Mr. Sanborn: That is what I understand this section, as now worded, would embrace.
Chairman Mercer: Yes.
Senator John J. Blaine (Wisconsin): The point that worries me as much as anything, is the question as to whether it is a dangerous occupation. This first section provides that every employer conducting an employment in which there hereafter occurs bodily injuries is defined to be conducting a dangerous employment. Is there any substantial difference between saying it in those words and saying that every occupation is dangerous, because I do not believe that we can conceive of any occupation that is not dangerous or in which no accidents occur. Even a school boy stubs his toe on the street. It is not in and of itself a dangerous occupation, but he accidentally gets hurt. Now, where an employment in and of itself would not be dangerous, but where through some unforeseen circumstance an accident should occur, would that fact of itself make an industry a hazardous industry?
Chairman Mercer: When they covered that matter in England, I understand the definition was that the accident might occur in the course of the industry and not occur outside of it; it might occur outside of it and not occur within it. For instance, you might start to go to work, if you are a laborer, and after you got on the ground you might be traveling along the same as any other member of the public. You would be going to your employment but you would not be within the course of it. That is the way they defined it over there, and in that case the accident would be treated simply in the same way as an accident to any other member of the public. They might suffer an accident and yet there would not be a liability to the employer.
Senator Blaine: The point I can't distinguish is this: That the mere fact that an injury happens to an employment, that in and of itself makes that employment dangerous, any more than every industry is dangerous.
Chairman Mercer: It has got to occur within the employment; that is, it has got to be a result of the employment to make it dangerous.
Senator Blaine: In the first place, is it possible to conceive of any employment where there is not a hazard growing out of the employment? If that is true, why not say that every employer shall compensate under the terms of the act, regardless of whether he is engaged in a hazardous occupation or not. In other words, can you define a hazardous occupation by a legislative act? Will not that in the end be the point around which the whole question will revolve; i. e., is it not as a matter of fact from the evidence produced, a dangerous occupation, no matter whether accidents have or have not resulted?
For that reason is it not quite impossible to define a hazardous occupation?
Chairman Mercer: That question in fact is first determined by the Legislature, as I understand it, as to whether it is a dangerous employment.
Senator Blaine: Can the Legislature intrude upon the judicial functions of our government? Can they say that is a fact or must not the courts do that themselves?