1. The Wisconsin Workmen's Compensation Act, (Ls.1921, §§ 239
19) which makes the findings of fact of the Industrial Commission
conclusive if there be any evidence to support them, does not
thereby violate the rights of an employer under the Fourteenth
Amendment by depriving him of a judicial review of the facts on
which an award is made against him, because the Act is elective and
does not bind an employer who has not voluntarily accepted its
provisions. P. 271 U. S.
2. An employer who has made such election, accepting the burdens
of the Act with its benefits and immunities, is estopped from
questioning its constitutionality. P. 271 U. S.
3. Ohio Valley Water Co. v. Ben Avon Borough,
253 U. S. 287
distinguished. P. 271 U. S.
185 Wis. 127 affirmed.
Error to a judgment of the Supreme Court of Wisconsin sustaining
an award under the state Workmen's Compensation Act.
Page 271 U. S. 209
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This was a suit begun in the Circuit Court of Dane County,
Wisconsin, to review and set aside findings and award under the
Wisconsin Workmen's Compensation Act of a death benefit in favor of
Mary McLaughlin, as widow of William McLaughlin, against his
employer, the Booth Fisheries Company, and that company's surety,
the Zurich General Accident & Liability Company.
The petition avers that the Industrial Commission, in making the
award, acted without and in excess of its powers in finding that
the personal injuries and death of William McLaughlin were
proximately caused by accident, and not intentionally
self-inflicted, and that this finding was contrary to the evidence
and contrary to the law. The circuit court and the supreme court of
the state held that the findings of fact by the commission were
supported by evidence, and so were conclusive.
The only question raised on the appeal to the Supreme Court of
Wisconsin was the constitutionality under the Fourteenth Amendment
of the Workmen's Compensation Act of Wisconsin in its limitation of
the judicial review of the findings of fact of the Industrial
Commission to cases in which "the findings of fact by the
commission do not support the order or award." Wisconsin Statutes
1921, § 2394-19. This limitation has been held by the state supreme
court to mean that the findings of fact
Page 271 U. S. 210
made by the Industrial Commission are conclusive if there is any
evidence to support them. Northwestern Iron Co. v. Industrial
154 Wis. 97; Milwaukee v. Industrial
160 Wis. 238; Milwaukee C. & G. Co. v.
160 Wis. 247; William Rahr Sons Co.
v. Industrial Commission,
166 Wis. 28; Booth Fisheries Co.
v. Industrial Commission,
185 Wis. 127. It follows that the
court may not, in its review, weigh the evidence or set aside the
finding on the ground that it is against the preponderance of the
It is argued that the employer, in a suit for compensation under
the Act, is entitled under the Fourteenth Amendment to his day in
court, and that he does not secure it unless he may submit to a
court the question of the preponderance of the evidence on the
A complete answer to this claim is found in the elective or
voluntary character of the Wisconsin Compensation Act. That Act
provides that every employer who has elected to do so shall become
subject to the Act, that such election shall be made by filing a
written statement with the Commission, which shall subject him to
the terms of the law for a year until July 1st following and to
successive terms of one year unless he withdraws. Wisconsin Stat.
§§ 2394-3, 2394-4, 2394-5. It is conceded by the counsel for the
plaintiffs in error that the Act is elective, and that it is so is
shown by the decisions of the Wisconsin court in Borgnis v.
147 Wis. 327, 350, and in the present case. 185 Wis.
127. If the employer elects not to accept the provisions of the
Compensation Act, he is not bound to respond in a proceeding before
the Industrial Commission under the Act, but may await a suit for
damages for injuries or wrongful death by the person claiming
recovery therefor, and make his defense at law before a court in
which the issues of fact and law are to be tried by jury. In view
of such an opportunity
Page 271 U. S. 211
for choice, the employer who elects to accept the law may not
complain that in the plan for assessing the employer's compensation
for injury sustained, there is no particular form of judicial
review. This is clearly settled by the decision of this Court in
Hawkins v. Bleakly, 243 U. S. 210
243 U. S.
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. Daniels v. Tearney, 102 U.
; Grand Rapids & I. R. Co. v. Osborn,
193 U. S. 17
The counsel for the plaintiff in error relies chiefly on the
case of Ohio Valley Water Co. v. Ben Avon Borough,
253 U. S. 287
That case does not apply. An order of a public service Commission
in fixing maximum rates for a water company was there attacked on
the ground that the rates fixed were confiscatory. It was held that
the law creating the Commission, which had operated to withhold
opportunity for appeal to the courts to determine the question, as
a matter of fact and law, whether the rates were confiscatory,
could not be sustained, and was in conflict with the due process
clause of the Fourteenth Amendment. But, in that case, the water
company was denied opportunity to resort to a court to test the
question of the confiscatory character of its rates and of its
right to earn an adequate income. Here, the employer was given an
election to defend against a full court proceeding, but accepted
the alternative of the Compensation Act.
The judgment of the Supreme Court of Wisconsin is