
    The State, ex rel. Williams, v. Industrial Commission of Ohio.
    
      Workmen’s compensation — Employe of insolvent non-contributing employer — :Entitled to compensation from state insurance fund surplus, when — Sections 1465-54, 1465-74 and 1465-75, General Code — Employe injured prior to passage of amended statute — Constitutional law• — Law constitutional by concurrence of three judges of Supíneme Court.
    
    (No. 19727
    Decided March 8, 1927.)
    In Mandamus.
    On March 29, 1926, the relator filed in this court his petition in mandamus. In his petition he alleged that he was an employe of an employer of five or more workmen, which employer had neither subscribed to the state insurance fund nor elected to pay compensation direct to his employes; that on October 6, 1923, he received personal injuries while engaged in the scope of his employment, which had partially disabled him from work ever since that time; that he made application to the Industrial Commission, and on April 15, 1924, the commission found that he had sustained the injury as alleged, and that his employer, employing five or more workmen, had not subscribed to the fund nor elected to pay compensation direct, and also found total disability from October 6, 1923, to April 7, 1924, resulting in an award of $15 per week, amounting to the total sum of $377.14; that the commission notified the employer of its said finding, and that later, on July 22, 1924, the commission found further disability and awarded further compensation. The petition also alleged that on April 15, 1924, and prior thereto, the employer was, and ever since has been, insolvent and unable to pay said compensation, etc.; that on August 26, 1925, pursuant to Section 1465-75, General Code (as amended March 26, 1925, 111 Ohio Laws, p. 218), he filed an application with the commission requesting proceedings under that section and a certification • to the Attorney General, and that, upon his certification of inability to collect the premium due from the employer, the relator claimed the right to recover compensation for his injuries from the surplus fund provided in the Compensation Act, as so amended.
    On February 26, 1926, the commission made the following order:
    “This claim came before the commission on the application of the claimant, "William M. "Williams, requesting the commission to proceed under the provisions of Section 1465-75 of the General Code, as found in 111 Ohio Laws, p. 218.
    “Mr. Clark moved that, since the claimant, William M. Williams, in the year 1924, filed application for compensation and proceeded under authority of Section 1465-74, G. C., and since it is admitted that the employer, Charles W. Finch, is and has been from the 22d day of July, 1924, insolvent, the commission finds that Section 1465-75, G. C., as found in 111 0. L., p. 218, does not authorize the Industrial Commission to proceed in this case, and that no action be taken.”
    In his petition the relator averred his right to have the commission make the determination provided in amended Section 1465-75, General Code, which would entitle him to a certificate in accordanee -with the provisions of said amended act, and that, if it should be found by the Attorney General that the amount was not collectible, the relator in that event was entitled to be paid his compensation, including medical expenses and hospital fees, from the surplus fund created by Section 1465-54, General Code.
    The relator prayed for an order requiring the defendant to proceed to the determination of facts required by said Section 1465-75, General Code, as so amended, and, if the amount was found to be uncollectible, that the commission determine what compensation the relator was entitled to receive from the surplus fund under the provisions of said amended section.
    The Attorney General, on behalf of the defendant, filed a general demurrer to this petition, and the cause is submitted to this court on that pleading.
    
      Messrs. McLeslcey é Grabiel, for relator.
    
      Mr. C. C. Crabbe, attorney general, and Mr. R. R. Zurmehly, for defendant.
    
      Mr. James I. Boulger, and Messrs. Keifer S Keifer, amici curiae.
    
   Jones, J.

The injury occurred on October 6, 1923. The amended relief Section 1465-75, General Code, evidently extends relief to those employes of employers who were such on or “at any time after January 1, 1923.” Said amended act provides that, after certain findings are made by the commission under that act, if the Attorney General certifies “that the amount found by the commission cannot be collected in whole, compensation for injuries, diseases or deaths suffered during the period covered by such finding shall be paid from the surplus created by Section 1465-54-, and any sum then or thereafter recovered on account of such finding shall be paid to the commission and credited to such fund as the commission shall determine.”

