ON July 18 and 19, 1911, the following orders were passed by the Senate and on the last named day were transmitted to the Justices of the Supreme Judicial Court. On July 24, 1911, the Justices returned the answer which is subjoined.

Senate, July 18, 1911.

WHEREAS, There is now before the Senate a bill entitled "An Act relative to payments to employees for personal injuries received in the course of their employment and to the prevention of such injuries," being House Document No. 2154; and

WHEREAS, No similar legislation has ever been enacted in this Commonwealth; and

WHEREAS, An act for a similar purpose was enacted in the State of New York, and has been decided to be in violation of the Constitution of the State of New York and of the Fourteenth Amendment to the Constitution of the United States; and

WHEREAS, There appears to be no precedent bearing on said subject in other jurisdictions in the United States;

BE IT ORDERED, That the opinion of the Justices of the Supreme Judicial Court be required on the following important questions of law:

First. Is the said bill, House Document No. 2154, in conformity with the provisions of the Constitution of the Commonwealth of Massachusetts which requires that property shall not be taken from a citizen without due process of law?

Second. Is the bill in conformity with the fourteenth amendment to the Federal Constitution?

Senate, July 19, 1911.

ORDERED, That in submitting to the Justices of the Supreme Judicial Court a copy of the order adopted by the Senate requiring the opinion of the said Justices as to the constitutionality of the House Bill relative to payments to employees for personal injuries received in the course of their employment and to the prevention of such injuries, the clerk be directed to forward to the Justices a copy of the amendment of the said bill adopted by the Senate; and that, in rendering their opinion, the Justices be directed also to take into account the effect of the said amendment on the bill.

The amendment adopted by the Senate was the insertion in Part V. after § 2 of the following new section:

"Section 3. Any liability insurance company authorized to do business within this Commonwealth shall have the same right as the association to insure the liability to pay the compensation provided for by this act, and a policy holder of such liability company shall be regarded as a subscriber so far as applicable within the meaning of this act, and when any such company insures such payment of compensation it shall be subject to all the regulations and obligations imposed upon the association."

[House bill No. 2154, as amended by the insertion of the section printed above was enacted, practically without change, in St. 1911, c. 751, which was approved on July 28, 1911.]

To the Honorable Senate of the Commonwealth of Massachusetts:

We have received the questions, of which a copy, with the act referred to therein and the amendment adopted by the Senate, is hereto annexed, and after giving to them such consideration as we have been able to give in the time at our disposal, we respectfully answer them as follows:

The questions submitted to us are important, and the proposed act involves a radical departure in the manner of dealing with actions or claims for damages for personal injuries received by employees in the course of their employment from that which has heretofore prevailed in this Commonwealth; but we think that nothing would be gained by an extended discussion and we therefore content ourselves with stating briefly the conclusions to which we have come and our reasons therefor.

The first section of the act (Part I. § 1) provides that "In an action to recover damages for personal injury sustained by an employee in the course of his employment, or for death resulting from personal injury so sustained, it shall not be a defense:

1. That the employee was negligent;

2. That the injury was caused by the negligence of a fellow employee;

3. That the employee had assumed the risk of the injury."

This section deals with actions at common law. We construe clauses 1 and 2 in their reference to negligence as meaning contributory negligence or negligence on the part of a fellow servant which falls short of the serious and wilful misconduct which under Part II. § 2, will deprive an employee of the right to compensation. So construed we think that the section is constitutional. We neither express nor intimate any opinion whether it would be unconstitutional if otherwise construed. The rules of law relating to contributory negligence and assumption of the risk and the effect of negligence by a fellow servant were established by the courts, not by the Constitution, and the Legislature may change them or do away with them altogether as defenses (as it has to some extent in the employers' liability act) as in its wisdom in the exercise of powers entrusted to it by the Constitution it deems will be best for the "good and welfare of this Commonwealth." Const. Mass. c. 1, § 1, art. 4. See Missouri Pacific Railway v. Mackey, 127 U.S. 205; Minnesota Iron Co. v. Kline, 199 U.S. 593. The act expressly provides that it shall not apply to injuries sustained before it takes effect. If, therefore, a right of action which has accrued under existing laws for personal injuries constitutes a vested right or interest, there is nothing in the section which interferes with such right or interest. The effect of the section is not to authorize the taking of property without due process of law, as the Court of Appeals of New York held was the case with the statute referred to in the preamble to the questions submitted to us and which in consequence thereof was declared by that court to be unconstitutional. Ives v. South Buffalo Railroad, 201 N.Y. 271. Construing the section as we do and as we think it should be construed, it seems to us that there is nothing in it which violates any rights secured by the State or Federal Constitutions. We see nothing unconstitutional in providing, as is done in Part I. § 2, that the provisions of § 1 shall not apply to domestic servants and farm laborers; nor in providing, as is done in Part I. § 5, that the employee shall be deemed to have waived his right of action at common law if he shall not have given notice to his employer as therein provided. The effect of the provisions referred to is to leave it at the employee's option whether he will or will not waive his right of action at common law. See Foster v. Morse, 132 Mass. 354.

