On July 24, 1911, the Justices sent to the Senate

their response1la in these words:

To the Honorable the Senate of the Commonwealth of

Massachusetts:

We have received the questions, of which a copy with the act referred to therein and the amendment adopted by the Senate, is hereto annexed, and after giving to them such consideration as we have been able to give in the time at our disposal, we respectfully answer them as follows:

The questions submitted to us are important, and the proposed act involves a radical departure in the manner of dealing with actions or claims for damages for personal injuries received by employés in the course of their employment from that which has heretofore prevailed in this commonwealth; but we think that nothing would be gained by an extended discussion and we therefore content ourselves with stating briefly the conclusions to which we have come and our reasons therefor.

The first section of the act (Part I, § 1) provides that "In an action to recover damages for personal injury sustained by an employé in the course of his employment, or for death resulting from personal injury so sustained, it shall not be a defense:

1. That the employé was negligent;

2. That the injury was caused by the negligence of a fellow employé;

3. That the employé had assumed the risk of the injury."

This section deals with actions at common law. We construe clauses 1 and 2 in their reference to negligence as meaning contributory negligence or negligence on the part of a fellow servant which falls short of the serious and wilful misconduct which under Part II, § 2, 1aIn re Opinion of Justices, 209 Mass. 607, 96 N. E. 308.

will deprive an employé of compensation. So construed we think that the section is constitutional. We neither express nor intimate any opinion whether it would be unconstitutional if otherwise construed. The rules of law relating to contributory negligence and assumption of the risk and the effect of negligence by a fellow servant were established by the courts, not by the Constitution, and the Legislature may change them or do away with them altogether as defenses (as it has to some extent in the employer's liability act) as in its wisdom in the exercise of powers intrusted to it by the Constitution it deems will be best for the "good and welfare of this Commonwealth." See Missouri Pacific Railway v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 32 L. ed. 107; Minnesota Iron Co. v. Kline, 199 U. S. 593, 50 L. ed. 322, 26 Sup. Ct. 159. The act expressly provides that it shall not apply to injuries sustained before it takes effect. If, therefore, a right of action which has accrued under existing laws for personal injuries constitutes a vested right or interest, there is nothing in the section which interferes with such rights or interests. The effect of the section is not to authorize the taking of property without due process of law, as the Court of Appeals of New York held was the case with the statute referred to in the preamble to the questions submitted to us, and which in consequence thereof was declared by that court to be unconstitutional. Ives v. South Buffalo Railway, 201 N. Y. 271, 94 N. E. 431. Construing the section as we do and as we think that it should be construed, it seems to us that there is nothing in it which violates any rights secured by the State or Federal Constitutions. We see nothing unconstitutional in providing, as is done in Part I, § 2, that the provisions of § 1 shall not apply to domestic servants and farm laborers; nor in providing, as is done in Part I, § 5, that the employé shall be deemed to have waived his right of action at common law if he shall not have

given notice to his employer as therein provided. The
effect of the provisions referred to is to leave it at the
employé's option whether he will or will not waive his
right of action at common law. See Foster v. Morse,
132 Mass. 354, 42 Am. Rep. 438.

The rest of the act deals mainly with a scheme for
providing, through the instrumentality of a corporation
established for that purpose entitled the Massachusetts
Employés Insurance Association, and the subscription
of employers thereto, for compensation to employés for
personal injuries received by them in the course of their
employment, and not due to serious and wilful miscon-
duct on their part. There is nothing in the act which
compels an employer to become a subscriber to the As-
sociation, or which compels an employé to waive his
right of action at common law and accept the compen-
sation provided for in the act. In this respect the act
differs wholly so far as the employer is concerned from
the New York statute above referred to. By subscrib-
ing to the Association an employer voluntarily agrees
to be bound by the provisions of the act. The same
is true of an employé who does not choose to stand
upon his common law rights. An employer who does
not subscribe to the Association will no longer have the
right in an action by his employé against him at com-
mon law to set up the defense of contributory negligence
or assumption of the risk, or to show that the injury
was caused by the negligence of a fellow servant.
the case of an employé who does not accept the com-
pensation provided for by the act and whose employer
had become a subscriber to the Association, an action
no longer can be maintained for death under the em-
ployer's liability act. But these considerations do not
constitute legal compulsion or a deprivation of funda-
mental rights. We do not deem it necessary to take up
and consider in detail the numerous provisions by which
the right to compensation and the amount thereof and

In

the persons entitled thereto and the course of procedure to be followed and matters relating thereto are to be settled and determined. We assume, however, that the meaning of §§ 4 and 7 of Part III of the proposed act is that the approved agreement or decision therein mentioned is to be enforced by proper proceedings in court, and not by process to be issued by the industrial accident board itself. Taking in account the non-compulsory character of the proposed act, we see nothing in any of these provisions which is not "in conformity with" the fourteenth amendment to the Federal Constitution, or which infringes upon any provision of our own Constitution in regard to the taking of property "without due process of law." It is within the power of the Legislature to provide that no agreement by an employé to waive his rights to compensation under the act shall be valid. See Missouri Pacific Railway v. Mackey, 127 U. S. 205,.32 L. ed. 107, 8 Sup. Ct. 1161; Minnesota Iron Co. v. Kline, 199 U. S. 593, 50 L. ed. 322, 26 Sup. Ct. 159.

In regard to the amendment it is to be observed that no liability insurance company is obliged to insure, and that if it chooses to do so there is nothing unconstitutional in requiring that it and the policyholder shall be governed by the provisions of the act so far as applicable.

It should be noted perhaps in the interest of accuracy that there is no phrase in our Constitution which in terms requires that "property shall not be taken from a citizen without due process of law." The quoted words, which we take from the first question submitted to us, are a paraphrase of what is contained in the Constitution, but are not the language of the Constitution itself.

We have confined ourselves to the questions submitted to us, and we answer both of them in the affirma

Owing to their absence from the commonwealth, the Chief Justice and Mr. Justice Loring have taken no part in the consideration of the questions.

JAMES M. MORTON.

July 24, 1911.

JOHN W. HAMMOND.

HENRY K. BRALEY.

HENRY N. SHELDON.

ARTHUR PRENTICE RUGG.

§ 308. Rules of Industrial Accident Board.-The act provides for the creation of the Industrial Accident Board and invests it with the general supervision over all parties affected by the act and quasi judicial powers. This board under its authority to prescribe rules has promulgated the following rules for the administration of the law.

Rule 1. Manner of giving notice by employer of acceptance of the act.-If personal service is not made of the notices required by sections 20 and 21 of Part IV, chapter 751 of the Acts of 1911, and the amendments thereto, said notices may be given by posting the same at one or more of the principal entrances to the factory, shop or place of business of the employer, and in each room where labor is employed; said notices to be printed or typewritten.

Supplement to Rule 1.-It has been represented to the Industrial Accident Board that it is possible that employés may be engaged for labor away from the office or headquarters of the subscriber, or may be employed in more than one place or office, and that in these cases personal notice is not always possible or practical. To meet this situation the Board has passed the following supplement to Rule No. 1:

Where the same employés are employed in more than one room in a building, or in various places, or where employers are engaged in such business as that