
    Slatmeyer v. Industrial Commission of Ohio.
    
      Workmen’s compensation — Failure to comply with specific requirement and additional award — Section 35, Article II, Constitution — Jurisdiction of Industrial Commission — Decision final upon questions of fact but not of law — Constitutional law — Remedy of employer to review granting additional award — Error proceedings do not lie to Supreme Court — Section 871-38, General Code, inapplicable — Employer may contest legal questions when sued for award— Section H65-7JÍ, General Code.
    
    1. Section 35 of Article II of the Ohio Constitution, as amended in 1923, conferred upon the Industrial Commission of Ohio full power and authority to hear and determine “whether or not an injury, disease or death resulted because of the failure of the employer to comply with any specific requirement for the protection of the lives, health or safety of employes, enacted by the General Assembly or in the form of an order adopted by such board;” upon that question of fact the decision of the commission is final. That feature of the Ohio Constitution does not violate the due process clause of the federal Constitution. The Ohio Constitution has not extended such finality of decision to questions of law arising in a proceeding where an additional award is imposed for the failure to comply with such specific requirement.
    2. Séction 871-38, General Code, does not confer upon this court jurisdiction to review the decision of the commission in respect to the imposition of the added award. All questions relating to such additional award, save that upon which the decision of the commission is final, may be heard and determined in a single suit wherein the employer, when sued under Section 1465-74, General Code, for the compensation fixed, may contest the basic legal questions necessary to be determined by the commission before making such additional award. (Pittsburg Coal Co. v. Indus. Comm., 108 Ohio St., 185, 140 N. E., . 684; Gatton v. Indus. Comm., 93 Ohio St., 203, 112 N. E., 503; Fassig v. State ex rel. Turner, Atty. Geni., 95 Ohio St., 232, 116 N. E., 104; and Be Witt v. State ex rel. Crabbe, Atty. Geni., 108 Ohio St., 513, 141 N. E., 551, followed.)
    (No. 19227
    Decided June 8, 1926.)
    Error to the Industrial Commission.
    The facts are stated in the opinion.
    
      Mr. F. W. Kursenberger and Messrs. Niman S Buss, for plaintiff in error.
    
      Mr. C. C. Crabbe, attorney general, Mr. R. R. Zurmehlg and Mr. William E. Benoy, for defendant in error.
    
      Mr. Webb I. Vorys, Mr. Timothy 8. Hogan, Mr. George B. Okey, Mr. Frank H. Ward, and Mr. Warren J. Duffey, amici curies.
    
   Jones, J.

Slatmeyer filed his petition in error in this court, asking for the vacation of an order made by the Industrial Commission, wherein it determined that one of his employes met his death because of the violation by plaintiff in error of a specific requirement; and wherein, because of that determination, it granted an additional award of compensation in an amount equal to 50 per cent, of the original compensable award. To this petition in error the Industrial Commission filed a general demurrer. The cause was submitted to this court upon that demurrer.

The demurrer interposed to the petition in error herein requires the interpretation of Section 35, Article II, of the Ohio Constitution, as amended in 1923, respecting the finality of the Industrial Commission’s decision relating to compliance with specific requirements. So much of the amended constitutional section as is germane thereto reads as follows:

“Such hoard shall have full power and authority to hear and determine whether or not an injury, disease or death resulted because of the failure of the employer to comply with any specific requirement for the protection of the lives, health or safety of employes, enacted by the General Assembly or in the form of an order adopted by such board, and its decision shall be final. ’ ’

The paramount question to be determined by this court is: To what extent is the commission’s decision final respecting specific requirements, and does that finality of decision extend to both questions of fact and questions of law?

The language of the amendment is the pole-star of this interpretation. Under it the commission has been given full power and authority “to hear and determine whether or not an injury, disease or death resulted because of the failure of the employer to comply with any specific requirement.” We are of the unanimous opinion that upon that question of fact the decision of the commission is final; but its'finality extends only to the determination whether, in fact, the injury, etc., resulted because of the failure to comply with such specific requirement. The state having created, under its Constitution, a board of awards for the determination of that question of fact, there is no violation of the due process clause in failing to provide - a judicial review upon that specific feature. The Constitution has committed that question to the exclusive jurisdiction of the Industrial Commission, sitting as a board of awards.

