asserted a claim against the Galveston Stevedore Company, his employer, under the Texas law, has elected to waive his remedy elsewhere.

Whatever force the argument might have, as against the appellee's right to now proceed against his employer, the Galveston Stevedore Company, we think it should be given no such effect against the right of appellee to pursue the ship. He was concededly not employed by the ship, and could not have been benefited by any insurance the ship had taken out to protect its employees, and he made no claim against American Indemnity Company, as insurers of the ship or its agents, but only against the insurance taken out by the Galveston Stevedore Company to protect its employees, of whom appellee was one. The receipt taken by the American Indemnity recognizes this by its recitals. The release purports to be taken in favor of American Indemnity Company and the Galveston Stevedore Company only, so far as it applies to the Workmen's Compensation Act. As the appellee was not employed by the claimant, and could not have successfully asserted a claim to insurance taken out by the claimant or his agents for the employees of the ship, and as the appellee, in fact, made no such claim, and was paid nothing on account of such claim we do not think he is precluded from pursuing the ship, unless, independently of the Texas act, the effect of the release was to satisfy his cause of action in full against both joint tort-feasors, the ship and the stevedore company; and appellant claims it should be given that effect.

What might have been the effect of the release, if it had not been executed with the understanding of both parties to it that it was to evidence the receipt of insurance paid appellee under the Texas Workmen's Compensation Act, we need not inquire. Its recitals show that both parties understood the Texas law to be applicable, and executed the release to carry out its terms. This being true, the release should be given no greater effect than the Texas law would, if applicable, have given to the receipt of the payments by the appellee. If the law had been applicable to the accident, the receipt of the stipulated insurance would have precluded the appellee from suing his employer; not because the payments necessarily fully satisfied his cause of action, but because, under the Texas law, he was not permitted to pursue both remedies. The Texas law did not, however, preclude him from pursuing a stranger, who was jointly liable for his injury. In order to bar his action against a stranger, it would be necessary to show that he had been fully satisfied by the payment made to him for the cause of action for his injuries. This could only be done by showing an agreement on his part to accept them in full satisfaction, or by convincing the court that they were adequate in amount to that end. We think the utmost effect to be given the payments made to him and the release signed by him, either under the Texas Workmen's Com

pensation Act or at common law, would be to estop him from suing his employer and as a pro tanto satisfaction of his cause of action against a stranger. The evidence as to the amount received by appellee was before the District Judge, and we must assume that he gave it its legal effect in fixing the amount of the decree rendered.

The decree of the District Court is affirmed.

UNITED STATES CIRCUIT COURT OF APPEALS.
NINTH CIRCUIT.

JOHNSTON

V.

KENNECOTT COPPER CORP. (No. 3031.)*

1. STATUTES - GRANTING SPECIAL PRIVILEGE OR FRANCHISE-WORKMEN'S COMPENSATION ACT OF ALASKA. The Workmen's Compensation Act of Alaska (Laws 1915, c. 71), rendering any person or corporation, employing five or more persons in connection with mining operations carried on in the territory, who shall not have given notice in manner specified to reject the provisions of the act, liable to pay compensation in accordance with a schedule to employees receiving personal injury, or to their beneficiaries in case of death, is not violative of the Organic Act of Alaska (Act Aug. 24, 1912, c. 387) § 9, 37 Stat. 514 (Comp. St. 1916, § 3536), inhibiting the Legislature from granting to any corporation, association, or individual any special or exclusive privilege or franchise, without the affirmative approval of congress, in that it grants any privilege or franchise to the mining companies of the territory.

(For other cases, see Statutes, Dec. Dig. § 56.)

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT OF ALASKA — VALIDITY — ABSENCE OF INSURANCE FEATURE.

The Workmen's Compensation Act of Alaska is not invalid, in that it fails to provide for payment of compensation to an injured servant. for, though the act contains no insurance feature, it substitutes another scheme to accomplish the same purpose, while the particular method is mainly one of legislative choice, and so long as the method adopted is reasonably adapted to the purpose, not arbitrary, and without proper regard to cause and effect, it is beyond the scope of judicial function to disturb the choice.

