
    The State, ex rel. Caton, v. Industrial Commission of Ohio.
    
      (No. 3783
    Decided February 21, 1945.)
    
      Mr. Hyman 8. Topper, Mr. Isadore Topper and Mr. Abraham Gertner, for relator.
    
      Mr. Thomas J. Herbert, attorney general, Mr. Robert E. Hall and Mr. Albertus B. Conn, for respondent.
   By the Court.

This is an action in mandamus, originating in this court, to. require the respondent to hear and determine relator’s claim upon the merits.

The facts alleged by the relator in his petition are that he sustained certain injuries on May 28, 1935, in the course of and arising out of his employment with the city of Toledo, an employer amenable to the provisions of the Workmen’s Compensation Act. He made out a proof of claim on May 4, 1937, and delivered it to one G-eorge I. Brown, Jr., personnel claims adjuster for the city of Toledo, and he delayed the filing of relator’s application with the' Industrial Commission of Ohio until July 19, 1937, a date more than two years after the alleged injury to the relator. After several hearings, the claim was denied by the Industrial Commission £<on the ground that the application for compensation was not filed within two years from the date of the alleged injury, and the claim is therefore barred under the provisions of General Code Section 1465-72a.”

The relator contends that the date of the filing of his claim was on May 4, 1937, within the two-year period, as it was on that date that he filed it with the claims adjuster for the city.of Toledo, who was an agent by estoppel for the Industrial Commission.

It will be noted that the petition states that the claim was not filed with the Industrial Commission until July 19, 1937.

Section 1465-72a, General Code (108 Ohio Laws, pt. 1, 319), read as follows:

“In all cases of injury or death, claims for compensation shall be forever barred,-unless, within two years after the injury or death, application shall have been made to the Industrial Commission of Ohio or to the employer in the event such employer has elected to pay compensation direct.”

The Workmen’s Compensation Act is in its entirety a statutory provision and grants to workmen and their dependents only the rights specifically enumerated. None of the requirements of this act can be waived. A like issue was adjudicated in State, ex rel. Roger, v. Industrial Commission, 37 Ohio Law Abs., 509, 48 N. E. (2d), 114, where the court held:

‘ ‘ Claimants under the industrial insurance act have only such rights as are prescribed by statute. If provisions of the statute or applicable rules provide things must be done within a certain time, this is jurisdictional and neither the commission nor the courts have any right to waive it.”

The theory of agency by estoppel may not be invoked against the respondent, as there is no claim that the so-called agent was named by it pursuant to any statutory authority.

“The state can act only by its agents, duly authorized by law; and since public officers cannot bind the government they represent by acts outside their express authority, even though within their apparent powers, it is only where officers of the state perform their acts agreeably to the authority delegated them that the state is bound.” 37 Ohio Jurisprudence, 248, Section 24.

The relator has argued quite extensively as to whether the function of the Industrial Commission is governmental or proprietary, but in view of the authorities just quoted we believe that fact to be immaterial. We, therefore, hold that the date the claim was filed with the Industrial Commission is the one that controls and not the date the claim was filed with the claims adjuster for the city of Toledo. The requirements of Section 1465-72®, General Code, were mandatory and must have been complied with.

The demurrer to the petition is sustained and leave is granted to relator to amend within rule.

Demurrer sustained.

Hornbeck, P. J., G-eiger and Miller, JJ., concur.  