Does the finality of the commission’s decisions extend to questions of law, arising in a proceeding where an additional award is imposed for failure to comply with such specific requirement? In this respect this court holds that it does not. The language of the Constitution is plain. The commitment of finality extends only to the single question of fact to be heard and determined. While the constitutional amendment may have contemplated that the industrial tribunal could dispose of a question of fact as well as a court constituted for that purpose, it no doubt recognized that upon legal, fundamental, or jurisdictional questions, action by a court would be necessary. At all events, no legal questions were committed by the Constitution to the final jurisdiction of the commission. If the original award as well as the added per centum were both attacked by the employer, there is no doubt that the employer would have the right to prove that the employe was not an employe, and that he was not injured at all, or, if injured, that it was by self-infliction, or that the injury did not arise within the course of his employment; and, if successful in either, the basis of the employe’s claim having failed, naturally the added per centum could not be imposed. However, if there was no attack by the employer upon the original award, but the attack was confined solely to the imposition of the added per centum, the constitutional amendment does not deny the right of the employer to question the added award upon jurisdictional, legal, or constitutional grounds. If the added per centum were imposed where no specific requirement was “enacted by the General Assembly or in the form of an order adopted by such board,” manifestly the commission’s finding of failure to comply would be illegal; or if in any manner the jurisdiction of the commission in respect to a specific requirement were attacked, that as well as other legal questions would still remain within the jurisdiction of the courts for the purpose of review, and a denial of judicial process in those respects would be a denial of due process.

A question of procedure, however, is presented by the record. The plaintiff in error in his petition in error has invoked the jurisdiction of the Supreme Court under Section 871-38, General Code, in a case attacking solely the imposition of the added per centum of 50 per cent, upon the award originally made. This court has heretofore held in several cases that an action brought for the purpose of reviewing awards made under the Workmen’s Compensation Act cannot be brought under Section 871-38, General Code. The imposition of the added 50 per cent, is an award just as much as is the original award. The Constitution refers to the added per centum as an “additional award.” It follows, therefore, that, both being denominated awards by the constitutional amendment, the former decisions of this court require that under the Workmen’s Compensation Act fundamental, legal, or constitutional features challenging the right to recover the additional award or per centum can be tried in a suit brought for its recovery, wherein the question of fact, the finality of which has been committed by the recent amendment to the commission for determination, is excluded.

In the case of Pittsburg Coal Co. v. Indus. Comm., 108 Ohio St., 185, 140 N. E., 684, following our previous decisions, this court held that an award cannot be reviewed under Section 871-38, General Code, but that the employer has an adequate remedy under Section 27 of the Workmen’s Compensation Act (Section 1465-74, General Code), when sued for the compensation or award fixed by the board, whereby any fundamental, legal, or basic questions may be determined, and whereby the employer “may contest all jurisdictional facts necessary to be determined by the commission before making an award for compensation.” This decision was based upon the Fassig and Gatton cases previously decided by this court, which cases are referred to in the Pittsburg Coal Co. case.

Five months later, in a case where the employer was sued for the amount of an award, together with an added 50 per cent, penalty, this court fully sanctioned the remedy employed in the Pittsburg Coal Co. case, supra, and determined the constitutional validity whereby the penalty was imposed. De Witt v. State ex rel. Crabbe, Atty. Gen., 108 Ohio St., 513, 141 N. E., 551.