Reargument was asked by this court upon one question only: Whether compensation, under the provisions of the amended act of 1925, may be paid out of said surplus fund, to employes injured prior to its passage, where the employer is insolvent and has not contributed either to the creation of the fund or the surplus. Four members of this court, to-wit, Judges Marshall, Day, Robinson and Kinkade hold that compensation cannot be paid out of the surplus fund, as stipulated in the act, and that in that respect Section 1465-75, General Code,' as amended, is unconstitutional and violative of the due process clause found in Articles Y and XIY of the Amendments to the federal Constitution. Three members of the court, to-wit, Judges Allen, Jones and Matthias, are of opinion that the act is valid under the general provisions of Section 35, Article II, of the state Constitution, and that the amended act is clearly an extension of the state’s police power in safeguarding the lives of employes against the hazards of industry; that the due process clause does not restrict the state’s right to impose reasonable obligations requiring solvent employers to contribute to the compensation of employes of insolvent employers whose premiums are unpaid and uncollectible by the Attorney General. If it be conceded that the fund derived from the operation of the Workmen’s Compensation Act is property belonging to the contributing employers, some of which is taken to pay compensation to injured workmen of other insolvent employers, so far as the record before us discloses the amount that may be taken from the whole body of contributing employers may be comparatively insignificant.

“It is established by a series of cases that an ulterior public advantage may justify a comparatively insignificant taking of private property for what, in its immediate purpose, is a private use.” Noble State Bank v. Haskell, 219 U. S., 104, 110, 31 S. Ct., 186, 187 (55 L. Ed., 112, 32 L. R. A. [N. S.], 1062, Ann. Cas., 1912A, 487).

In such cases there would be no unwarranted and unreasonable exercise of the state’s police power in that feature of our workmen’s compensation laws. If undue burdens are hereafter imposed, and legislative powers are found to be arbitrarily and unreasonably exercised in their imposition, we will consider such a situation when it arises.

In the case of Mountain Timber Co. v. Washington, 243 U. S., 219, 245, 37 S. Ct., 260, 267 (61 L. Ed., 685, Ann. Cas., 1917D, 642), wherein the constitutional validity of the Workmen’s Compensation Law of Washington was before the federal court, Mr. Justice Pitney said:

“In Noble State Bank v. Haskell, 219 U. S., 104 [31 S. Ct., 186, 55 L. Ed., 112, 32 L. R. A. (N. S.), 1062, Ann. Cas., 1912A, 487], this court sustained an Oklahoma statute which levied upon every bank existing under the laws of the state an assessment of a percentage of the bank’s average deposits, for the purpose of creating a guaranty fund to make good the losses of depositors in insolvent banks.”

The Haskell case was cited in support of the validity of the Ohio Compensation Law in State, ex rel. Yaple, v. Creamer, Treas., 85 Ohio St., 349, 97 N. E., 602, 39 L. R. A. (N. S.), 694, and in Fassig v. State, ex rel. Turner, Atty. Gen., 95 Ohio St., 250, 116 N. E., 104.

Under the Workmen’s Compensation Law enacted pursuant to our state Constitution, the burdens are placed upon the hazards of industry rather than upon the individual. Whether the burden may be considered as having been imposed under the exercise of the police power, or as a measure of taxation upon business occupations, the principles announced in Timber Co. v. Washington, supra, apply. In the course of his opinion in that case Mr. Justice Pitney, quoting from a former case, said, at page 238 (37 S. Ct., 265):

“Neither the (Fourteenth) Amendment — broad and comprehensive as it is — nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity.”

And on page 243 (37 S. Ct., 267) alluding to the due process and equal protection clauses of the Fourteenth Amendment, as affecting Workmen’s Compensation Laws, he said:

“And if, as we have held in New York Central R. R. Co. v. White [243 U. S., 188, 37 S. Ct., 247, 61 L. Ed., 667, L. R. A., 1917D, 1, Ann. Cas., 1917D, 629], the state is at liberty, notwithstanding the Fourteenth Amendment, to disregard questions of fault in arranging a system of compensation for such injuries, we are unable to discern any ground in natural justice or fundamental right that prevents the state from imposing the entire burden upon the industries that occasion the losses. The act in effect puts these hazardous occupations in the category of dangerous agencies, and requires that the losses shall be reckoned as a part of the cost of the industry, just like the pay roll, the repair account, or any other item of cost.”

