EMPLOYERS' LIABILITY the act to recover damages, where he has a cause of action by common law or by other statutes. This brief statement of the main pro visions of the bill suggests at least three difficulties which require consideration: the mode of procedure by which controversies are to be decided, the list of employments to which the act is to apply, and the rule of absolute liability which the bill adopts. i. It will be noticed that the bill makes no provision for trial by jury. The arbitra tor is to have the powers of an auditor (§ 23 of bill); but while ordinarily, under the statutes of Massachusetts, the report of an auditor appears to be only prima facie evidence of the facts found by him, the present bill provides that the memorandum filed by the arbitrator shall for all purposes have the same force and effect as a judgment of the court, subject to correction by order of a justice of the Superior Court ( § 26 of bill) . How can this exclusive method of settling disputes under the act be reconciled with the Massachusetts Declaration of Rights, which guarantees trial by jury in all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherwise used and practiced? It is true that the workman submits voluntarily to the act, since his common law remedies, if any, remain intact; if he wishes to avail himself of the benefits of the statute, he may have to take them upon such terms as they are offered. It may therefore be that he cannot complain of any violation of his constitutional right to trial by jury. It is otherwise with regard to the employer. It may be more advantageous to him to go before an arbitrator than before a jury, but it is still more advantageous to escape liability altogether; while therefore he might be willing to waive a jury, if he could be compelled to submit to some tribunal, the denial of the right to jury trial may be used by him to have the whole act declared un
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constitutional. This has been the fate of measures of other states which sought to compel submission to arbitration (State v. Divine, 98 N. C. 778, St. L. I. M, & So. R. R. Co. v. Williams, 49 Ark. 492). It would incumber the operation of the act very little if the employer were given his constitutional right to demand a jury, since there would be little inducement for him to avail himself of it. 2. The second questionable feature of the proposed legislation is its scope as shown by the list of employments to which it is to apply. The selection of the railroad busi ness for a burden of liability heavier than the ordinary has been upheld as legitimate, in view of the obvious danger to life and limb which is inseparable from it (see especially 174 U. S. 76). The English act of 1897 was made to apply to a number of industries that had previously by reason of their hazard ous character, been subject to statutory regulations.1 But what principle underlies the list of trades and employments of the Massachusetts bill? If it may not be de manded that all equally dangerous kinds of work be included, at least it should be re quired that all employments which the bill selects should show some special feature of danger. How on this principle can the in clusion of every workshop be justified? There are simple handicraft trades carried on without the use of mechanical power which present no special hazard whatever. In these the employer is placed under strict liability, while the much more dangerous employment of the dock laborer is outside of the bill. To impose a heavy economic burden upon the small tailor or baker, from which the proprietor of a great mercantile establishment or hotel is exempt, is a dis crimination which it is difficult to justify. It is well known how often the singling out of certain trades or avocations has been a stumbling block to legislation, how readily 1 It is true that this basis of selection was aban doned when, in 1900, the law was extended to all agT'Cultural employments.
