Index to Periodicals entire disregard of its neighbor's welfare. In respect of diverion, we may anticipate the presumption that a nation is not justified in diverting the entire flow of a stream from its neighbor. . . . "An equitable distribution of interstate waters under the high and impartial auspices of the Supreme Court would be a novel, but not a
startling proceeding. This principle commended by the law of nations should find readier accept ance in the jurisprudence of our fraternal states, and its application is better assured among these states whose justiciable controversies are deter minable by a constitutional court than among the nations, whose differences are adjusted by force or diplomacy or by voluntary submission to an arbitral tribunal." Workmen's Compensation. "Workmen's Compensation for Injuries." By Leonard J. Tynan. 34 New Jersey Law Journal 164 (June). A very able article. The author summarizes his conclusions as follows, and it seems to us that the soundness of the first five contentions below stated, may possibly be approved: — "1. A workmens compensation act that is devoid of mutuality, to wit, that binds one of the parties to accept its provisions while it leaves the other party free, after an accident, to elect, will be more strenuously op sed than will be one that is mutual, and in w ich the obligation of the one party to pay is balanced, as a con sideration, by the obligation of the other party to acce t. "2. nder a state constitution which guaran tees to the citizen that his property shall not be taken without due process of law, the enforce ment of a mandatory workmen's compensation act would be such a taking; and as the subject is not one which concerns the public ‘health, safety, comfort, morals, peace or order,’ the police power of the state cannot be invoked to read such a provision into contracts of hire, and deprive the citizen of the property right to con tract.
"3. A statute which, as that of New Jersey, enforces the compensation provision on all who fail to reject it, but gives all the power to reject it, is a astrap for the and is oiJ robably invalid to those whounwary, know nothing its pro visions, for, despite much that is said and written
to the contrary, there is a very fair argument to sustain the proposition that all persons are not presumed to know the law. "4. The amending of a state constitution in an attempt to make lawful the enactment of a compensation statute, embodying, as such pro posed constitutional amendment necessarily will,
an absolute exception to the constitutional pro vision which now safeguards the right of private property, is repugnant to the sense of justice and right, and is a violent trespass upon ‘those ancient and fundamental principles which were in existence when our constitutions were adopted. "5. The suggestion of Mr. Justice Werner in the New York decision that "due process of law" as spoken of in the Federal Constitution in fact merely means ‘due process of law' under the constitution of the particular state, is probably not well founded, and, in case of mandatory legis
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lation of this character, even though it be in accord with the provisions of a state constitu tion, the employer will be likely to find protec tion in the Fourteenth Amendment of the Federal Constitution. “6. The statuto abolition of the doctrine that the employer 5 all not be liable for acci dents caused through the negligence of the injured servant's fellow-servant, but that, under an extension of the doctrine of respondent superior, the employer shall answer for the negligence of his servants toward each other as well as towards strangers, will do much to put employers in a frame of mind to accept the provisions of a rea sonable compensation act. "7. The placin upon the defendant, in acci dent litigation, of the burden of proof of contribu tory negligence (which is already the case in some of the states) will also tend to induce the employer to accept the provisions of a reason able compensation act. “8. The best public opinion of the day is undoubtedly in favor of a system of Workmen's insurance or compensation to cover accident losses, the entire cost of which should be a charge upon the industry in which the workmen are employed. "9. Reasonable legislation upon the subject will merely outline a suggestive form of compensation agreement to be ‘read into‘ the contract of hire, withafair scheduleof compen
sation and a mutuality of obligation, which form, at any time before an accident, the parties to the contract may, b mutual agreement, adopt or reject at will. he labor unions, public opinion, the abolishing of the fellow-servant rule, the limitation of common law defenses, and the desire to avoid litigation, will all tend to make it to the interest of the employer to adopt a statute with a reasonable schedule of compensation." "New York Workmen's Compensation Act." Comments on Ives v. South Bufl'alo R. Co. By Charles C. Moore. 15 Law Notes 44 (June). Replying forcefully to Mr. Roosevelt's Out look article. “judge Werner's opinion dodges nothing. Now, we hold that the burden of proving error rests heavily upon those who differ with the court, and that this burden is in no material
degree supported by showing that the court's description of due process of law is not exactly correct, or by baldly asserting a duty to provide for ‘orphans, widows and cripples.’ . . . "By reflex mental operation the dis ionate observer is com lied to recollect the futility of similar efforts 0 the liquor interests to stay the steamroller advance of the ‘police power.’ which,
in some states, with the assent of the United States Su reme Court, almost utterly destroyed valuable rewery and distillery properties, and everywhere firmly established stringent civil damage acts, so called, and the like.
At the
same time, this brings us around in the neigh borhood of our first reply to the Outlook’: criticisms of the Ives case. Has the public an unrestrained liberty to execute its will on behalf of employees against employers in precisely the