The rest of the act deals mainly with a scheme for providing, through the instrumentality of a corporation established for that purpose entitled the Massachusetts Employees Insurance Association, and the subscription of employers thereto, for compensation to employees for personal injuries received by them in the course of their employment, and not due to serious and wilful misconduct on their part. There is nothing in the act which compels an employer to become a subscriber to the association, or which compels an employee to waive his right of action at common law and accept the compensation provided for in the act. In this respect the act differs wholly so far as the employer is concerned from the New York statute above referred to. By subscribing to the association an employer voluntarily agrees to be bound by the provisions of the act. The same is true of an employee who does not choose to stand upon his common law rights. An employer who does not subscribe to the association will no longer have the right in an action by his employee against him at common law to set up the defense of contributory negligence or assumption of the risk, or to show that the injury was caused by the negligence of a fellow servant. In the case of an employee who does not accept the compensation provided for by the act and whose employer has become a subscriber to the association, an action no longer can be maintained for death under the employers' liability act. But these considerations do not constitute legal compulsion or a deprivation of fundamental rights. We do not deem it necessary to take up and consider in detail the numerous provisions by which the right to compensation and the amount thereof and the persons entitled thereto and the course of procedure to be followed and matters relating thereto are to be settled and determined. We assume, however, that the meaning of §§ 4 and 7 of Part III. of the proposed act is that the approved agreement or decision therein mentioned is to be enforced by proper proceedings in court, and not by process to be issued by the Industrial Accident Board itself. Taking into account the non-compulsory character of the proposed act, we see nothing in any of these provisions which is not "in conformity with" the Fourteenth Amendment of the Federal Constitution, or which infringes upon any provision of our own Constitution in regard to the taking of property "without due process of law." It is within the power of the Legislature to provide that no agreement by an employee to waive his rights to compensation under the act shall be valid. See Missouri Pacific Railway v. Mackey, 127 U.S. 205; Minnesota Iron Co. v. Kline, 199 U.S. 593.

In regard to the amendment it is to be observed that no liability insurance company is obliged to insure, and that if it chooses to do so there is nothing unconstitutional in requiring that it and the policy holder shall be governed by the provisions of the act so far as applicable.

It should be noted perhaps in the interests of accuracy that there is no phrase in our Constitution which in terms requires that "property shall not be taken from a citizen without due process of law." The quoted words, which we take from the first question submitted to us, are a paraphrase of what is contained in the Constitution, but are not the language of the Constitution itself.

We have confined ourselves to the questions submitted to us, and we answer both of them in the affirmative.

Owing to their absence from the Commonwealth, the Chief Justice and Mr. Justice Loring have taken no part in the consideration of the questions.

JAMES M. MORTON. JOHN W. HAMMOND. HENRY K. BRALEY. HENRY N. SHELDON. ARTHUR PRENTICE RUGG.

THE HONORABLE JOHN LATHROP, a Justice of this court from the twenty-eighth day of January, 1891, until the eleventh day of September, 1906, died at Dedham on the twenty-fourth day of August, 1910. A meeting of the members of the bar of the Commonwealth was held in Boston on the twenty-first day of October, 1911, at which a memorial was adopted, which was presented to the full court on the same day. Before presenting it, the Attorney General addressed the court as follows:

May it please your Honors: We are assembled this morning for the purpose of paying deserved and fitting tribute to the name and memory of the late Mr. Justice John Lathrop, formerly an honored member of the Supreme Judicial Court, who died on the twenty-fourth day of August, 1910. In accordance with long-established custom, the Attorney General has been called upon to present to this honorable court formal resolutions adopted by the members of the bar, expressing their appreciation of and regard for the public services and judicial career of the late Justice Lathrop and their esteem for him as an honorable citizen of the Commonwealth.