If the argument that only those who contribute to and create the fund and surplus may participate in its benefits be tenable, then the entire structure of our Workmen’s Compensation Act would be endangered, since the paid premiums which create the fund and surplus must necessarily be applied to losses occurring prior and subsequent to such contribution. After the premiums are paid into the fund by the employer under the act, the fund becomes the property of the state, and is held in trust for the payment of compensation to such injured employes as the state may designate.

In the companion case (State, ex rel. Rudd, v. Industrial Commission, post, 67, 156 N. E., 107), the Attorney General in his brief seems to concede that our workmen’s compensation scheme would be endangered; that denial of payment of compensation to employes of insolvent employers “would defeat our entire system of compensation.” Under our system of fixing premiums for employers, the premiums are based upon an estimated pay roll for the ensuing six months, and are paid on the basis of the estimated pay roll. However, at the end of the six months period it may be that the actual pay roll is three times larger than the estimated pay roll, and that three times the amount of premium paid is then due. In the meantime the employer has become bankrupt. Now in such case the Attorney General admits that the meanwhile insolvency of the bankrupt employer “will not prevent the employes from receiving the compensation provided by statute.” In so far as the due process clause is concerned, it is difficult to distinguish between a case where no premium is paid and one where a partial premium is paid by employers who become insolvent.

Under our workmen’s compensation system, injuries sustained by an employe of an employer, beginning operation in 1927, are compensable from a fund created before the employer started operations; that is to say, if A becomes an employer on January 2, 1927, and on March 2, 1927, his workman is killed in the course of his employment, the émploye’s dependents are compensated out of a fund substantially resulting from premiums paid by old employers prior to 1927. And, if the commission has been derelict in the collection of premiums from A, a duty enjoined upon it by Section 1465-75, General Code, and A meanwhile becomes insolvent, A’s employes are not and should not be chargeable with such dereliction. Industrial Commission v. Madden, 115 Ohio St., 230, 152 N. E., 662.

The pole star of our constitutional provisions relating to workmen’s compensation is the welfare of its workmen. Section 35, Article II, of our organic law, in the opening sentence, provides that laws may be passed “for the purpose of providing compensation to workmen and their dependents, for death, [and] injuries * * * occasioned in the course of such workmen’s employment.” By this section a “state fund” is authorized; the fund is to be “administered by the state, determining the terms and conditions upon which payments may be made therefrom.” The state has determined the terms and conditions. Section 1465-75, General Code, has provided that if the state is unable to recoup its fund by collection from insolvent employers compensation “shall be paid from the surplus created by Section 1465-54.”

If an employer becomes insolvent and does not pay his premium into the insurance fund, this does not deprive his employe or his dependents of the right to compensation. We so held in Industrial Commission v. Madden, 115 Ohio St., 230, 152 N. E., 662. In that case the Callahan Company had neither furnished its pay roll nor paid premiums for coverage of its employes at the time of Madden’s injury and death; the company claiming that it had abandoned its operations before he was killed. Madden’s dependents filed their application for compensation. It developed that, notwithstanding its failure to contribute to the fund, the company continued its operations up to the time that Madden was killed. In the meanwhile the company became insolvent. The dependents’ application for compensation was finally refused by the commission, for the reason that it thought the law did not warrant compensation from the state insurance fund to “the dependents of a killed employe of an employer who had not paid premium into the state insurance fund so as to have had coverage under the Workmen’s Compensation Law prior to and at the time of the injury or death.” Here was an insolvent employer who had not paid his premium nor obtained coverage at the time of the injury. It attempted to obtain coverage by paying the premium after the injury. That the employe’s dependents under such circumstances were not deprived of their right to compensation was held by this court in above case. In a per curiam opinion, concurred in by every member of this court save one, considering Section 1465-75, General Code, we then said:

“Under the provisions of that section it is the duty of the Industrial Commission to require payment of premiums or the furnishing of bond covering the same. Such delinquencies do not deprive an employe injured during such period of the benefit of the act.”

