Mahlon Pitney

“ It must be seen, and is seen, however, that the difference between the position of employer and employe, simply considering the latter as economically weaker, is not a justification for the violation of the rights of the former, and that individual rights cannot be made to yield to philanthropy, and therefore the welfare of the government is brought forward and displayed. The law saves the government, is the comment, from the burden of paupers, its administration and peace from the disturbance of criminals. ”

“ We know things are in change-have changed-and a mark of it is that the drift of public opinion, and of legislation following opinion, is to alter the relation between empo yer and employe, and to give to the latter a particular distinction, relieve him from a responsibility which would seem to be, and which until lately it has been the sense of the world to be, as much upon him as upon his employer, not in dependence, not as a mark of subservience, but as an obligation of his freedom, and therefore, as a consequence, that where he has liberty of action he has responsibility for action. ”

“ A rather curious argument is used to support the Arizona law. It is said, in justification of its discrimination between employer and employe, that the employer may, in relief from it and rescue from its burdens, pass them to the consumers of his products, as he does or may do in the case of other expenses of his venture, and in the long run their incidence is, as it is said it should be, on the public, and that the Legislature in so considering was reasoning within constitutional bounds. There is attractive speciousness in the argument. ”

“ It is a certain impeachment of some rights to assume that they need justification, and a betrayal of them to make them a matter of controversy. There are precepts of constitutional law, as there are precepts of moral law, that reach the conviction of aphorisms and are immediately accepted by all who understand them, and comment is considered as confusing as unnecessary. ”

“ The employer is not exempted from any liability formerly imposed; he is given no quid pro quo for his new burdens; the common-law rules have been set aside without a reasonably just substitute; the employe is relieved from consequences of ordinary risks of the occupation and these are imposed upon the employer without defined limit to possible recovery which may ultimately go to nondependents, distant relatives, or, by escheat, to the state ”

“ The individual who hires only one man and works by his side is put on the same footing as a corporation which employs thousands; no attention is given to probable ability to pay the award; length of service is unimportant-a minute seems enough; wages contracted for bear no necessary relationship to what may be recovered; and a single accident which he was powerless to prevent or provide against may pauperize the employer. ”

“ It is now, I think, of pertinent inquiry whether the quality of being hazardous is an inherent and necessary element of legality or a matter of legislative definition and policy. Besides, if there can be liability without fault in one occupation, and that can be a principle of legislation, why not in any other? ”

“ From the foregoing it appears that we have for consideration a statute which undertakes, in the absence of fault, to impose upon all employers (individual and corporate) engaged in enterprises essential to the public welfare, not subject to prohibition by the state and often not attended by any extraordinary hazard, an unlimited liability to employees for damages resulting from accidental injuries-including physical and mental pain-which may be recovered by the injured party or his administrator for benefit of widow, children, parents, next of dependent kin or the estate. ”

“ In the last analysis it is for us to determine what is arbitrary or oppressive upon consideration of the natural and inherent principles of practical justice which lie at the base of our traditional jurisprudence and inspirit our Constitution. ”

“ A legislative declaration of reasonableness is not conclusive; no more so is popular approval-otherwise constitutional inhibitions would be futile. And plainly, I think, the individual's fundamental rights are not proper subjects for experimentation ”

“ The liability is not restricted to the pecuniary loss of a disabled employe or those entitled to look to him for support, but includes compensation for h ysical and mental pain and suffering; a recovery resulting in bankruptcy to an employer may benefit only a distant relative, financially independent ”

“ And the grounds suggested to support it really amount in substance to asserting that the Legislature has power to protect society against the consequences of accidental injuries, and therefore it may impose the loss resulting therefrom upon those wholly without fault who have afforded others welcomed opportunities to earn an honest living under unobjectionable conditions. As a measure to stifle enterprise, produce discontent, strife, idleness, and pauperism, the outlook for the enactment seems much too good. ”

“ Such is the clear import of the said Employers' Liability Law. * * *
'The liability incurred by the employer from a personal injury sustained by his employe from an accident arising out of and in the course of labor, service, and employment in hazardous occupations specified in the statute, and due to a condition or conditions of such occupation or employment, if such shall not have been caused from the negligence of such employe, is such an amount as will compensate such employee for the injuries sustained by him directly attributable to such accident. ”

“ Unitil now I had supposed that a man's liberty and property with their essential incidents-were under the protection of our charter and not subordinate to whims or caprices or fanciful ideas of those who happen for the day to constitute the legislative majority. ”

“ They are: (1) The common-law liability relieved of the fellow servant defense and in which the defenses of contributory negligence and assumption of risk are questions to be left to the jury. Const. §§ 4, 5, art. 18. (2) Employers' Liability Law, which applies to hazardous occupations where the injury or death is not caused by his own negligence. Const. § 7, art. 18. (3) The Compulsory Compensation Law, applicable to especially dangerous occupations, by which he may recover compensation without fault upon the part of the employer. ”

“ In Inspiration Consolidated Copper Co. v. Mendez (July 2, 1917) 19 Ariz. 151, 157, 166 Pac. 278, 279, 281, 283, the Supreme Court specifically held that the Employers' Liability Law does not conflict with the Fourteenth Amendment, and among other things said:
'That the liability statute must be construed as one creating a liability for accidents resulting in injuries to the workmen engaged in hazardous occupations due to the risks and hazards inherent in such occupations, without regard to the negligence of the employer, as such negligence is understood in the common law of liability ”