In assuming the duty and privilege assigned to me by my learned brethren of the bar, I regret that I am unable from personal acquaintance or official experience with Justice Lathrop to supplement these resolutions with recollection of personal association. While I appeared before him in numerous cases in general practice, it never was my privilege to know him intimately or otherwise than in his judicial capacity. However, those things were apparent to me that were observable by other attorneys appearing before the court of which he was an important member for so long a time. He always displayed acute interest in each proposition that was submitted for his consideration. He quickly grasped the points that were made on either side. He did not hesitate to inquire of counsel concerning that of which he had any doubt. His query was always to the point. Counsel always felt that he had been fairly dealt with and fully heard.

Under our system of appointment to the bench for life, the history of our courts has been that the service of the justices has extended, ordinarily, over a long period of years, and that the Commonwealth has benefited in a large measure by the continued service and increased efficiency necessarily resulting therefrom. This proved to be the case with Mr. Justice Lathrop. His bent of mind, his early training and his progressive professional life seemed to point naturally to his final elevation to the Supreme Judicial Court. There he displayed the results of the early training that made his appointment to that court so natural and fitting.

Although, during the period of my acquaintance with him, he was in the sunset years of his life, and despite the failing health that eventually compelled him to cease his valuable labors on behalf of the judicial service of the Commonwealth, nevertheless, he appeared to be one of those men whose active mentality kept his face ever toward the morning light of the progress of the times, and whose present vision was not dimmed by the recollection of events belonging only to the past. His exact, logical and lucid opinions may well be considered a fitting and everlasting monument to his life work.

I now have the honor to move that the memorial be accepted and made a part of the records of the court.

The Attorney General then presented the following memorial:

The members of the bar desire to place on record their appreciation of the public services and judicial career of John Lathrop, late a Justice of the Supreme Judicial Court, who resigned from the bench because of continued ill health on September 11, 1906, and who died on August 24, 1910.

Born in Boston on February 8, 1835, he passed his early years in Dedham, in the County of Norfolk, and in Dedham, after an eventful life as a soldier and jurist, he died and was buried. Descended from a long line of clerical ancestors of purest English stock, his father continuing the line as a chaplain in the Navy, his early life was subject to the vicissitudes of a clergyman's career.

He was graduated from Burlington College in the State of New Jersey in 1853; he studied law in the Harvard Law School, whence he was graduated in 1855; and he was admitted to the Suffolk bar in 1856. In 1906, toward the end of his creditable career upon the bench, Williams College honored itself and recognized his meritorious service in more than one walk in life by bestowing upon him the honorary degree of Doctor of Laws.

He was scarcely enrolled as an attorney and counsellor upon his admission to the bar, when, at the outbreak of the Civil War, the call of duty led him unhesitatingly to give up a promising practice to enter the Volunteer Army. He enlisted in the Dedham Company which became a part of the 35th Regiment of Massachusetts Volunteers, and was commissioned as a first lieutenant. Thrown at once into active service he developed quickly the qualities of a resourceful soldier and officer. He was brave, he was indefatigable, he was careful of his men, he had them well in hand. He was, besides, alert, punctilious, painstaking, methodical, qualities that distinguished him throughout his career. He fought at South Mountain, at Antietam, at Fredericksburg, with coolness, daring and good judgment; was promoted to a captaincy and was no mean factor in gaining for the 35th the title of a "fighting regiment." Unhappily in the autumn of 1863 Captain Lathrop contracted malarial fever, which compelled him on November 13 of that year to resign for disability; and thereupon he returned to Boston, broken in health, to resume the practice of the law.

During his subsequent career at the bar he had the reputation of being a conscientious practitioner and a competent adviser, while in the narrowing field of the law of admiralty, which he made his specialty, he came to be recognized as a leader.