Whether such premium was paid voluntarily, or collected by suit, would not affect the right of the employe to recover compensation. The employe has no authority to bring suit for the collection of premiums; the state has. Section 1465-60, General Code, provides that every employer, employing three or more workmen,- is subject to the provisions of the act. If the employer has failed to furnish his pay roll and has failed to pay the premium, the state is authorized to collect the premium in an action brought against the employer “in the name of the state” (Section 1465-75, General Code), and the judgment obtained therein is given the same preference as a judgment rendered for taxes. So it can readily be seen why this court held that the delinquency of an insolvent employer in failing to furnish his pay roll and pay his premiums under the act did not deprive an employe of the benefit of the act during such period of delinquency.

Finally, as a controlling reason why the claim of the employer, that its property is taken without due process, cannot be sustained, is the concession that the state insurance fund does not belong to the employer. Such being the fact, due process is not available to the employer, for his property is not taken. The employer, having paid his premium to the state, has acquired not only insurance, but has also obtained immunity from suit — has obtained his quid pro quo — meanwhile the fund is held in trust by the state, solely for the benefit of injured workmen and their dependents.

We do not consider that any question of loan is involved; therefore we do not discuss it. This case and State, ex rel. Rudd, v. Industrial Commission, supra, were submitted and heard together, and additional reasons for support of the view herein taken may be found in the opinion in the Rudd case.

The demurrer might well be overruled for another reason, though not one decisive of the merits of the legal controversy. No contributing employer is now complaining, nor is any made a party to this action. The state moots the due process claim in such employer’s behalf. There is here no taking of the state’s property or fund in invitum, for the state has voluntarily yielded its fund or surplus, by appropriate legislation, for the payment of these claims for compensation.

“It is the -well-settled rule of this court that it only hears objections to the constitutionality of laws from, those who are themselves affected by its alleged unconstitutionality in the feature complained of.” Jeffrey Mfg. Co. v. Blagg, 235 U. S., 571, 576, 35 S. Ct., 167, 169 (59 L. Ed., 364).

This court has always adhered to that rule.

Unlike some jurisdictions, we are not empowered to give advisory opinions as to the constitutional validity of laws if future eventualities should occur. Furthermore, the petition does not disclose that the taking of the employers’ contributions, if it be a taking, may not be “comparatively insignificant” and justified by an “ulterior public advantage.” Noble State Bank v. Haskell, supra.

Since the vote of six judges is required by the Ohio Constitution before a law can be declared unconstitutional and void in a case originating in this court, and as there are but four judges holding the statutory clause under consideration void, it follows that the constitutional validity of the statute is sustained, and the demurrer should be overruled and the peremptory writ allowed.

Writ allowed.

Allen and Matthias, JJ., concur.

Marshall, C. J.,

dissenting. I dissent from the judgment of the court, and, in declaring my reasons for my dissent, shall take no notice of the claim that the statute is retroactive in its operation. Whatever unconstitutionality may exist on that ground will be speedily cured by the lapse of time, and I shall therefore address myself to the' larger question of the violation of due process.

The immediate and inevitable effect of the recent amendment to Section 1465-75, General Code, is to require solvent employers to compensate industrial accidents to employes of insolvent employers, to require solvent employers to pay a larger semiannual payment into the fund, and to submit to a larger premium rate, because certain employers neglect and refuse to contribute to the fund and escape direct responsibility for industrial accidents on the ground of insolvency.

It should be stated at the outset that no one at this time, after fourteen years experience with workmen’s compensation, questions the beneficence of its provisions, and no one denies the authority of the state in the exercise of the police power to impose assessments and by civil process collect from solvent employers such ratable sums as will provide a reasonable insurance fund to compensate industrial accidents. Numerous cases have been decided by the courts of last resort of the states of the Union, and by the Supreme Court of the United States, which fully establish the constitutionality of such statutes, but no court, so far as the reported decisions disclose, has ever been called upon to decide whether or not solvent employers can be compelled to respond for the delinquencies of insolvent employers.

