Town of New Holstein v. Industrial Commission , 191 Wis. 93 ( 1926 )

The following opinions were filed June 21, 1926:

Vinje, C. J.

We need not determine whether or not the employment of Daun. by the town without a permit was illegal, or whether the town as a quasi-municipal corporation was subject'to the child labor law. As the workmen’s compensation law stood at the time of the injury to Daun, it made by sub. (l), sec. 102.04, Stats. 1923, the town an employer under the act. It further declared by sub. (7), sec. 102.09, that

“Compensation and death benefits, as provided in sections 102.03 to 102.34, inclusive, shall, in the following cases, be treble the amount otherwise recoverable: (a) If the injured employee be a minor of permit age and at tire time of the accident is employed, required, suffered or permitted to work without a written permit issued pursuant to section 103.05.”

Thus in plain language, the legislature said that a town employing a minor without a permit must respond in treble damages if an. injury occurs to the minor in the course of such employment. It is not the province of the court to construe away this unmistakable legislative mandate. Since this injury occurred, sub. (7), sec. 102.09, by ch. 384, Laws of 1925, has been amended to read as follows:

“When the injury is sustained by. a minor illegally employed,’ compensation and death benefits, as provided in sections 102.03 to 102.35, shall be as follows.”

Had the accident occurred under this law the question of the legality of Daim’s employment without a permit would have arisen; but we hold it does not arise under a law which says to an employer under the workmen’s compensation act that the employment of a minor of permit age without a permit subjects the employer to treble damages. The liability to treble damages under such a statute arises when there is an employment of a minor of permit age without a permit, irrespective of the legality or illegality of the employment. The act was intended to safeguard the health and life of minors and should receive a liberal construction in order to effectuate that purpose. The legislature made no exceptions in favor of the state or its subdivisions and the court can make none.

Claim is made that the evidence does not sustain the finding that after twenty-one years of age Daun would probably earn $1,400 per year.. We have examined the evidence with the result that we cannot say there? is no sufficient basis for the finding of the Commission, giving to its findings that conclusiveness the statute requires.

It is also urged that the statute is unconstitutional because it places upon the employer the burden of proving that the minor would probably not earn $1,400 after majority. Sub. (1) (e), sec. 102.11, provides: “Unless otherwise established his earnings shall be taken as equivalent to the amount upon which maximum weekly indemnity is payable.” As to employers who come voluntarily under the act, the argument is met by, the supreme court of the United States where it says:

“More than this, the employer in this case having elected to accept the provisions of the law, and such benefits and immunities as it gives, may not escape its burdens by asserting that it is unconstitutional. The election is a waiver and estops such complaint.” Booth Fisheries Co. v. Industrial Comm. (U. S.) 46 Sup. Ct. 491.

As to subdivisions of the state that come under the compensation law by force of statute, as the plaintiff did in this case, it is clear that the state may prescribe reasonable regulations as to their liabilities under the law. The placing upon them the burden of showing that a minor would probably not earn $1,400 after majority cannot be said to be so unreasonable as to be unconstitutional, assuming that a subdivision of a state can question the constitutionality of liabilities placed upon it by the state.

By the Court. — Judgment affirmed.