main subject to fix the premiums to be paid, upon the basis of the hazard in the different employments and arbitrarily to make the compensation to the injured workman a certain precentage of his wages.

§ 96. Nature of administration of compensation acts. An insurance or compensation act should not confound the executive and judicial functions of the state. It is of the highest importance on the ground of expediency that these provisions shall take, as far as possible, the form of administrative measures rather than those of a judicial nature. In the administration of an industrial insurance act, it is necessary in the interest of economy to put into operation summary methods of procedure in so far as they are in harmony with justice. At the same time, it is necessary to use as little as possible those judicial methods which experience has shown result in such great economic waste in the adjudication of personal injury suits. In the second place: If the final determination of a controversy arising under an industrial insurance act must be by means of a trial by jury, then the much hoped for saving in economy would be lost. The 7th Amendment of the Constitution of the United States reads as follows: "In suits at common law where the value in controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law."

It follows, therefore, from the 7th Amendment, that in case a controversy arising out of an industrial insurance act can be classified as an executive function of the state, then the 7th Amendment has no application, for the reason that it is limited in its application by its express provisions to judicial proceedings. The inquiry at this point is whether the administration of the act is an

executive or judicial function and if a judicial function does it fall within that class of actions which receive a trial by jury.

§ 97. Nature of administration of compensation acts whether executive or judicial-Due process.-A consideration of the question whether these acts call into exercise executive or judicial functions involves an investigation of the limitations created by the 5th Amendment to the Federal Constitution, with respect to "due process of law." This provision is deemed to apply not only to the power of the legislative, but also to the judicial branches of the state government. This amendment provides that:

"No person shall be deprived of life, liberty, or property, without due process of law."

The phrase "due process of law" has application in our problem, not only to the rights created by the act, but also rather to the remedy provided by the act to make the putting the same into effective operation.

The executive arm of every state government disposes of many problems which, considered by themselves, are purely judicial in character. This principle, as the authorities show, is illustrated in the following examples, viz.: (1) In the levying of special assessments; (2) in the exercise of the power of eminent domain; (3) in the collection of various taxes; (4) in the adjudication of those controversies (of purely judicial nature) which deal with questions of account between tax collectors and the state, in which the state may finally determine all issues through its administrative agencies. Says the Supreme Court of the United States:

"Though 'due process of law' generally implies and includes actor, reus, judex, regular allegations, opportunity to answer, and a trial according to some settled

course of judicial proceedings (2 Inst. 47, 50; Hoke v. Henderson, 15 N. C. (4 Dev. L.) 15, 25 Am. Dec. 677; Taylor v. Porter, 4 Hill 146, 40 Am. Dec. 274; Vanzant v. Waddel, 2 Yerg. 260; Bank of State v. Cooper, 2 Yerg. 599, 24 Am. Dec. 517; Jones v. Perry, 10 Yerg. 59, 30 Am. Dec. 430; Greene v. Briggs, 1 Curt. C. C. 311, Fed. Cas. No. 5,764), yet this is not universally true. There may be, and we have seen that there are cases under the law of England after Magna Charta and as it was brought to this country and acted on here, in which process, in its nature final, issues against the body, lands, and goods of certain public debtors without any such trial; and this brings us to the question whether those provisions of the Constitution which relate to the judicial power are incompatible with these proceedings.

"That the auditing of the accounts of a receiver of public moneys may be, in an enlarged sense, a judicial act, must be admitted, so are all those administrative duties the performance of which involves an inquiry into the existence of facts and the application to them of rules of law. In this sense the act of the President in calling out the militia under the act of 1795 (12 Wheat. 19, 6 L. ed. 537,) or a commissioner who makes a certificate for the extradition of a criminal, under a treaty, is judicial. But it is not sufficient, to bring such matter under the judicial power, that they involve the exercise of judgment upon law and fact. * The power

*

to collect and disburse revenue and to make all laws that shall be necessary and proper for carrying that power into effect, includes all known and appropriate means of effectually collecting and disbursing that revenue, unless some such means should be forbidden in some part of the Constitution. The power has not been exhausted by the receipt of the money by the collector. Its purpose is to raise money and use it in payment of the debts

of the government; and whoever may have possession of the public money, until it is actually disbursed, the power to use those known and appropriate means to secure its due application continues."44

The right of trial by jury does not apply to condemnation proceedings. The jury trial can only be claimed as a constitutional right where the subject is judicial in its character. The exercise of the right of eminent domain stands on the same ground with the power of taxation. Both are emanations of the lawmaking power. They are attributes of political sovereignty, for the exercise of which the legislature is under no necessity to address itself to the courts. In imposing a tax, or in appropriating the property of a citizen, or a class of citizens, for a public purpose, with a proper provision for compensation, the legislative act is itself due process of law; though it would not be if it should undertake to appropriate the property of one citizen for the use of another, or to confiscate the property of one person or a class of persons, or a particular description of property, upon some view of public policy, where it could not be said to be taken for a public use. 45

The principle is the same in the matter of the levy and collection of ordinary taxes in a summary manner." 46

"The mode of assessing taxes in the states, by the Federal government, and by all governments, is necessarily summary, that it may be speedy and effectual. By summary is not meant arbitrary or inequal or illegal.

44 Murray v. Hoboken Land, etc., Co., 18 How. (U. S.) 272, 15 L ed. 372.

15 Lewis Eminent Domain (2d ed.), § 311. In re New York Central R. Co., 66 N. Y. 407.

46 Kelly v. Pittsburg, 104 U. S. 80, 26 L. ed. 659; Palmer v. McMahon, 133 U. S. 699, 33 L. ed. 776, 10 Sup. Ct. 324; Spencer v. Merchant, 125 U. S. 345, 31 L. ed. 763, 8 Sup. Ct. 921; Watson v. Nevin, 128 U. S. 578, 32 L. ed. 544, 9 Sup. Ct. 192; Hagar v. Reclamation Dist., 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. 663.

But

It must, under our Constitution, be lawfully done. that does not mean, nor does the phrase 'due process of law' mean, by a judicial proceeding. The nation from whom we inherit the phrase 'due process of law' has never relied upon the courts of justice for the collection of her taxes, though she passed through a successful revolution in resistance to unlawful taxation."47

The principle is satisfied if the law provides for a board of revision authorized to hear complaints respecting the justice of the assessment, and prescribes the time during which and the place where such complaints. may be made. 48

§ 98. Deprivation of right to trial by jury.-The question whether these statutes operate as a denial of the right to trial by jury within the constitutional sense is squarely met by the Supreme Court of Montana in passing upon the compensation law of that state. After showing that the constitution does not prevent a change in the system of actions for negligence, the court says:

"The right of trial by jury which is secured and protected by the constitution, refers to the trial of cases, actions, or suits at law (see Koppikus v. Capitol Com.. missioners, 16 Cal. 249), and has no reference to claims against an indemnity fund, such as are provided for by this act, or demands by the State auditor for occupation taxes. There is not anything in the constitution guaranteeing a right of trial by jury in case of demand for a license or occupation tax. The adjustment of claims under the act is an administrative function and not a judicial proceeding, and it is only in certain cases falling under the latter designation that trial by jury is guaranteed by the constitution. 'Due process of law' does not

47 McMillen v. Anderson, 95 U. S. 37, 24 L. ed. 335.

48 Hagar v. Reclamation District, 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. 663.