Weekly journal-miner., 1915-07-14
COMPENSATION ACT
 DEFINED BY COURT


 PHOENIX, July 8.-Holding that the remedy under the workman's compulsory compensation act is per sonal to the workman, and that he alone can make a settlement binding on his personal representative, the Supreme court yesterday declared unconstitutional the provision of that law affording remedy to the injured mans personal representative, heirs or dependents in the absence Of cleo ton by the workman to accept com pensation
 Action was brought in the Superior court of Gila county by Belle Behr- inger asking $3O,OOO damages for the death of her husband while employed by the Inspiration Consolidated Cop per Company. The suit, 1t appeared, was brought under the law commonly known as Lord Campbelrs act, en- titled "Injuries resulting in death The company filed demurrer to the complaint claiming that the compul- sorry compensation act was binding. and this was sustained by the lower court.
 In its opinion handed down yester- day. the Superior court holds that when a workman dies without mak- ing an election as to settlement, as provided under the terms of the com pulsory compensation act, that his rights hereunder die with him. His personal representative is then rele- gated to an action for damages under the Lord Campbell's act or the em- p1oyers' liability act, according to the case
 After reviewing the facts in the case and the constitutional mandate under which the legislature enacted the compulsory compensation act, and the powers of the legislature hereunder, the decision of the Su- preme court says in part:
 We do not think the legislature possessed the power to enlarge the mandate of the constitution so as to authorize the personal representative to impose on his heirs and dependents remedy made by the constitution open to the workmen only. If the workman prior to his death, should elect to settle for compensation, and thereafter die, pending the settle ment with the employer, the personal representative doubtless could en- force the contract as he could any other contract of his intestate. The remedy under the constitutional pro vision for compensation is restricted as we see it to the workman and the ] legislative power under the mandate is limited to legislation for its effici- cnt enforcement by him, or his per sonal representative, in case he dies after electing to accept compensation. | Unless there was an election of this remedy in his life time by the de- l cannot maintain the action for com pensation, it being a condition of the right to maintain such suit against the employer that the employe should himself elect that remedy It will be seen from what we have said that the legislature in its attempt to enlarge the scope of the constitutional man. date (Sec. 8, Art. 1S) so as to afford the remedy therein mentioned to the personal representative or heirs or dependents of the deceased workman in the absence of an election by the workman to accept compensation is beyond the power and authority of the legislature and is of no avail.
 "We conclude that the workman's compulsory compensation act has no application to the state of facts be- fore us as presented by the complaint and demurrer; and that the remedy is personal to the workman, he only having the right to elect so as to make such election binding on him and his personal representative. The judgment is reversed and case re- manded with direction to overrule the defendants demurrer"
 The opinion was signed by Chief Justice Ross and Judge Franklin. Judge Cunningham wrote a separate opinion in which he neither dissented nor concurred, but held that Behr- inger's personal representative has right of action under the facts stated in the complaint, and that the case came under Title g, known as Lord Campbell's act.