I regard the judgment in this case and the opinion in support of it to be morally, economically, logically, and legally unsound. We are of course only concerned with its legal unsoundness. The authorities cited are the leading authorities which have heretofore been cited in numerous cases decided by this court and other courts to sustain the constitutionality of workmen’s compensation, and they are pertinent, cogent authorities upon that proposition, but it is difficult to see how they have any bearing upon the new question presented herein, as to the right by legislative fiat to disburse funds created by certain employers to pay benefits to injured workmen of other employers who have no part or interest in such fund.

No one contends that the state insurance fund belongs to the employers. It is a trust fund created for the benefit of certain persons, and the only question is as to who are or may be made proper beneficiaries of that fund. If the fund does not belong to the employers, a fortiori it does not belong to the state. No part of it has been raised by taxation. The state has no rights in it and no control over it except the right under a proper exercise of the police power to provide for the creation of a commission to administer the fund. So long as the fund is administered for the benefit of workmen of employers who have contributed to the fund, it has every characteristic and quality of insurance, but, when distributed in part to persons who have no interest in the fund, and who have not contributed directly or indirectly to it, it partakes of the nature of a charity. "Workmen’s compensation as heretofore administered is in no sense a charity, but, on the other hand, is an insurance, which is justified on the theory that the burdens of industrial accidents should be charged against the industries whose hazards have created the burdens.

The case of Noble State Bank v. Haskell, 219 U. S., 104, 31 S. Ct., 186, 55 L. Ed., 112, 32 L. R. A., (N. S.), 1062, Ann. Cas., 1912A, 487, does not support the decision in this case; neither does the quotation from page 110 of the opinion (31 S. Ct., 187) have any relation to the legal issues presented in the instant case. The statement of Mr. Justice Holmes concerning a comparatively insignificant taking of private property does not refer to the amount and value of the property taken, but wholly to the question whether the property taken is for a private use. The issue in the Haskell ease was whether an assessment could be levied upon all the banks in the state of Oklahoma to provide a fund to reimburse depositors of insolvent banks. All banks without exception were contributors to the guaranty fund, but naturally only depositors of banks which afterward became insolvent could be beneficiaries. This is a perfect analogy to the fact that only injured workmen can be beneficiaries, while it might happen that some employers who were contributors to the fund might be fortunate in having none of their workmen injured. That decision was further based upon the proposition that the police power of a state extends to the regulation of banking business, even to its prohibition, except on such conditions as the state may prescribe. By federal statute, and by the statutes of every state in the Union, the banking business has been by legislative fiat impressed with a public use, and banks everywhere are subjected to inspection and regulation. This is not true of employers in those lines of commercial endeavor which have not been impressed with a public use. Mr. Justice Holmes cites the following cases in support of his declaration relative to comparatively insignificant taking: Clark v. Nash, 198 U. S., 361, 25 S. Ct., 676, 49 L. Ed., 1085, 4 Ann. Cas., 1171; Strickley v. Highland Boy Gold Mining Co., 200 U. S., 527, 26 S. Ct., 301, 50 L. Ed., 581, 4 Ann. Cas., 1174; Offield v. N. Y., N. H. & H. Rd. Co., 203 U. S., 372, 27 S. Ct., 72, 51 L. Ed., 231; Bacon v. Walker, 204 U. S., 311, 27 S. Ct., 289, 51 L. Ed., 499. Every one of these cases relates to the subject of the right to take private property for uses which were argued to be private uses. In not a single one did it appear that the case turned upon questions of the amount and value of the property taken, but wholly upon the question of whether the same was taken for private use. Mountain Timber Co. v. Washington, 243 U. S., 219, 37 S. Ct., 260, 61 L. Ed., 685, Ann. Cas. 1917D, 642, was one of the leading cases upholding the constitutional validity of workmen’s compensation laws, as measured by the due process clause, but we have read the opinion in that case in vain to find anything which declares that there need not be a quid pro quo. The same is true of New York Central Rd. Co. v. White, 243 U. S., 188, 37 S. Ct., 247, 61 L. Ed., 667, L. R. A., 1917D, 1, Ann. Cas., 1917D, 629. That case upheld the constitutional validity of the New York Workmen’s Compensation Law, while the case of Mountain Timber Co. v. Washington, supra, upheld similar provisions in the Workmen’s Compensation Law of the state of Washington. The reasoning in both opinions is along similar lines, and has no bearing whatever upon the question of the inviolability of a trust fund. Another case cited is that of Jeffrey Mfg. Co. v. Blagg, 235 U. S., 571, 35 S. Ct., 167, 59 L. Ed., 364. That case involved an interpretation of the Ohio Workmen’s Compensation Act, and the only question involved was whether the act was discriminatory in withholding the defenses of assumed risk and contributory negligence as to employers having more than five employes, who refused to comply with the provisions of the act, inasmuch as those defenses were still open to an employer having less than five employes. The only important question decided by the court was the one question of discrimination. In the course of the opinion it was stated that much of the argument in behalf of the employer was based upon the supposed wrongs to the employe. The court then proceeded to declare that, inasmuch as no employe was complaining of the act, injustice to the employe could not be urged on behalf of the employer, and that it is a well-settled rule of the court that it will only hear objections to the constitutionality of laws from those who are themselves affected by the alleged unconstitutionality of the features complained of. There can be no argument iipon this well-settled proposition. It cannot, however, be applied to the instant case, because the defense is here made by the Industrial Commission, which is created as a trustee to administer the fund and to guard it against depletion and attacks upon the fund by those who are not entitled to its benefits. To say that the Industrial Commission may not raise this question would be equivalent to saying that the Industrial Commission may not resist the payment of any claims made against the fund upon any ground. The foregoing constitute all of the adjudicated cases which have been cited in support of the judgment. Surely nothing more need be said to show their inapplicability and their want of value in the determination of the legal issues involved in this case. It is further stated in the opinion that “the Attorney General in his brief seems to concede that our workmen’s compensation scheme would be endangered.” We are unable to find any such concession. It must be apparent that the workmen’s compensation scheme is placed in greater peril by violation of the fund than by safely guarding it.

