State v. Clausen

• Decision Date: 27 September 1911
• Citation: 117 P. 1101,65 Wash. 156
• Parties: STATE ex rel. DAVIS--SMITH CO. v. CLAUSEN, State Auditor.
• Court: Washington Supreme Court

117 P. 1101

65 Wash. 156

STATE ex rel. DAVIS--SMITH CO. v. CLAUSEN, State Auditor.

Supreme Court of Washington, En Banc.

September 27, 1911

Original proceeding by the State, on the relation of the Davis-Smith Company, against C. W. Clausen, as State Auditor, to compel the issuance of a warrant on the State Treasurer in payment of an obligation incurred by the Industrial Insurance Department. Writ issued.

The industrial insurance law, Laws 1911, c. 74, which undertakes by requiring contributions from employers to an accident or insurance fund, to provide fixed and certain relief for workmen injured in extrahazardous work, and their families and dependents, regardless of questions of fault or negligence, to the exclusion of every other remedy or compensation is constitutional.

W. V Tanner (Harold Preston and Geo. A. Lee, of counsel), for plaintiff.

Denman & Fishburne (Graves, Krizer & Graves, of counsel), for defendant.

FULLERTON, J.

This is an original proceeding in mandamus, brought by the relator to compel the State Auditor to issue a warrant on the State Treasurer in payment of an obligation incurred by the industrial insurance department. The application was in the form required by the statute governing the practice in such cases, and sets forth facts which, on their face, show that the applicant is entitled to the warrant demanded. The auditor demurred generally to the application, and at the hearing his counsel argued that the act purporting to authorize the expenditure for which the warrant was demanded was unconstitutional and void.

It was suggested at the argument that the question of the constitutionality of the act could not be raised by the auditor in this form of proceeding, but to do so is in accord with the practice in this state. In State ex rel Olmstead v. Mudgett, 21 Wash. 99, 57 P. 351, the relator sought by mandamus to compel the county treasurer of Spokane to collect an assessment levied to pay the cost of a street improvement, and, on the demurrer of the treasurer to the application for the writ, we inquired into the constitutionality of the act authorizing the assessment to be made. To the same effect are State ex rel. Port Townsend v. Clausen, 40 Wash. 95, 82 P. 187, and Hindman v Boyd, 42 Wash. 17, 84 P. 609. In the latter case it was acknowledged that the authorities on the question were in conflict; but it was said that the preferable rule was with the cases holding that the question could be thus raised. On principle the ruling seems to be sound. If it be true that an act of the Legislature authorizing the disbursement of public money is unconstitutional, to inquire into it on the objection of an officer having in charge such disbursement may save an expenditure that would be otherwise lost to the state were the court to await the suggestion of the question by some private litigant injuriously affected by the act. There is no merit in the objection that the officer is without interest in the proceeding. He is charged with the duty or conserving the public funds, and consequently must be held to have an interest in any proceeding which directly tends to that end.

The act thought to be unconstitutional by the auditor is the act of the Legislature of March 14, 1911, commonly known as the 'workmen's compensation act.' Laws 1911, p. 345. The act is of too great length to be set forth here in full; but the following epitome of its several provisions will give an understanding of its salient features, and of the questions involved on this hearing:

Section 1 contains a declaration of the policy of the act. It recites that the commonlaw system governing remedies of workmen against employers for injuries received in hazardous employments are inconsistent with modern industrial conditions; that in practice such remedies have proven economically unwise and unfair; that their administration has produced the result that little of the cost thereof to the employer has reached the workmen, and that little, only at a great expense to the public; that the remedy to the individual workman is uncertain, slow, and inadequate; that injuries in such employments formerly occasional have become frequent and inevitable; that the welfare of the state depends upon its industries, and even more upon the welfare of its wageworkers. And it thereupon declares that the state of Washington, exercising its sovereign powers, withdraws all phases of the premises from private controversies and provides sure and certain relief for workmen injured in extrahazardous work, and their families and dependents, regardless of questions of fault, to the exclusion of 'every other remedy, proceeding or compensation, except as otherwise provided in this act.' It thereupon abolishes civil actions and civil causes of action for personal injuries incurred in extrahazardous employments, and the jurisdiction of the courts thereon, except as in the act provided.

Section 2 enumerates what the Legislature deems extrahazardous employments. It is provided, however, that if there be found to be, or if there subsequently arises, any hazardous employments not enumerated, the same shall nevertheless come within the provisions of the act, and the rate of contribution to the accident fund to be exacted from such employments shall be fixed by the department therein created until the Legislature itself shall have acted thereon. The enumeration includes all classes of business and employments in which machinery is employed, whether conducted by corporations or by individuals, and whether they are affected with a public interest or are purely of a private nature.

Section 3 defines certain of the words and terms used in the act. Concerning the word 'workman' is the following: '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 section 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: Provided, however, that if the injury to a workman occurring away from the plant of his employer is due to the negligence or wrong of another not in the same employ, the injured workman, or if death result from the injury, his widow, children, or dependents, as the case may be, shall elect whether to take under this act or seek a remedy against such other, such election to be in advance of any suit under this section; and if he take under this act, the cause of action against such other shall be assigned to the state for the benefit of the accident fund; if the other choice is made, the accident fund shall contribute only the deficiency, if any, between the amount of recovery against such third person actually collected, and the compensation provided or estimated by this act for such case. Any such cause of action assigned to the state may be prosecuted, or compromised by the department, in its discretion. Any compromise by the workman of any such suit, which would leave a deficiency to be made good out of the accident fund, may be made only with the written approval of the department. Any individual employer or any member or officer of any corporate employer who shall be carried upon the pay roll at a salary or wage not less than the average salary or wage named in such pay roll and who shall be injured, shall be entitled to the benefit of this act as and under the same circumstances as and subject to the same obligations as a workman.'

Section 4 contains a schedule of contributions. It recites that, in so much as industry should bear the greater proportion of the burden of the costs of its accidents, each employer shall, prior to January 15th of each year, pay into the state treasury, in accordance with a schedule provided, a sum equal to a percentage of his total pay roll of that year. Then follows a classification of the different industries and the rate per centum each several class shall be required to pay; the amounts varying as the Legislature deemed the risk of injury therefrom varied, and the greater hazard contributing the larger percentage. The fund created is termed the 'accident fund,' and it is provided that it shall be devoted exclusively to the purposes specified in the act. A scheme is provided for replenishing the fund in case an amount collected shall be insufficient to meet the demands upon it. It is also provided: 'If a single establishment or work comprises several occupations listed in this section in different risk classes, the premium shall be computed according to the pay roll of each occupation if clearly separable; otherwise an average rate of premium shall be charged for the entire establishment, taking into consideration the number of employés and the relative hazards. If an employer besides employing workmen in extrahazardous employment shall also employ workmen in employments not extrahazardous the provisions of this act shall apply only to the extrahazardous departments and employments and the workmen employed therein. In computing the pay roll the entire compensation received by every workman employed in extrahazardous employment shall be included, whether it be in form of salary, wage, piecework, overtime, or any allowance in the way of profit-sharing, premium or otherwise, and whether payable in money, board, or otherwise.'

Section 5 contains the compensation schedule. It provides that each workman who shall be injured, whether upon the premises or at the plant, or being in the course of his employment away from the plant of his employer, or his family or dependents in case of the death of the workman, shall receive out of the accident fund compensation in...