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 prov posed 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 *610employee 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 *611and 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 *612be 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.