If a statute which permits the fund to be applied to the payment of claims of injured workmen whose employers do not contribute to the fund is valid and constitutional, then by the same token it would be constitutional to permit the wages of employes of insolvent and noncontributing employers to be paid out of a fund created for such purpose by assessments levied upon solvent and contributing employers. The instant case does not turn upon the soundness and validity of workmen’s compensation laws. It turns upon the character of the state insurance fund, upon whether or not that fund can be diverted from the uses for which it was provided, and upon whether or not it can be distributed to benefit persons who had no part in creating it.

It is apparently the basis of the opinion that the taking from the fund to pay the . claims of employes of insolvent employers is “comparatively insignificant.” Neither the due process clause of the Fourteenth Amendment to the federal Constitution nor Section 19 of the Ohio Bill of Rights measures the amount and value of the taking. It is not provided in either of those constitutions that nearly all of the property of the citizen shall be held inviolate, but, on the contrary, it is provided that “private property shall ever be held inviolate,” meaning of course all private property without regard to value, and that all questions of value are for the determination of the jury and not for the arbitrary determination of a court which may by some course of reasoning conceive the same to be “comparatively insignificant.”

It is further stated in the opinion that it cannot be determined in advance that the fund will ever suffer a loss by such advancements; that there is always the possibility that the money may be recovered from the insolvent employer. It is a complete answer to this proposition that an enforced loan is in no wise different from a compulsory taking.

