Quong Ham Wah Co. v. Industrial Accident Commission , 184 Cal. 26 ( 1920 )

I concur. I agree, for the most part, with the main opinion, but I am not in accord with its discussion of Estabrook Co. v.Industrial Ace. Com., 177 Cal. 767, [177 P. 848], and I would prefer to state as briefly as possible my own views for concurring in the result reached.

The law under discussion extends the benefits of the Workmen's Compensation Act to citizens of this state, but not to others, who are injured abroad in the course of their employment, when the employment was originated by contract within the state. The general questions are as to the power of the state to pass such a statute, and, if its power is limited, the exact effect of the limitation upon the statute. These general questions resolve themselves into a series of more particular questions.

First. Has the state any power whatever to prescribe the incidents of the relation of employer and employee when the employment, that is, the actual rendition of services by the employee, is without the state? If the state has no such power, then the present law is wholly void. That a state has no power to prescribe what the law of another sovereignty shall be is, of course, plain. In this sense, and the true sense, a state can give no extraterritorial effect to its laws whatever. But the present law does not attempt to do this. What it attempts to do is to prescribe what shall be the incidents within thisstate and according to its own law of a relation existing without its boundaries. So far as I know, an independent sovereign state has the power to prescribe what incidents it pleases shall attach within its own boundaries to any relation or to any set of facts or happenings, whether existing or occurring within or without its own boundaries. This is nothing more than saying that it has the power to determine what shall be the law within its boundaries. As to this, there is no one to say it nay as a matter of legal right. There is a decided practical limitation, that of the comity of nations, but this is not a limitation imposed by superior law and binding upon the state, but is only a limitation by way of policy which the state may or may not observe.

The present law, therefore, does not transcend the power inherent in a wholly independent sovereign, and if the state of California has no right to prescribe what shall be the incidents within its borders of an employment abroad, it must be because of some limitation upon its sovereignty. The only limitations of this character are those imposed by the federal constitution upon it as a constituent member of the Union, and, so far as I know, there is no general limitation in the federal constitution upon the power of a state to prescribe the incidents which shall attach within its boundaries and by its own laws to happenings or events occurring elsewhere. I conclude, therefore, that the state had the power to pass the law in question subject only to such special limitations as the federal constitution may contain.

Second. Is the law in conflict with any special limitation of the federal constitution? The only limitation of the federal constitution which it is claimed the law transcends is that which provides that a citizen of one state shall be entitled to have within another state all the rights and privileges of citizens of the latter. Putting it in a negative way, this constitutional provision means that no state shall discriminate in favor of its own citizens as against those of other states. By the present law our state extends the benefits of its Workmen's Compensation Act to employees who are its own citizens and are injured abroad in an employment originating here, but not to the citizens of other states injured under similar circumstances. It is apparent at once that there is present just the discrimination which the federal constitution seeks to prevent, unless:

1. There is valid reason for making in this case a distinction between citizens of this state and those of other states; or

2. The state was without power to pass such a law effective as to citizens of other states.

As to the first of these alternatives, the only reason advanced to justify the distinction is that it is only in the case of injuries to citizens that they or their families are likely to become public charges. There might be some ground possibly for this contention if the primary object of the law were to prevent injured employees or their families from becoming public charges. But this is not its purpose except in a very remote degree, and since it is not, the argument entirely fails.

As to the second alternative, it seems to me clear enough from what has already been said that the state has the power to prescribe what shall be the incidents within its own borders and according to its own laws as to everyone within it, citizens or noncitizens, of the relation of employer and employee, whether that relation be engaged in abroad or not. Certainly our attention has been called to no provision of the federal constitution to the contrary, and in the absence of such provision I can see no reason why the inherent sovereign power of the state to make what laws it chooses respecting the rights and obligations of those within its jurisdiction should be limited in this particular. The necessary conclusion, or rather the statement in a slightly different way of what has already been said, is that since so far as the objects of the act are concerned there is no reason for making a difference between citizens and noncitizens, and since it was within the power of the state to make the law apply to the latter as well as to the former, the act purports to make a discrimination which is not permitted by the federal constitution. This leads to the third question, which is:

Third. What under these circumstances is the effect of the provision of the constitution upon the act: Does it destroy it so that neither citizens nor noncitizens shall have its benefits, or does it operate to extend the benefits to noncitizens, so that they, as well as citizens, are "entitled" to its privileges, and the unlawful discrimination is thus removed? Upon this point I agree thoroughly with both the discussion and the conclusion of the main opinion, and with theEstate of Johnson, 139 Cal. 532, [96 Am. St. Rep. 161,73 Pac. 424], to which it refers and upon which it relies. The constitutional provision is couched in the affirmative, that "the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states." When a state endeavors to place a burden upon noncitizens but not upon citizens, the necessary effect of the provision is to strike down the burden, to nullify the law which imposes it. But when the state endeavors to confer upon its citizens privileges or benefits not conferred on others, the effect is just the opposite. The citizens of other states become "entitled" to those privileges or benefits, not by the operation of the statute, but by operation of a superior legislative enactment, the federal constitution, which declares in so many words, that they shall be so entitled. The constitutional provision, in other words, is a declaration that whatever rights or privileges the citizens of a state may enjoy the same rights or privileges shall likewise be extended to and enjoyed by the citizens of other states, regardless of the desire of the state that they shall or shall not enjoy them. The result is that, employees, both citizens of this state and those of other states, are entitled to the benefits of the act.

Fourth. In the answer just given to the third question lies, it seems to me, the true explanation of such decisions as those of Estabrook Co. v. Industrial Acc. Com., supra. It is there said that an employer may not question the validity of such a law as the present because he does not come within the class discriminated against, to wit, noncitizen employees. Now, it cannot, in the very nature of things, be true that when it is attempted to charge a man, an employer, for example, with liability under an invalid statute, a statute void because unconstitutional, he cannot question the validity of the statute upon which his liability depends simply because he is not one of the class discriminated against. If the law is a nullity and void, he of necessity is not liable and is entitled in all reason so to claim and show. If there are decisions to the contrary, nothing can be said of them except that they are fundamentally wrong. But the point in such instances as the Estabrook case is that the statute is not void. It is perfectly valid. It is true it contravenes the federal constitution in attempting to withhold its benefits from noncitizens. But it is its attempt to withhold, not to confer, that alone contravenes the constitution, and is therefore invalid and ineffective. The law stands as a valid enactment as to citizens, and the constitution operates to destroy its attempt to withhold its benefits from noncitizens and to extend those benefits to them. This being the true operation of the constitution upon the law which attempts to contravene it, it is plain that it is properly said in such a case that one not a member of the class discriminated against may not raise the question of constitutionality. It does not affect his liability in the slightest if the law is unconstitutional in the respect claimed, for the effect of the unconstitutionality is not to destroy the law but to extend it. As to him, the constitutional question is purely moot.

The recent decision of the supreme court of the United States in Travis v. Yale Towne Co., referred to in the main opinion, is an exceedingly good illustration of this. New York passed an income tax law allowing certain exemptions as to citizens, not allowed to others. Plainly, no citizen of New York could complain of this discrimination, because it was in his favor. The law was valid as to him. It was invalid as to noncitizens only, and as to them only to the extent of the discrimination. This much and nothing more was held in that case, and to this the decree was carefully limited, as the main opinion shows.