It is sought to invoke the case of Clemmer & Johnson Co. v. Indus. Comm., 112 Ohio St., 421, 147 N. E., 518, as an authority for bringing this cause by direct action .under Section 871-38, General Code. That section of the Code is found in chapter 9a of division 2, of title 3, of Page’s Annotated Code, chapter 10 of division 2, of title 3, of Throckmorton’s Annotated Code, Section 38 of the Industrial Commission Act (103 O. L., 95), whereby a review of the orders of the commission may be made under the provisions of that chapter. This action is determined by the Workmen’s Compensation Act, whereby, under chapter 28b of division 2, of title 3 of the Code, it is sought to review an award made by the commission sitting as a state liability board of awards under the Workmen’s Compensation Act. In the Clemmer & Johnson Co. v. Indus. Comm. case, supra, the distinction was clearly made between that case and the Catton and Pittsburg Coal Co. cases, supra.

Many reasons might be suggested why Section 871-38, General Code, is not remedially available under the Workmen’s Compensation Act.

1. That section gives an “employer, or other person in interest,” who is dissatisfied with the commission’s order, the right of a direct action in the Supreme Court. The employe is as much interested in the decision of the commission as is the employer, but no one can consistently urge that the employe can avail himself of the remedy under that section, for the reason that a specific remedy is provided by Section 1465-90, General Code, by an appeal to the common pleas court from an adverse decision of the commission. It is not conceivable that after such adverse decision, a claimant could prosecute error thereto to the Supreme Court, and also take an appeal to the common pleas court under Section 1465-90, General Code. The adoption of the specific remedy given by the latter section negatives the employment of any other remedy.

2. Under Section 1465-90, General Code, the employe is given the right to appeal to the common pleas court from a basic decision of the commission. Thereby he may acquire the judgment of the common pleas, the Court of Appeals, and the Supreme Court, while under the construction contended for here by the plaintiff in error the employer would be given but one right of review, and that under Section 871-38, General Code. It is impossible to construe these sections in such a manner as to grant to the employe the processes of three courts and to the employer the process of but a single court.

3. But there is a more forceful reason than either of the two preceding for the denial of the application of Section 871-38, General Code, to specific requirement awards. Under our former decisions, heretofore alluded to, the employer must await suit for recovery of the award. Pittsburg Coal Co. v. Indus. Comm., and other cases, supra.

Now let us assume that an injured employe has filed his claim for injuries based upon the violation of a specific requirement, and that the employer defends upon a basic ground that the injury was self-inflicted, or that it was not sustained in the course of employment; that, notwithstanding the defenses of the employer, the commission finds in favor of the claimant, grants him an award, and imposes an additional penalty or award for violation of the specific requirement. This is done, of course, in a single proceeding before the commission. What is the employer to do? Must he split his defenses into separate suits? Must he await suit for recovery of the principal award under Section 1465-74, General Code, as decided in the Pittsburg Coal Co. case? Must he institute error in a separate and direct action under Section 871-38, General Code, because of the imposition by the commission of the additional award? Since both the award and the additional award were granted in a single proceeding before the commission, harmony of procedure would require that the employer should await suit for the collection of both the award and the additional award, and in that suit stand upon his defenses, which, if sustained by the court, would bar recovery of both the award and the additional award so imposed. In such suit, if the injury was found to be self-inflicted, or not sustained in the course of employment, necessarily both the award and the additional award, depending thereon, imposed by the commission, would be invalid. Thus, in a single suit, questions of law and fact would be available to both parties, save only the question of fact which the constitutional amendment has placed within the final jurisdiction of the commission as herein indicated. It can readily be perceived that often the real defenses against the imposition of the added award might rest upon the insistence of the employer that the commission should not allow any award; if so, of course, no additional award •would be available under the constitutional provision.

Disposing of the remedial question only, we hold that the plaintiff in error cannot invoke the jurisdiction of this court under Section 871-38, G-eneral Code, for the purpose of attacking the added award, and for that reason only the demurrer to the petition in error will be sustained. Any legal questions that he may have respecting the added per centum, not involving such questions of fact, over which the commission has final jurisdiction, may be decided in an action to recover the amount of the added compensation or award fixed by the commission.

Demurrer sustained.

Matthias, Day and Kinkade, JJ., concur.