The legal question involved being in its last analysis one of due process, and the claims of counsel in this case being in large measure grounded upon the claim that it is only a loan of the funds, it becomes important to look into the fundamental causes out of which the doctrine of due process has evolved. Prior to 1628, the English monarchs had a pernicious habit of borrowing money from English nobles for the purpose of maintaining a navy, such loans being called “ship money,” the same being necessary because, while the military forces could be maintained under feudal practices, there was no means of raising money to maintain a navy except by loans called ship money. It was found to be exceedingly unhealthy for a wealthy nobleman to refuse to make such a loan. On the other hand, it was the universal experience that such loans were never repaid. In the reign of Charles the First, in 1628, parliament enacted a law known as the “Petition of Eight.” This law declared, among other things, that forced loans should no longer be demanded by the king, without the consent of parliament. Charles the First was compelled to give his assent on June 7, 1628. Having repeatedly violated his promise, he was impeached 20 years later and sent to the block, and Cromwell became protector. In 1689, during the reign of William and Mary, the crown was compelled to accept a more elaborate declaration, called the “Bill of Rights,” which incorporated practically all the provisions which have been carried into the Bills of Rights of the Constitutions of the United States and of various states. The English declaration of 1689 became the foundation stone of the doctrine of due process as declared and enforced in American jurisprudence, and the Fifth Amendment to the federal Constitution and Section 19 of the Ohio Bill of Rights are the embodiment of the principle that property cannot be taken without due process, and it is at least significant that that just and well-settled principle had its origin in the iniquity of forced loans.

The law which would take from solvent contributors to the state insurance fund to pay benefits to insolvent employers is unsound from an economic standpoint. The very law which was found to be legally constitutional in Noble State Bank v. Haskell, supra, was after only a few years experience repealed, because it so far encouraged speculation in banking that it defeated the very purpose which was sought to be served. Kansas, Texas, and other states tried the same experiment with like experience, resulting in repeals.

Day and Robinson, JJ., concur in this dissenting opinion.

Kinkade, J., concurs in the conclusions reached in the dissenting opinion.

Day, J.

In the matter of State ex rel. Williams v. Industrial Commission, I concur in the conclusions reached by members of the court who favor sustaining the demurrer to the petition; yet I am unable to reach the same conclusion in State ex rel. Rudd v. Industrial Commission, post, 67, 156 N. E., 107, this day decided, for in that case a different situation arises.

Rudd’s employer was a contributor to the fund at the time that Rudd received his injury. The employer has since become insolvent. Should Rudd be deprived of his right to share in the fund for the additional award? Rudd has already received compensation, and this controversy relates to his right to an additional award for the reason that he was hurt because of the failure of his employer to comply with a lawful requirement.

In my judgment, Rudd’s right to share in the fund, both for compensation and for the additional award, became fixed at the time of his injury. He had a perfect right, when his employer was a contributor to the fund, to share therein; and if, under recent constitutional amendments, the additional award is allowed because his employer violated a lawful requirement, this is a part of his compensation under the laws existing at the time of the injury, and he should therefore be permitted to recover such additional award, even though his employer has since become insolvent. To take away such right from Rudd would, in my judgment, violate his lawful and constitutional rights. Having been denied his right to go before a jury to have the damages assessed for his injury, he is compelled to accept the compensation allowed by the Industrial Commission, without reference to the violation by his employer of a lawful requirement.

While the state may take away a right given by statute, the rights incident to the performance by the employer of certain lawful requirements were in full force and effect at the date of Rudd’s injury, and he should not be deprived thereof. It is not sufficient to say that if Rudd’s employer has become insolvent, solvent employers will therefore have to pay for Rudd’s employer’s failure to comply with a lawful requirement. All contributing employers participate in payment of claims for injuries to employes of other participating employers. The case is not the same as if Rudd’s employer had failed to participate at all in the fund. By his contributing to the fund at the time of Rudd’s injury, Rudd’s right in the fund became fixed, and he should not be deprived thereof.

My concurrence in the case of Industrial Commission v. Madden, 115 Ohio St., 230, 152 N. E., 662, was based upon the fact that the Industrial Commission received and kept the premium for which the employer was in default, that, as stated in the per curiam, “the premium was subsequently paid, not as the result of a suit, but voluntarily, and the employe then became entitled to the same right of compensation out of the fund that he would have had if the premium had been paid when due.”

Entertaining these views, it is my conclusion that the demurrer to the petition in the Rudd case should be overruled.  