
    Smith v. The Industrial Commission of Ohio.
    
      Workmen’s compensation — Section 35, Article II, Constitution, 1912 —Validity of Section 27 of compensation act (103 O. L., 72, 82)— Employer entitled, to trial by jury, when.
    
    (No. 15431
    Decided January 23, 1917.)
    In Prohibition.
    This is a petition for prohibition filed by Daniel M. Smith against the Industrial Commission of Ohio. The petition alleges that on or about September 15, T916, one Ben E. Smith filed his claim against this plaintiff before said commission because of injuries received by him while in the. employ of plaintiff, whereby his right eye was destroyed and left eye affected; that said application for compensation was made under Section 27 of the workmen’s compensation act of Ohio; that plaintiff herein filed his answer with the commission denying the jurisdiction of the said commission over plaintiff or the subject-matter in controversy; that said answer set forth that plaintiff was not a subscriber to said state insurance fund, and had not elected to pay compensation under the provision of Section 22 of said act; that his answer further denied that he was an employer of a sufficient number of employes at the date of said injury to bring him within the terms and. conditions of said statute; that the commission afterwards announced its decision and found that said employer had not taken out insurance in the state department, that he was an employer of labor, and, on the date of the injury of Ben E. Smith while in his employ, had more than five men in his employ, and that because of his failure to take out such insurance and pay the premium, or elect to pay insurance, as provided in the law, he became indebted to said Ben E. Smith in a large sum of money; that notice to this effect was received by this plaintiff on October 12, 1916; and that the defendant is about to attempt to enforce said order and direct the attorney general of the ' state to bring an action against this plaintiff for the recovery of the amount fixed, with fifty per cent, penalty. Plaintiff further avers that all of said proceedings are and have been unlawful and void because of the unconstitutionality of said Section 27.
    
    The prayer of the petition is that a writ of prohibition may issue from this court restraining the defendant from proceeding further in the prosecution of said claim, that said award and order may be declared null and void, and for such other and further relief as is right and proper.
    The attorney general filed a demurrer to the petition, which was argued by counsel and submitted to the court.
    
      Mr. P. M. Smith, for plaintiff.
    
      Mr. E. C. Turner, attorney general; Mr. John G Price and Mr. Eugene Carlin, for defendant.
   Johnson, J.

Substantially the same objections to the validity of Section 27 of the act referred to are urged by counsel for the plaintiff as were presented to this court in the case of Fassig v. The State, ex rel. Turner, Atty. Genl., decided this day.

For the reasons given in the opinion in that case the demurrer to the petition in this case will be sustained and the petition dismissed.

Petition dismissed.

Nichols, C. J., Wanamaker, Newman, Jones, Matthias and Donahue, JJ., concur.  