Robinson, J., concurs in proposition 1 of the syllabus, but not in proposition 2, nor in the judgment.

Marshall, C. J.,

dissenting. . I am in accord with the first paragraph of the syllabus which declares that the amendment to Section 35 of Article II of the Constitution, which became effective January 1, 1924, confers final jurisdiction upon the Industrial Commission to determine only questions of fact, and that all questions of law which are such as are usually denominated justiciable are entitled to a judicial review.

I emphatically dissent from the second syllabus, which disposes of this proceeding upon procedural grounds resulting in the dismissal of the proceeding.

The conclusion reached by the majority is that the court has no jurisdiction over such a controversy under the provisions of Section 871-38, General Code, and, while I deny this proposition, I insist that, the majority of the court having so declared, the court had no right thereafter to lay down any alleged principles of law for the purpose of advising parties how they might proceed in some other action, and declaring the principles of law which would govern such other proceeding, or to definitely pass upon the procedure in such other proceeding. Unless it be conceded that this court has the right to enter declaratory judgments, all such extraneous discussion should await the submission to this court of some controversy in which those questions are directly involved and in which they are material to the disposition thereof.

This opinion, having the concurrence of a majority of the members of this court, authoritatively determines that this court will not entertain jurisdiction to review an order of the commission in the imposition of a penalty based upon the failure to observe a specific requirement, by virtue of Section 871-38, General Code, but the further declarations of the majority opinion on questions of practice, and by way of advising employers to wait an action to recover such penalty in some court of general jurisdiction, and further advising employers that they may make certain valid defenses thereto, are purely obiter, and all such expressions are likely to become a source of considerable embarrassment to this court in future cases. This court should not make such declarations, because the questions have not been argued by counsel in the instant case, and, even if they had been so argued, they would not foreclose serious argument of counsel in future cases in which the same questions will be involved and in which the parties will have a controversy involving rights of property to which those principles will be directly applicable. That all such principles should not be declared in an obiter statement, thereby foreclosing parties in future controversies, is a principle too well settled to require serious discussion.

It is true that in the case of Gatton v. Indus. Comm., 93 Ohio St., 203, 112 N. E., 503, this court held that a disappointed workman, after having failed to get the relief he sought before the Industrial Commission, could not have a review of the Industrial Commission’s order in this court under Section 871-38, General Code, but that decision was based solely upon the right of appeal which was given to the injured workman to carry his case to the court of common pleas. That remedy not having been pursued by the workman, he was properly denied a review in this court. In the case of Fassig v. State ex rel. Turner, Atty. Gen., 95 Ohio St., 232, 116 N. E., 104, referred to in the majority opinion, there had been a recovery by an injured workman, before the Industrial Commission, against an employer who was not a contributor to the state insurance fund, and who had not been granted the privilege to directly compensate his injured employes. This case was decided in 1917, and by unanimous concurrence of the court as then constituted. After recovery of a finding by the commission, an action was brought under Section 1465-74, General Code, to recover the award for the benefit of the injured employe, and this court held that the employer might defend and that he might make any defense except as to the amount of the award, but that as to the amount the determination of the commission was final. There is some discussion in the opinion by way of interpretation of Section 1465-74, which reads into that section certain provisions which the Legislature never expressed. There is no occasion, however, for criticizing that decision in the instant case, because Section 1465-74 relates only to the kind and character of awards referred to in that section, to wit, where the employer is not insured, and where the employer is a self-insurer. That authority can, therefore, have no bearing upon the instant controversy.

The next case referred to in the majority opinion is that of Pittsburg Coal Co. v. Indus. Comm., 108 Ohio St., 185, 140 N. E., 684. In that case an award had been made by the Industrial Commission against an employer, and, without waiting for the Attorney General to bring an action under Section 1465-74, the employer filed an action in this court under Section 871-38, General Code, and by a divided court it was held that this court had no jurisdiction to review the award of the Industrial Commission under that section, and in the second paragraph of the syllabus the court again declared that Section 1465-74 provided an adequate remedy, and declared that the employer might contest all jurisdictional facts which it was necessary for the commission to determine in making an award of compensation. Again we say that this court was reading something into Section 1465-74 which the Legislature had never expressed, and again we say that it is not necessary to complain of that decision of this court, in the instant controversy, because it has no necessary application thereto.

