Mr. Pillsbury explained that he proposed the Federal compensation bill with the elective feature added out of deference to the opinions of the other two members of the Committee on Jurisdictional Conflicts, who had expressed themselves as favorable to a uniform Federal compensation act.

The other members of the committee objected to the consideration of a Federal workmen's compensation bill at this time upon the ground that such a measure would necessarily be opposed by the legis lative representative and the officers of the Railroad Trainmen and that such opposition would inevitably defeat the measure and generate bitterness of feeling against the State compensation commissions and others concerned with the legislation and might array brotherhood against brotherhood and lead to factional fights within the brotherhoods. No permanent good could result from such action, while much evil would inevitably grow out of it. It probably would prevent the enactment of compensation legislation for many years, by forcing action upon the subject from the outside and without any adequate preparation or understanding of the end sought. The amendment of the Federal Employers' Liability Act, on the other hand, would result in giving to interstate railway employees the right to elect to take advantage of laws already on the statute books and ought not to arouse such opposition. This view was substantially concurred in by Mr. Garretson. The conference, therefore, put aside further consideration of a Federal compensation bill to devote the rest of the session to discussing various angles of the proposed amendment.

It was thought by Mr. Cease that the proposed legislation would be less likely to arouse opposition on the part of the trainmen if it were made separate act instead of an amendment to the existing Federal Employers' Liability Act. After full discussion of this point it was decided to have the subject presented in both forms, as an amendment to the Federal Employers' Liability Act and as a separate act giving choice of remedies. Whether the subject should be introduced into Congress as an amendment or as a separate act was left to be determined after consultation with Congressmen familiar with legislative matters of this kind.

It was suggested that if the proposal is to be submitted as an amendment to the Federal Employers' Liability Act, a further amendment or amendments to this act should be submitted with a view to strengthening the act, which is a proposal to which the trainmen have already committed themselves.

The proposed amendment reads as follows:

Provided further, That where by the law of any State a system of compensation of workmen for injuries is established, and the same is applicable to em

ployees of common carriers by railroad engaged in intrastate commerce, the injured employee, or, in case of death, the person or persons entitled to benefits under such compensation law, may, at any time after the receipt of the injury and before the rendering of final judgment, choose and elect to claim the benefits and remedies provided by the compensation law of the State; and where such choice and election is made the provisions of this act shall not apply, and the rights and remedies under the compensation law of the State shall be exclusive.

Below is the text of the proposed separate act which will accomplish the same purpose:

Be it enacted, etc., That where by the law of any State a system of compensation of workmen for injuries is established, and the same is applicable to employees of common carriers by railroad engaged in intrastate commerce, it shall be lawful for the employees of any common carrier by railroad engaged in interstate commerce injured within the State in the course of their employment in such commerce, or, in case of death, for the person or persons entitled to benefits under the compensation law of the State, at any time after the receipt of the injury and before the rendering of final judgment, to choose and elect to claim the benefits and remedies provided by the compensation law of the State, to be recovered in accordance with the provisions of such law: Provided, That nothing in this act shall be held to limit the liability of common carriers or impair the rights of their employees under the provisions of an act entitled "An act relating to the liability of common carriers by railroad to their employees in certain cases," approved April 22, 1908, as amended by an act approved April 5, 1910, in any case other than where the choice and election are made to accept the provisions of the compensation law as above provided; but where such choice and election are made, the provisions of the act of April 22, 1908, as amended April 5, 1910, shall not apply, and the rights and remedies under the compensation law of the State shall be exclusive.

The desirability was recognized of obtaining more information as to the number and proportion of injured railway employees who have no remedy under the Federal Employers' Liability Act because their injuries were not due to any fault of the employing railway, and who are not entitled to compensation under existing State law, because they were injured while employed in interstate commerce. The committee agreed to collect all available information on this subject and to publish the same in the MONTHLY REVIEW of the United States Bureau of Labor Statistics. The committee then adjourned.

ROYAL MEEKER (Chairman),
JOHN MITCHELL,

A. J. PILLSBURY,

Committee on Jurisdictional Conflicts, I. A. I. A. B. C.

WORKMEN'S COMPENSATION INSURANCE IN OHIO.