The bent of his mind was toward the literary side of the law and this led him to accept the congenial appointment of Reporter of Decisions of the Supreme Judicial Court, to which he was appointed in March, 1874.

When he entered upon his new duties he found, owing to the ill health of his predecessor, the work of his important office largely in arrears and the bar clamoring for the delayed reports. With limited assistance and lacking modern devices for hastening such work, he addressed himself vigorously to the task of closing the gap and of overtaking the court. Cases enough to make several intermediate volumes were taken in hand by scholarly lawyers by whom they were prepared and published as volumes 110 to 114 inclusive of the Massachusetts Reports. Meanwhile the new reporter addressed himself to the task of reporting the more recent decisions as promptly as the technical character of the work and the continuous and sporadic accumulation of cases in his hands would permit. One notable change in the method of grouping cases in each volume was made by him, which in itself resulted in a greater celerity in the issue of the reports. This was the abolition of a custom, which had obtained in this Commonwealth from the days of Quincy and Pickering, of grouping in each report all the cases argued at a certain law term and in a given county, the result of which was that the large number of cases which were promptly decided waited for publication upon the more or less delayed decision by the court of the last of the series. Under the new system the decisions for the first time were reported consecutively as they came down from the full bench according to the date of the rescript, which, together with the date of the argument, the county of origin and the names of the sitting justices, has since been printed under the title of each case.

Since this system was adopted by Judge Lathrop it may be confidently asserted that the reports have been placed in the hands of the profession with all reasonable promptitude considering the nature of the work, the equipment of the reporter's office, and the personal equations involved.

As a reporter Mr. Justice Lathrop was conventional and conservative, and he clung closely to the methods of his predecessors in that high professional calling, conforming religiously to the "canons of law reporting" as exemplified by the reports of the courts in England and in this country, both in this Commonwealth and in other courts of last resort, State and Federal. His marginal notes, according to the theory that such notes in each case should, instead of short statements of general principles involved, reproduce with photographic exactness the facts of the case followed by what was "held" thereon by the court, were always exact, though often long; the explanatory statements of facts as drawn by him made clear every basis of contention of counsel and responded completely to the opinion of the court; while the opinions of the justices on more than one occasion gained in expressive diction, in closeness of reasoning and in authoritative force through his frank criticism, his grasp of legal principles, and his wide and increasing familiarity with the adjudged cases. His English style was simple, crisp and forcible, and his reports as issued from the press were models of typographic excellence.

Thirty-one volumes of the Massachusetts Reports, numbered 115 to 145 inclusive, were the output of his office while he occupied the responsible position of reporter.

In March, 1888, while still Reporter of Decisions, he was appointed a Justice of the Superior Court. To perform adequately the duties incumbent upon a judge of the great trial court of the Commonwealth requires, besides sound learning and abundant common sense, a wealth of experience in the practice of the law, a knowledge of human nature, a faculty for administration and a sympathetic temperament, combined with firmness, good judgment and infinite patience, qualities rare to find blended in one and the same person. If Mr. Justice Lathrop lacked some of these qualities, he at least possessed enough of them to render during his brief tenure upon that bench effective service to litigants and to the Commonwealth, while at the same time he was preparing for a different but not more important service in the court of last resort. He was industrious and painstaking in applying the law to the facts of a case, fair to counsel, protective of witnesses, considerate toward juries, and solicitous of the rights of parties.

When appointed a Justice of the Supreme Judicial Court in 1891, he was placed in a position more in accord with his tastes and legal training. He disclosed as a member of the court of last resort the same qualities that marked him as reporter. He wrote opinions as a Reporter of Decisions might be expected to write them. He was wont to state the facts of a case lucidly and compactly, and then to lay down the law applicable to such facts according to the adjudged cases. He was above all a case lawyer, who in all his work hewed close to the line of legal authority as laid down in the reports. Until September, 1906, when he was compelled to resign from active work because of ill health, he labored unceasingly in doing thoroughly and promptly his share of the work of the important tribunal of which he was an honored member.

