§ 167. The nature of the Ohio Workmen's Insurance act. The distinction between Workmen's Insurance and Compensation Acts has been pointed out in

Chapter I. It is sometimes loosely said that statutes of the nature of the British Workmen's Compensation Act have been enacted in California, Illinois, Kansas, Massachusetts, Nevada, New Hampshire, New Jersey, New York, Ohio, Rhode Island, Washington and Wisconsin, but this statement is too broad. The Workmen's Insurance Acts of Ohio, Washington and even of Massachusetts, are specific adaptations of the German Industrial Insurance Law and the legal basis for these three acts is found in the taxing power of the State exercised through its police power for the protection of the health, safety and the general welfare of the public. The Compensation Acts of the nine other States mentioned are adaptations of the British Workmen's Compensation Acts and in no way depend upon the taxing power of the States. The basis of the two kinds of acts are fundamentally different under our constitutional limita

tions.

§ 168. Ohio act an insurance act.-The Ohio Act is in fact a workman's Insurance Act, for the reason that it makes the claim of the injured workman a claim against a fund and not against his employer, as is the case in the so-called workman's compensation laws. There are only two exceptions of very rare occurrence to this statement. The first is that in which the State Liability Board of Awards denies the injured workman any relief whatever, and in that case his right to sue the Board of Awards is preserved, but he is denied the right to sue his employer.1 His action is against the board. The second exception occurs where a personal injury is suffered or when death results to an employé from personal injuries which have "arisen from the willful act of such employer of any such employer's officers or agents from the failure of such employer, or of any of such employers' officers or agents, to comply

1 See § 36 of Act.

with any municipal ordinance or lawful order of any duly authorized officer, or any statute for the protection of life or safety of employés." This is the only case in which is retained the right of the employé to sue his employer who has paid the premium prescribed by the Board of Awards. An injured employé, however, who files a suit on such a claim by that act waives any claim to compensation from the fund created by the act.2 The rarity of such an occurrence is shown by reference to the operation of the British Compensation Act. The actual figures of an English insurance company for one year (1908) show that out of 10,343 accidents there were only fifty-five employers' liability claims. This showing is made stronger when it is understood that under the British Compensation Act, an injured employé may elect to sue at law or accept compensation given by the act, and his election to sue does not deny him the right to compensation under the Compensation Act, in case the suit at law should fail. Under the Ohio act, however, the moment the employé files his suit he stakes all his chances on winning his suit and waives any claim against the fund, and he has more to prove than in ordinary suits at law previous to the passage of the act.

§ 169. Ohio act an indirectly compulsory act.When the employer has paid the premium and posted the notice required by the acts and the workman continues in the service of such an employer and is injured he is compelled to accept the compensations provided by the act, excepting the rare case cited in the preceding section. The act is in fact compulsory on the part of the employé.

2 See § 21-2 of Act.

3 See Senate Document No. 338, 62d Congress, 2d Session, p. 103, Report of the Employer's Liability and Workmen's Commission of the United States. Feb. 21st, 1912.

These results are strongly supported by the experience under the Washington Act. See review of eight months operation by the Industrial Insurance Commission of Washington; ante § 166.

3a See §§ 20-1.

A color of option on the part of the employer is found in section 20-1 of the Ohio Act. In the first line the word "any" was inserted in the place of "every," and in the third line the word "who" was inserted before the words "shall pay, etc.," by the opponents of the mandatory form of the original draft of the law. The penalty, however, for the failure to pay the premiums prescribed by the law, namely, the taking away of all of the common-law defenses from the employer, remains in the law, and is the same penalty recommended by the Employer's Liability Commission of Ohio when the draft of the law was in the mandatory form. The law in effect is mandatory.

§ 170. Employers' liability under the act.-Briefly stated, the law is that the employer who employs five or more workmen or operatives regularly in the same business is relieved from all liability for injuries in course of employment where he pays into the State insurance fund the premiums fixed by the State Liability Board of Awards. The exception is in the case of injuries wilfully inflicted by the employer. Where the premiums are not paid the employer is liable as under the common law, except that he is denied the common-law defenses.

§ 171. The statute and its interpretation by the board and the attorney-general.—The Ohio Act is entitled an act to create a State insurance fund for the benefit of injured, and the dependents of killed employés, and to provide for the administration of such fund by a State liability board of awards, and reads as follows:

Sec. 1. There is hereby created a State liability board of awards, to be composed of three members, not more than two of whom shall belong to the same political party, to be appointed by the governor, within thirty days after the passage of this act, one of which members shall be appointed for the term of two years,

one member for four years and one member for six years, and thereafter as their terms expire the governor shall appoint one member for the term of six years. Vacancies shall be filled by appointment by the governor for the unexpired term.

Note by the board.-In obedience to the provisions of this section, Governor Harmon, on July 14, 1911, appointed as members of the State Liability Board of Awards, Mr. T. J. Duffy, of East Liverpool, Democrat, for a term of two years; Mr. William A. Grieves, of Columbus, Republican, for a term of four years; and Mr. Wallace D. Yaple, of Chillicothe, Democrat, for a term of six years. On July 25, 1911, Mr. Grieves resigned and on August 24, 1911, the Governor appointed Mr. Morris Woodhull, of Dayton, to fill the vacancy thus created. Mr. Duffy has for some years been PresiIdent of the National Potters' Association; Mr. Woodhull is a manufacturer; and Mr. Yaple is a lawyer.

Sec. 2. Each member of the board shall devote his entire time to the duties of his office and shall not hold any position of trust or profit or engage in any occupation or business interfering or inconsistent with his duty as such member, or serve on or under any committee of any political party.

Note by the board.-Each member of the board upon his appointment promptly complied with the requirements of this section.

Sec. 3. Each member of the board shall receive an annual salary of five thousand dollars, payable in the same manner as salaries of State officers are paid.

Sec. 4. The board shall be in continuous session and open for the transaction of business during all the business hours of each and every day, excepting Sundays and legal holidays. All sessions shall be open to the public, and shall stand and be adjourned without further notice thereof on its records. All proceedings of the board shall be shown on its record of proceedings, which shall be a public record, and shall contain a record of each case considered, and the award made with respect thereto, and all voting shall be had by the calling