all of the foregoing questions except the one raised in the fourth. The court, in answering question No. 4, held the act unconstitutional because it violated the "due process of law" clause of the constitution of the United States. The court, speaking through Mr. Justice Smith, said: "It is therein contended that in reserving to the employé his right to an action at law, the act denies to the mine operator the equal protection of the laws. We have decided that the fact that actions at law are not abolished by the act is not, of itself, a sufficient reason for declaring the statute unconstitutional. We do not believe 'that for the purpose of determining the validity of the tax it is necessary to find an immediate specific benefit to the individual taxed,' as is maintained by some writers on the subject. We think we have already shown that if the act can be justified at all it must be upon a much broader principle than that above indicated. The duty to make payments as provided in section 2 is absolute and unconditional. It can be enforced by appropriate action. But after full compliance with the terms of the act, the employer is not exonerated from liability. He may still be sued and compelled to pay damages in a proper case. No provision is made for reimbursement in whole or in part. The injured employés of one operator may all resort to the indemnity fund, while those of another may elect to appeal to the courts. The result is that the employer against whom an action is successfully prosecuted, is compelled to pay twice. He has fully paid his assessments under the act and is also obliged to pay damages. This fact is so palpable as to be needless of discussion. The act in this regard is not only inequitable and unjust, but clearly illegal and void as not affording to such employer the equal protection of the laws. The Legislature of the State of Washington guarded against this contingency by abolishing all actions for negligence. (Ch. 74, Session Laws, Washington, 1911.) The General Assembly of Maryland, in an act somewhat similar to ours (see Laws of Maryland, 1910, ch. 153) provided: 'If any suit or action be brought against any operator for or in respect of any injury or disability received by an employé while in the discharge of his duty or for death resulting therefrom and said operator shall appear and defend such suit or action and a judgment shall be rendered against him, he shall, after satisfying said judg* be entitled thereafter to deduct from the payments required to be made by him sum equal to the amount of said judgment and costs.' ment a "The manner in which the equal protection of the laws shall be afforded to the operator is, of course, for the legislative body to determine; but some method must assuredly be provided to protect him from double payments. The act in its present form, is, in this regard, so repugnant to all ideas of equity and equality that it must, we think, appeal to every right-thinking person, on the most cursory examination, as unjust. It was to guard against such legislation as this, as we apprehend, that the framers of all American constitutions guaranteed to the citizen the equal protection of the laws." On the question of the exercise of judicial power by the auditor it was observed by the court: "The fact that one who has a cause of action at common law may elect to take under the act, and the suggestion that as to him the auditor may be called upon to exercise judicial power, has no persuasive force when we consider that such election is altogether voluntary, and he may resort to the courts if he so desires. If the tax provided for in the act can legally be exacted from the employer, and, as is the case, the acceptance of its benefits by the claimant ipso facto operates to release the employer from liability, it is difficult to see how the latter has any further concern in the matter of distribution of the fund than to be assured, as the act provides he may be, that it is not paid out on improper or fraudulent claims. If the summary method of administration provided may not be resorted to, then one of the paramount reasons for this class of legislation must be entirely eliminated from consideration. It seems to us that the opinion of the Supreme Court of the United States * * effectually disposes of this question, as well as of some others which we have considered. As this opinion is already too long, however, we shall content ourselves with a single quotation therefrom: "Though, generally, both public and private wrongs are redressed through judicial action, there are more summary extrajudicial remedies for both.'" § 63. The effect of the decision.-This decision and the earlier New York decision2 establish conclusively that a compulsory workmen's industrial insurance or workmen's compensation act can not contain a provision that will give the injured worker the option of suing his employer or of accepting the compensation provided by the act. This decision leaves Montana without an operative workmen's compensation act. However, since the court sustained all of the provisions of the law, except that giving the injured worker the right to elect to sue his employer at law as heretofore or to accept the compensations given him under the compensation act, it may be cured and made operative by an amendment which takes away this option to sue and makes it obligatory upon him to accept the compensations made and provided in the act. § 64. Text of the Montana Insurance Act.-The act is entitled an act to create a state accident insurance, and total permanent disability fund, for coal miners and 2 Ives v. South Buffalo Railway Co., 201 N. Y. 271, 94 N. E. 431, 34 L. R. A. (N. S.) 162 n. 10-BOYD W C employés at coal washers in the state of Montana, and providing for the maintenance and management of the same; extending and defining the duties of the state auditor; and fixing penalties for the violation of its provisions. It provides: Section 121. (Section 1.)-To whom act applies.— All workmen, laborers, and employés employed in and around any coal mines, or in and around any coal washers in which coal is treated, except office employés, superintendents and general managers, shall be insured in accordance with the provisions of this act, against accidents occurring in the course of their occupations. Section 122. (Section 2.)-How fund raised-To whom paid. All corporations, partnerships, associations or persons engaged in the business of operating any coal mine or coal washers in the State of Montana shall pay to the auditor of the State, within five days after the monthly wages at the particular mine shall have been paid, one cent per ton on the tonnage of coal mined and shipped, or sold locally, or having been mined is ready for shipment or sale during the month for which the wages were paid, and all persons mentioned in section 1 employed in and about coal mines shall allow to be deducted from their gross monthly earnings one per cent. thereof, the deduction to be made by the agent, manager, or foreman of any corporation, association, partnership, person or persons engaged in the business of operating any coal mine or coal washer, and paid to the State auditor within five days after such monthly wages have been paid. Section 123. (Section 3.)-Agents to report tonnage mined-Contracts waiving effect of act void.-The agent, manager, foreman or accountant of any corporation, partnership, association, person or persons engaged in mining coal in Montana, shall on or before the fifth day succeeding the pay day at his respective mine, make a report under oath to the State auditor as to the tonnage mined and subject to the payment of one cent per ton thereon; and stating the gross earnings subject to the one per cent. deduction as provided in this act, accompanied by a certified check in full for the amount of the tax provided in section 2 of this act. It shall be unlawful for any person, employer, employé, corporation, partnership, association or union to make any contract waiving, avoiding or affecting the full legal effect of this act. Section 124. (Section 4.)—Receipts of funds by auditor-Duties-Liabilities of sureties of State treasurerInterest. It is hereby made the duty of the State auditor to receive all moneys as provided for in this act, and to send the proper acknowledgment to the person making such remittance. The auditor shall pay all moneys so received by him to the State treasurer, who shall keep such sums in safe custody in a distinct fund to be known as the Employers' and Employés Co-operative Insurance and Total Permanent Disability Fund. The State treasurer must invest the surplus of this fund in safe and convertible state, county or city bonds or bonds of the United States. All interest accruing from such investments shall be accredited to this insurance fund. The bond of the State treasurer shall be liable for such funds, and it shall be his duty to keep accurate accounts of the receipts and disbursements of such money. Section 125. (Section 5.)-Payment of death claims -To whom-Duty of auditor-Personal injuries-How compensation paid.-The auditor of State shall keep full statistics of the operation of this function of his department in the event of the death by accident of an employé insured under this act, who shall have come to his death in the course of his employment and by causes |