As is well known, the subject of the obligation of employers to pay benefits to injured workmen in accordance with the provisions of compensation laws is one that has given rise to much vigorous dis25413°-17--11 [1229]

cussion. The laws of a number of States provide for funds to be administered by State agencies, sometimes as an alternative means of procuring insurance and sometimes as the exclusive method. Reference has already been made (see MONTHLY REVIEW of April, 1917, pp. 552–554) to the situation as it has developed in the State of Ohio, where the attempt of the State insurance commission to obtain a monopoly of such insurance has been strongly contested by the stock companies. Decisions by the supreme court of the State construing the law indicate that the requirements of the compensation statute as to scope and nature of the insurance must be strictly complied with; that these provisions do not repeal section 9510 of the Code, which is a general statement of the powers of insurance companies to write employers' liability insurance; but that the act does define and limit the nature and extent of the contract that may be written in cases where employers of more than five employees desire to secure indemnity. By section 22 of the original act (codified as section 1465-69), persons showing themselves to be of sufficient financial ability or credit to render certain the payment of compensation may carry their own insurance without the payment of premiums into the State fund. It was ruled that as to such self-insurers, policies taken out by them to reimburse themselves must contain provisions covering costs of medical and surgical services and funeral expenses in case of death; also that where employees elect to bring suit instead of accepting compensation, the insurance contract should contain no agreement covering the liability of an employer for injuries due to his willful failure to comply with lawful requirements for the safety of employees; further, that an employer of five or more persons could not obtain a contract of indemnity on account of accidental injuries due to his negligence of any kind if such employer is not a contributor to the State fund or has not legally exercised the option of carrying his own insurance under section 22 of the act.

These rulings of the court were given in a case in which the attorney general of the State brought proceedings against an insurance company whose contracts did not comply with the provisions of the law as indicated above, and there was judgment of ouster of the company in so far as it was exercising its franchise to write insurance policies contrary to these rulings. However, the operation of ouster was suspended for 100 days, in order to permit the company to conform to the determination of the court (State v. Employers' Liability Assurance Corporation (Jan. 31, 1917), 116 N. E. 513).

The validity of the section of the workmen's compensation law authorizing self-insurance, mentioned above, was directly challenged. in an attempt to procure a judicial ruling that would effectually exclude insurance companies from any field of operations in the State.

In this case (State v. United States Fidelity & Guaranty Co. (Apr. 17, 1917), 117 N. E. 232), the company admitted that it was writing insurance for employers who had complied with the requirements as to self-insurance under the compensation law but who were desirous of securing their own protection by insurance in a stock company. The company claimed that in writing such insurance it conformed with the requirements as to the payment of medical, surgical, and hospital expenses, and for funeral benefits where the injuries were fatal, such payments being made directly to the injured employees or their dependents. It also denied that its policies covered any liability on account of willful acts of the employers or a failure to observe lawful safety requirements.

In passing upon the validity of this section, however, the court took the view that the matter of insurance was not involved, since the only point that could be considered was the nature and effect of the section itself. It was charged that it contravened provisions both of the State and Federal constitutions in denying equal protection of the laws and making provisions not of uniform operation. On these points the court declared that it rested with the industrial commission of the State to determine the ability of the self-insuring employers, and to see that the law in behalf of employees was complied with in every respect by those employers no less than by those contributing to the State fund. The employee was, therefore, as fully protected in the one case as in the other, and the employer as fully obligated; so that no substantial favor was gained by either class, nor any greater burden fastened on either by reason of the form of classification adopted by the law. The commission was obligated still to exercise its duties in behalf of both employers and employees, whether self-insurers or contributors to the State fund, so that "the claim of inequality before the law is dissipated to the very vanishing point." It was pointed out that the matter of the wisdom or unwisdom of permitting indemnity-insurance contracts to survive in Ohio had no possible connection with the matter of the fundamental law at issue, and the law as it stood was completely sustained.

It was pointed out by the court in a concluding paragraph that while the name of the attorney general appeared as a party to the proceedings attempting to overthrow the law, it was done only at the request of associated counsel, who were the attorneys of the Ohio State Federation of Labor, while the attorney general himself, both by brief and oral arguments, upheld the section as being constitutional.

The law, as it existed when the cases which are above discussed arose, provided for the exemption from the requirements of making

contributions to the State insurance fund, not only of persons who were found financially able to carry their own insurance, but also of persons who maintained benefit funds or mutual associations in cooperation with other employers for the payment of suitable benefits. As the law was amended by an act approved March 29, 1917, exemption from contributions to the State fund is limited to persons who are of sufficient financial ability to render certain the payment of compensation benefits, " and who do not desire to insure the payment thereof or indemnify themselves against loss sustained by the direct payment thereof." The maintenance of benefit funds and mutual associations is, therefore, no longer an alternative privilege of employers, and it would appear that since only those who do not desire to insure may be exempt from membership in the State fund, the stock insurance companies are effectively barred from the field.

REPORT OF INDUSTRIAL ACCIDENT BOARD OF MONTANA.—A CORRECTION.

In a summary of the Second Annual Report of the Industrial Accident Board of Montana for the year ending June 30, 1917, which appeared on page 162 of the MONTHLY REVIEW for November, 1917, it was erroneously stated that the workmen's compensation law of that State "applies only to hazardous employments having five or more employees." While the law applies only to employers engaged in the industries, works, occupations, or employments specified therein as "hazardous," it includes all the employees of such employers, whatever may be their number.