The Hartford herald. [volume] (Hartford, Ky.) 1875-1926, 1914-12-16
According To the Court
OF Appeals.
HOLDS IT Unconstitutional
Jurists Declare Measure In
Conflict With Section 81
Of Constitution.
DIAMETRIC VIEWS ARE HELD


: compensation act, passed by the las
General Assembly, unconstitutional
and Judge Shackleford Miller, writ
ing dissenting opinion in favor OF
the law, declared his belief tina,
"the opinion of the majority makes
it impossible for the Legislature tc
pass any effective workmen's com.
pensation act under the present Con.
stitution,' although Judge Dorsey
writing the majority opinion, ex-
pressly said the court did not intend
to lay down O rule that would pre-
vent the Legislature enacting such
q law and that he believed a consti-
tutional act could be enacted.
Chief Justice Hobson and Judge
John NJ. Lassing, one of the special
Judges appointed by Gov. McCreary
to sit in the case, Joined in Judge
Settle. Carroll and Turner support
ed the majority opinion. Judge j.
l.. Dorsey, Of Henderson, who wrote
the majority opinion, also is one of
the special Judges appointed by the
Governor to sit in the places of
Judges Num- and Hannah, who own
stock in companies affected by the
decision. So the two special Judges
took opposite views of the case.
The whole issue in the court rest
ed on the question whether or not
the act was compulsory or elective.
1t prescribed that employers in the
class named in the act, who refused
to come under the provisions of the
compensation act, should be debar-
ed of the defenses to personal inju-
ry damage suits of contributory
negligence, the fellow servant rule
and the doctrine of assumed risks;
and that an emplOye who refused
the terms of the act should not req
cover damages for personal injuries
in 4 suit at law if his injury was
contributed to by his own or the
negligence of any other employee of
his employer. or if it was due to the
ordinary hazards OF the employ
ment, or If he could by the exercises
of ordinary care have ascertained
the defect in the machinery that in
jured him, or If his employer did
not know of the defect.
The law further stipulates that
when an employer comes under the
act and posts notices TO this effect,
If the employe continues to work
for him. IL will be conclusively pre-
sumed that he accepts the terms of
the act.
Section "a of the Constitution
forbids the General Assembly limit
ing the amount that can be recover
ed In damages for injuries to the
person or property; and the major
ity opinion, while conceding that
people may by contract, voluntarily
enter into, wave these rights, took
the view that when the employer is
debarred OF nearly all his defenses
10 suit for damages for personal
injuries, and the employe deprived
of most of his grounds of recovery,
II they refuse to accept the terms of
the act they are virtually coerced
into accepting Its terms apd have
not voluntarily entered into a con-
tract
The majority and dissenting opin-
ions are Numerically opposed to
each other. 'ln the light of Section
"a of the Constitution" said Judge
Dorsey, 1--WE must treat the contract
made by the employe under the pro-
visions of the act as compulsory and
therefore void. Such parts of the
act as give the compensation board
without the voluntary contract of
the employer, the right to recover
from the employer for the death of
an employe leaving no dependents,
and such other parts Of the act as
coerce the employe to consent to or
make contract that such compensa-
ton shall he paid into this compon-
sation fund. are void"
Judge Miller said: I'm view of
the uniform line of decisions to the
effect that the elective clause is cleo
tive and not compulsory. am OF the
opinion that the Kentucky compen-
sation act is a valid and enforcea-
BILE law, and should not be set aside |
upon a mere speculation or conjec-
ture. Kentucky Is the first State to
make this radical departure. and In
doing SO the court falls, II seems to
me, to make the essential legal dis
tinction between compulsory and
elective acts by giving more effect ]