Shade v. The Ash Grove Lime and Portland Cement Company

• Citation: 93 Kan. 257,144 P. 249
• Decision Date: 14 November 1914
• Docket Number: 18,793
• Parties: FRANK D. SHADE, Appellant, v. THE ASH GROVE LIME AND PORTLAND CEMENT COMPANY, Appellee
• Court: United States State Supreme Court of Kansas

144 P. 249

93 Kan. 257

FRANK D. SHADE, Appellant, v. THE ASH GROVE LIME AND PORTLAND CEMENT COMPANY, Appellee

No. 18,793

Supreme Court of Kansas

November 14, 1914

Decided July, 1914.

Appeal from Neosho district court; JAMES W. FINLEY, judge. Opinion on rehearing filed November 14, 1914. Reversal sustained. (For original opinion see 92 Kan. 146, 139 P. 1193.)

Judgment reversal adhered.

SYLLABUS

SYLLABUS BY THE COURT.

"WORKMEN'S COMPENSATION ACT"--Constitutional and Valid. Chapter 218 of the Laws of 1911, as amended by chapter 216 of the Laws of 1913, does not violate section 18 of the bill of rights guaranteeing remedies by due course of law, nor section 16 of article 2 of the constitution which provides that no bill shall contain more than one subject, nor the provisions of the 14th amendment to the federal constitution relating to due process and equal protection of the laws.

T. F. Morrison, of Chanute, and R. J. W. Bloom, of Columbus, for the appellant.

H. P. Farrelly, and T. R. Evans, both of Chanute, for the appellee.

John S. Dawson, attorney-general, Robert Stone, George T. McDermott, both of Topeka, Adrian F. Sherman, and Thad B. Landon, both of Kansas City, Mo., as amici curiae.

OPINION OPINION ON REHEARING.

BENSON, J.

The first opinion in this case is reported in Shade v. Cement Co., 92 Kan. 146, 139 P. 1193, construing provisions of the workmen's compensation act. (Laws 1911, ch. 218, as amended by Laws 1913, ch. 216.) A rehearing having been allowed, elaborate briefs have been filed by the parties and others amici curiae. Other cases interpreting the same statute in which opinions are now filed were argued at the same time. (McRoberts v. Zinc Co., post; Gorrell v. Battelle, post.)

It was held in the former opinion that where the employer and employee are both under the compensation act, the remedy afforded by that statute is exclusive. It is argued that this conclusion is unsound, and that it should be held that the employee may still resort to the factory act for relief. Upon a reexamination of the question the court remains satisfied with the views stated in the former decision, for the reasons stated in that opinion, and in the opinion in McRoberts v. Zinc Co., supra. The same result was reached in Peet v. Mills, 76 Wash. 437, 136 P. 685. The underlying principle is also clearly stated in 26 A. & E. Encycl. of L. 621.

It should also be observed that an employee is not deprived of the right to the benefit of the factory act nor of common-law remedies without his consent. They remain open to his election if made before the injury, by filing a declaration "that he elects not to accept thereunder"--that is, under the provisions of the compensation act. (Laws 1913, ch. 216, § 8.)

The constitutional safeguards which it is argued are violated by this statute are, first, that part of the 14th amendment to the federal constitution, which declares, "Nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws"; second, section 18 of the bill of rights of the state constitution, which provides that "All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay"; third, section 16 of article 2 of the state constitution, which provides that "No bill shall contain more than one subject, which shall be clearly expressed in its title." It is also argued that the statute deprives the citizen of a right of trial by jury and for that reason is invalid.

The provisions of the federal and state constitutions guaranteeing due process and equal protection of law invoked by the plaintiff are not violated by this statute, as decided in many jurisdictions in opinions so exhaustive of the subject and so convincing in reason that we are content to make brief references to specific objections, and to a few of the principles upon which these objections are based. The act classifies occupations with reference to the nature of the business and number of employees. This feature is strenuously objected to as a violation of the constitutional safeguards referred to. Similar provisions are found in like statutes of other states and have generally been sustained. In the case of Ives v. South Buffalo Ry. Co., 201 N.Y. 271, 94 N.E. 431, 34 L. R. A., n. s., 162, widely commented on and criticized, holding the New York workmen's compensation law unconstitutional in another respect, the classification feature was approved as being within the constitutional limits of legislative power. In Deibeikis v. Link-Belt Co., 261 Ill. 454, 104 N.E. 211, such a classification in the workmen's compensation act of Illinois was held to be perfectly reasonable and valid. Indeed such seems to be the holding wherever under similar statutes this objection has been urged. Apart from the operation of this statute the power to make a reasonable classification of subjects of legislative action has been uniformly sustained in this state. In the Black Powder case, so-called (In re Williams, 79 Kan. 212, 98 P. 777), the statute under consideration attempted to regulate the use of powder in coal mines, and the law was assailed because it did not relate to other mines and quarries, but it was held that when a classification is based on reasonable distinctions, and is not merely arbitrary, the law is not invalid, and the statute was upheld. The same principle has been applied in many other cases in this and other states and is generally recognized and approved.

The objection based upon the supposed deprivation of a right of trial by jury is equally untenable, as determined in many adjudicated cases. The same is true of the arbitration feature and the rules for determining compensation. Without reviewing seriatim all the specific objections made to this statute under the general charge that it violates constitutional safeguards, it is sufficient to say that they have all been met in judicial decisions in other jurisdictions after the most thorough and patient examination. It seems unnecessary, now that the validity of such laws has been so generally maintained, to review the many adjudicated cases, and restate in detail the well-settled principles upon which they are based. Briefly it may be said that the operation of the system of compensation provided by the statute rests upon the free consent of employer and employee, given in the manner...