He was ever a man of a self contained, dignified and impassive demeanor, who treated that portion of the public which came in contact with him with an even-handed justice, and with a reserved and somewhat formal courtesy. In the social and club life of Boston, in which he was always a considerable figure, he was considerate of the rights and feelings of others, and on occasion an interesting even charming companion. To a small circle of contemporary friends, of which he was nearly the sole survivor, did he alone reveal his real and kindly self, and to them he was united by ties the most friendly, even tender and affectionate.

Never in full or robust health, he strove through life to do every task laid upon him thoroughly and ungrudgingly, and, though at times a great sufferer, carried himself with unflinching fortitude and without complaint.

He was a brave and self-sacrificing soldier, a conservative and patriotic citizen, a careful and industrious lawyer, a diligent and high-minded judge, a most useful public servant.

CHIEF JUSTICE RUGG responded as follows:

Brethren of the Bar: It is altogether fitting, and in accordance with time honored usage, that the court pause in its regular business to join with the bar in a tribute of respect and appreciation to the memory of one of its Justices, who has deceased. Nothing which can be said or done on such an occasion will much affect the position of the one who has gone, in jurisprudence or in the history of the law of the Commonwealth. Any one who has been long upon this bench has written, in its opinions, his own record, where it is beyond the reach of praise or detraction. But there is a just satisfaction in a delineation by friends and associates of the salient facts of the life, the personal traits and marked characteristics of one who has rendered valuable public service.

John Lathrop, for many years and in different capacities, was active in living the full life of a devoted servant of the State. He was born in Boston on February 8, 1835, where he lived during most of his life, and died in Dedham on August 24, 1910, where his ashes lie buried. He inherited a name already rendered distinguished in the annals of the Commonwealth by more than one forebear. His first ancestor on this continent was Rev. John Lothrop, who came here in 1634, and became the first minister at both Scituate and Barnstable, while his great-grandfather, also of the same name, was minister of the Second Church in Boston for almost half a century.

Graduating at Burlington College, New Jersey, and at the Harvard Law School, he entered upon the practice of his profession in 1856 in Boston. His sense of patriotic duty impelled him to volunteer in the war for the preservation of the Union, where he rose to the rank of captain. After zealously performing this duty, he returned to the practice of the law, and continued the consideration of legal questions without interruption until the infirmities of age compelled his relinquishment of them in 1906. He gave special attention to practice in admiralty, and had attained some distinction in that branch of law, when in 1874 he was appointed Reporter of Decisions of this court. The headnotes of the cases in our reports, the work of his hand, during the fourteen years he held this office, from volume 115 to volume 145 inclusive, are plain, concise and accurate. His reputation for sound and comprehensive learning is attested by the fact that he was lecturer upon different branches for several years in the law schools of Harvard and Boston Universities.

The training gained in the careful performance of these important duties was helpful in his years of judicial work. He was a Justice of the Superior Court from 1888 until his appointment to this bench in 1891, where he served fifteen years. The first opinion of the court written by him is found in 153 Mass. 215, and the last in 192 Mass. 451. In these forty volumes are the visible evidences of his achievements upon this court. His memory of cases was remarkable in fulness and correctness, and was constantly exercised in performing his judicial duties. His decisions were firmly grounded upon precedents. The characteristics of his opinions were accuracy of citation and purity of style. In these respects they are among the best. They are clear in statement, and confined closely to the points actually in issue. He did not attempt to write an exhaustive exposition of the questions of law involved, and he thereby avoided indulging in dicta which not infrequently become troublesome to the bench as well as to the bar. His method of thought was direct and incisive, and his expression of it was in simple language. His opinions are easy of comprehension, and cannot well be misunderstood.

He loved the city of his home, and was fond of her history. Quiet and unobtrusive in his mode of life, he was scholarly in his tastes, and cherished a fondness for choice and rare books. His long experience as Reporter of Decisions and Justice in each of the higher courts gave him an intimate acquaintance with almost a generation of judges and an unusual familiarity with the judicial traditions of the Commonwealth. He was fond of friends, and in social organizations enjoyed the companionship of gentlemen of refinement and learning.

During a long and laborious life, he bore his part with courage, faithfulness, ability, learning, soundness of judgment and steadfast adherence to high ideals. He was modest and unpretentious in the incumbency of high office, but he was mindful of the responsibility and dignity which accompany the proper administration of justice.

An order may be entered that the memorial be recorded, and the court will now adjourn.