The next case referred to in the majority opinion is De Witt v. State ex rel. Crabbe, Atty. Gen., 108 Ohio St., 513, 141 N. E., 551. It is said that this court fully sanctioned the remedy employed in the Pittsburg Coal Go. case. The answer to that statement is that only two members of this court concurred in the third syllabus where the declaration was made, and Marshall, C. J., Robinson, Jones, Matthias, and Day, JJ., dissented therefrom. Even if the proposition had been so decided in the De Witt case, it is wholly dissimilar to the present controversy. All of the foregoing cases were proceedings to bring under review an award of the commission for compensation to an injured employe, where no element of failure to observe a specific requirement was involved.

In the case of Clemmer & Johnson Co. v. Indus. Comm., 112 Ohio St., 421, 147 N. E., 518, there was involved for the first time in this court the question of the right to review an award of the Industrial Commission for the failure to observe a specific requirement, under Section 35 of Article II of the Constitution, which became effective January 1, 1924, and this court, by unanimous concurrence, distinguished such a case from all the other cases theretofore decided, and overruled a demurrer to the petition and thereby entertaind jurisdiction of the proceeding, which was filed under Section 871-38, General Code. It is true, as stated in the majority opinion, that the judgment was based upon a determination of the illegality of the “specific requirement” upon which the Industrial Commission based its award. The case was, therefore, on all fours with the instant case; it being claimed by the employer, and it being decided by this court, that a legal question was involved, and that the judgment of the commission was not final, but that it must be reversed becausé of its erroneous determination of a legal question. The Clemmer & Johnson decision, supra, was in every sense sound in distinguishing that case from the former decisions of this court, and it was equally sound in holding that where a legal question is involved this court should entertain the proceeding, under Section 871-38, and set aside and vacate the award of the commission, on the ground of being unlawful. Having definitely distinguished the Clemmer & Johnson case from the former decisions, and having declared by unanimous concurrence of the members of this court that Section 871-38 does confer jurisdiction upon this court to review awards of the commission, under the recent' constitutional amendment, this court, by the present decision, has shown a decided trend toward judicial instability in addition to declaring what I conceive to be an unsound principle.

Even if this court could rightfully declare that two remedies are open to the employer, affording relief against an unreasonable and an unlawful award, and even though the court might choose to decline to entertain jurisdiction under Section 871-38, and elect to remit the employer to a remedy by way of a defense to an action brought under the alleged authority of Section 1465-74, it would be disastrous to the employers of the state, and would place them at the mercy of the Industrial Commission. Any employer who is insured would be compelled to pay the award under penalty of having his insurance revoked, and, even though he might feel reasonably sure of being successful in defending an action to recover the money, he would hardly dare to incur the risk of being without insurance during the months or possibly years during which the case might straggle through the courts. And, even though he might eventually be successful in resisting such an action and be restored to his rights to state insurance, no employer could afford to be without such protection during the interim. The situation would be even more disastrous to those who are permitted to carry their own risks under authority of the statute. These fears are not merely problematical. They have become quite real, and have been demonstrated by the decision of this court announced on March 16, 1926, in cause No. 19376, State, ex rel. Firestone Tire & Rubber Co. v. Indus. Comm., 114 Ohio St., 702, 152 N. E., 656. In that ease the Industrial Commission threatened to revoke the authority of the Firestone Company to carry its own insurance, and, upon that company prosecuting a prohibition suit in this court, the writ was denied, and properly so, on the ground that prohibition does not lie in such case. This court having declared in that case that the writ of prohibition does not afford a remedy, it has been extra judicially suggested in the instant case that the writ of mandamus might be available to compel the Industrial Commission to receive premiums, and to continue the authority to self-insurers, pending a determination of the validity of the award of the commission. It requires no argument to show that the writ of mandamus is not available, because it can only be invoked to enforce a clear legal right, and there can be no clear legal right, because the statute specifically gives the commission power to revoke insurance upon the failure of an employer to comply with an order of the commission. It has also been suggested that the commission could be enjoined from revoking the insurance of employers. Again the statute denies the right of any court to issue an injunction against any order of the commission, and, inasmuch as the Legislature has undisputed power to define the extent of the jurisdiction of courts of common pleas, it has a right to take away the jurisdiction in matters of injunction, and it is equally undeniable that Courts of Appeals and the Supreme Court have no power to enjoin. Even if those remedies were available, they would only be ancillary, and could do no more than hold the matter in statu quo until the main question of the right to recover upon the award of the commission should be determined.