(For other cases, see Master and Servant, Dec. Dig. § 347.)

3. CONSTITUTIONAL LAW-MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT OF ALASKA-“CLASS LEGISLATION."

The Workmen's Compensation Act of Alaska, applying only to mining concerns employing five or more persons in the work, is not violative * Decision rendered, Feb. 18, 1918. 248 Fed. Rep. 407.

1

of the equal protection of the laws clause of the Fourteenth Amendment of the federal Constitution, as class legislation; mining being the one great industry of the territory, attended by many hazards and complexities.

(For other cases, see Constitutional Law, Dec. Dig. § 245; Master and Servant, Dec. Dig. § 347.)

4. MASTER AND SERVANT - WORKMEN'S COMPENSATION ACT OF ALASKA-VALIDITY.

The Workmen's Compensation Act of Alaska, applying to mining concerns employing five or more persons, is not invalid, as making it more difficult for workmen to elect to accept its provisions, and to waive them, once election is made, than it is for the employer, or on account of its being burdensome for workmen to pay the expenses pertaining to verification and recording.

(For other cases, see Master and Servant, Dec. Dig. § 347.)

5. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT OF ALASKA-VALIDITY.

The Workmen's Compensation Act of Alaska is not invalid, as making no provision respecting workmen under the age of majority for accepting or rejecting the provisions of the act; minors not being denied the interposition of a guardian or next friend to do so for them.

(For other cases, see Master and Servant, Dec. Dig. § 347.)

Before Gilbert and Hunt, Circuit Judges, and Wolverton, District Judge.

In Error to the District Court of the United States for the Third Division of the Territory of Alaska; Fred M. Brown, Judge.

Action by J. W. Johnston, by his next friend, Otto F. Johnston, against the Kennecott Copper Corporation, a corporation. Judgment for plaintiff in accordance with Workmen's Compensation Act of Alaska, and he brings error. Affirmed.

The plaintiff below prosecutes error. While working for defendant in its mill, he suffered the loss of his right foot, and he alleges that the injury was the result of defendant's negligence. Plaintiff was at the time 20 years of age. The defendant by its answer pleaded the Workmen's Compensation Act of Alaska, asserting its liability to be $1,440 only, for which amount judgment was rendered against it and in favor of plaintiff. The plaintiff complains here of the action of the court in recognizing the validity of the act, and in rendering judgment in pursuance of its provisions, and not according to his alleged common-law remedy.

The act in question renders any person or corporation employing five or more persons "in connection with mining operations carried on" in the territory, who shall not have given notice in manner specified to reject the provisions of the act, liable to pay compensation, in accordance with a schedule adopted, to employees receiving personal injury, or to their beneficiaries in case death results from accident in the course of the employment, provided the employee so injured has not, prior to injury, given notice of his or her election to reject the provisions of the act in manner as prescribed.

The prescribed compensation for loss of a foot is $1,440. No compensation is allowed in any case where the injury is occasioned by willful intention to bring about the casualty, or where intoxication is the proximate cause. Provision is made for beneficiaries of a deceased person, whose death occurred through injury as an employee, to file their claim

for compensation in writing, verified by the oath of the claimants, and for a hearing before the district court, or before a jury if one is demanded. Provision is further made whereby the employer may, in anticipation of conflicting claims of such beneficiaries, file a bond in the sum of $6,000, or make deposit of that amount to abide the result of the controversy. Actions for recovery of compensation as per the schedule may be maintained in the courts of the territory, and attachment may issue on compliance with prescribed conditions. The employee is inhibited from waiving by agreement any of his or her rights to compensation under the act.

The employer is conclusively presumed to have elected to pay compensation in accordance with the provisions of the act, unless notice in writing to the contrary shall have been given to the employee by recording said notice with the United States commissioner in whose precinct the employer's operations are carried on; the commissioner to be paid a fee of $1.50 for the recording. In case the employer shall exercise the right to reject the terms and provisions of the act, it is declared that he shall not escape liability, and that he shall not be entitled to the defenses of assumption of risk, negligence of coemployee, or contributory negligence, unless such negligence was the result of willful intent to cause the injury, or the result of intoxication; and, in actions against the employer, where he has rejected the provisions of the act, it is presumed that the injury was the first result and growing out of the negligence of the employer, and that such negligence was the proximate cause of the injury, the burden of proof resting upon the employer to rebut the presumption.

