from any of the provisions of section 2394-1.

Who exempt.

Waivers.

SEC. 2394-3. Liability for the compensation hereinafter provided Compensation for, in lieu of any other liability whatsoever, shall exist against an em- payable, when. ployer for any personal injury accidentally sustained by his employee, and for his death, in those cases where the following conditions of compensation concur:

(1) Where, at the time of the accident, both the employer and employee are subject to the provisions of sections 2394-3 to 2394-31, inclusive.

(2) Where, at the time of the accident, the employee is performing service growing out of and incidental to his employment.

Every employee going to and from his employment in the ordinary and usual way, while on the premises of his employer, shall be deemed to be performing service growing out of and incidental to his employ

ment.

(3) Where the injury is proximately caused by accident, and is not intentionally self-inflicted.

And where such conditions of compensation exist for any personal injury or death, the right to the recovery of such compensation pursuant to the provisions of sections 2394-3 to 2394-31, inclusive, and acts amendatory thereof, shall be the exclusive remedy against the employer for such injury or death; in all other cases, the liability of the employer shall be the same as if this and the succeeding sections of sections 2394-3 to 2394-31, inclusive, had not been passed, but shall be subject to the provisions of sections 2394-1 to 2394-2.

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Contractors' employees.

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SEC. 2394-4. The following shall constitute employers subject to the provisions of sections 2394-3 to 2394-31, inelusive, within the meaning of section 2394-3:

(1) The State, and each county, city, town, village, and school district therein.

(2) Every person, firm, and private corporation (including any public service corporation), who has any person in service under any contract of hire, express or implied, oral or written, and who, at or prior to the time of the accident to the employee for which compensation under sections 2394-3 to 2394-31, inclusive, may be claimed, shall, in the manner provided in section 2394-5, have elected to become subject to the provisions of sections 2394-3 to 2394-31, inclusive, and who shall not, prior to such accident, have effected a withdrawal of such election, in the manner provided in subsection 1 of section 2394-5.

SEC. 2394-5. 1. Such election on the part of the employer shall be made by filing with the industrial commission, a written statement to the effect that he accepts the provisions of sections 2394-3 to 2394–31, inclusive, the filing of which statement shall operate, within the meaning of section 2394-4, to subject such employer to the provisions of sections 2394-3 to 2394-31, inclusive, for the term of one year from the date of filing such statement, and thereafter, without further act on his part, for successive terms of one year each, unless such employer shall, at least sixty days prior to the expiration of such first or any succeeding year, file in the office of said commission a notice in writing to the effect that he desires to withdraw his election to be subject to the provisions of sections 2394-3 to 2394-31, inclusive.

2. On and after September 1, 1913, every employer of four or more employees in a common employment shall be deemed to have elected to accept the provisions of sections 2394-3 to 2394-31, inclusive, unless prior to that date such employer shall have filed with the industrial commission a notice in writing to the effect that he elects not to accept the provisions hereof: Provided, That any employer commencing business subsequent to September 1, 1913, may make his election not to become subject to sections 2394-3 to 2394-31, inclusive, at any time prior to becoming an employer of four or more employees in a common employment. Such employer may withdraw from the provisions of sections 2394-3 to 2394–31, inclusive, at the expiration of one year or at the expiration of any succeeding year in the manner provided in subsection 1 of section 2394-5.

SEC. 2394-6. An employer subject to the provisions of sections 2394-3 to 2394-31, inclusive, shall be liable for compensation to an employee of a contractor or subcontractor under him who is not subject to sections 2394-3 to 2394-31, inclusive, and has not complied with the conditions of subsection 2 of section 2394-24 in any case where such employer would have been liable for compensation if such employee had been working directly for such employer. The contractor or subcontractor shall also be liable for such compensation, but the employee shall not recover compensation for the same injury from more than one party. The employer who shall become liable for and pay such compensation may recover the same from such contractor or subcontractor for whom the employee was working at the time of the accident.

Section 2394-6 shall be in force as to all contracts made subsequent to August 31, 1913.

SEC. 2394-7 (as amended by Chapter 707, Acts of 1913). The term "employee" as used in sections 2394-1 to 2394-31, inclusive, shall be construed to mean

(1) Every person in the service of the State, or of any county, city, town, village, or school district therein under any appointment, or contract of hire, express or implied, oral or written, except any official of the State, or of any county, city, town, village, or school district therein. The State and any county or municipality may require a bond from a contractor to protect the State, county or municipality against compensation to employees of such contractor or employees of a subcontractor under him.

Nothing herein contained shall be construed to prevent municipalities from paying policemen, firemen and other employees full salaries during disability, nor to interfere in any manner with any pension

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