Employees are conclusively presumed to have elected to accept compensation in accordance with the provisions of the act until notice in writing is served upon the employer or his agent in person, which notice is required to be recorded, as in the case of an employer giving notice of rejection. Such notice must be accompanied by an affidavit thereon showing the date upon which the same was served upon the employer. In cases where the employee, having rejected the provisions of the act, brings action to recover, the employer is accorded the right to plead and rely upon any and all defenses, including those at common law, including assumption of risk, negligence by coservant, and contributory negligence: Provided, however, that if the employee sustains injuries as a result of the employer's failure to exercise reasonable care to maintain safety devices required by statute, or of the violation of any statutory regulations relating to the safety of employees, the doctrine of assumed risk shall not apply. It is also provided that, where both the employer and the employee have rejected the terms of the act, the employee shall have the same right of action as though the employer had not rejected the provisions of the act.

By section 35 either employer or employee may waive rejection of the terms of the act in the same manner as they may signify their election to reject. The thirty-ninth section provides that "the phrase 'mining operations,' whenever used in this act, shall be held to include all work in connection with underground workings, underground mines, open cut working, surface working, stamp mills, roller mills, chlorination processes, cyanide processes, coke ovens, all reduction work of any kind or character, and all work performed on or for the benefit of any mine, mining claim, or claims, whether quartz or placer, and the phrase shall be held to include development and construction work, as well as work carried on in connection with actual mining or milling."

John Lyons, of Seattle, Wash., and E. E. Ritchie and J. L. Reed, both of Valdez, Alaska, for plaintiff in error.

R. E. Capers, of North Yakima, Wash, and E. Lyders, of San Francisco, Cal., for defendant in error.

Vol. II-Comp. 2.

WOLVERTON, District Judge (after stating the facts as above). The plaintiff challenges the validity of the Alaska act, on the ground that it denies the employee the equal protection of the law, and is in violation of section 9 of the Organic Act of the territory of Alaska, inhibiting the Legislature to "grant to any corporation, association or individual any special or exclusive privilege, * * * or franchise without the affirmative approval of Congress." Comp. St. 1916, § 3536.

The particular features of the act which it is insisted render it nugatory are: First, that it is class legislation; second, that it is discriminatory in its provisions; third, that it possesses no characteristic of industrial insurance and no provision for payment of compensation; that it creates no official authority for adjustment of claims, but merely compounds a schedule of payments to which the injured is entitled, and is a limitation of liability on the part of the employer.

[1] The suggestion that the act is in violation of section 9 of the Organic Act of the territory is not seriously pressed in the argument and briefs of counsel. Nor can it avail plaintiff, for it is manifest that the act grants neither privilege nor franchise to the mining companies of Alaska.

Counsel for defendant urges that the Fourteenth Amendment to the federal Constitution can have no application in the present controversy, because the amendment inhibits state action as it regards the denial of the equal protection of the laws, and does not, it is insisted, restrict the legislative action of a territory. This question may be waived, without deciding it, as we have concluded that plaintiff cannot prevail upon either of the questions presented in his behalf.

[2] For convenience, the third objection will first receive our attention. The gist of this objection to the validity of the act is that it contains no feature of industrial insurance and no provision for the payment of compensation. While the act does not contain any provision for industrial insurance, it does contain regulations for securing payment of the compensation for injuries. A bond or cash deposit by the mining company is provided for, where beneficiaries of deceased persons are concerned, out of which to meet compensation to which they are entitled; and in an action for the scheduled compensation, the employee has his attachment for securing the demand. So it cannot be said that the employee is without provision looking to the eventual payment of his claim. As to the absence of any insurance feature, the late cases of the Supreme Court proceed upon a reasoning, in support of Employers' Liability Acts, which appears to us to be ample to support the present

statute.

The New York act (Consol. Laws, c. 67), which is styled the "Workmen's Compensation Law," requires every employer subject to the provisions of the act to pay or provide compensation,