The injustice of any decision that there can be no direct review of the award of the commission is further shown by the fact that the Constitution itself provides that an award must be paid out of the state insurance fund, and that afterward the fund may be recouped by collections from the employer. In the event there should be no recovery in an independent action, the fund, and therefore other employers, would be compelled to pay awards of such delinquent employer. This is a potent additional reason why there should be a final determination of the award of the commission, in a direct review, before any payment should be made to the injured employe.

If the award of the commission is reviewed under Section 871-38, there will be a prompt and final determination of the legality of the award, and, in the course of a few months at the farthest, the claimant can receive the amount of the award, while, on the other hand, if it is left for a suit to be brought in the trial courts of any one of the 88 counties of the state, it would probably be two years before the case could run the gauntlet of all the courts and become a finality. While this court has in an obiter statement declared that an employer can defend an action to recover, this court has not declared in detail the different defenses that may be open, neither can this court declare in advance the functions of the jury in such proceedings, and it is conceivable that the way is open for bringing to this court for review literally hundreds of difficult legal questions of procedure and practice, as well as disputed legal principles, with the accompanying duty of rendering uniform the 88 varieties of determinations of such questions of practice, procedure, and substantive law as may be declared by the 88 counties of the state while they are floundering in the “slough of despond” in which the majority opinion in this case has enveloped them.

During the two and one-half years since this amendment went into effect, only four cases have come to this court, and it will not involve this court in very much labor to finally determine a few legal principles for the guidance of the commission. But, even if this court should be involved in a number of cases before these principles become settled and the limitations of the authority of the commission carefully defined, this court should willingly assume the burdens.

A more potent reason than any of the foregoing why the majority opinion is unsound is that any defense to an action in a collateral proceeding to recover an award from an employer would be a collateral attack upon a judgment, and, unless it can be shown that the award is a void order, there can be no collateral attack. The principle that judgments cannot be collaterally impeached for irregularities or errors in their rendition, in which the jurisdiction of the cause or of the parties was not involved, is too well settled to admit of argument or require citation of authority. Any judgment which might be set aside or annulled on a proper direct appeal or error proceeding, but where the court had jurisdiction of the cause and of the parties, is not subject to collateral impeachment so long as it stands unreversed and in force. It is equally well settled by universal authority that the rule applies even though no provision is made for a review. It is equally well settled that the principles of immunity from collateral attack apply to the determination of state and county officers, or boards of officers, who, although not constituting a court, are called upon to act judicially in matters of administration, such as boards of county commissioners, boards of land commissioners or railroad commissioners, city councils, highway officials, school boards, election contest tribunals, state boards of equalization, police boards, immigration officers, and local draft boards.

To declare, as the majority opinion does declare, that a collateral attack may be made upon the award of the Industrial Commission by defending an action brought to recover the award, and that in such an action the employer may raise any legal question, even though the same may not be jurisdictional, is to place this court in an isolated position as declaring something which is absolutely contrary to the decisions of every other court in the country, including the United States Supreme Court, and contrary to previous decisions of this court. Clearly this court has a right to take that position if it believes all other courts to be wrong and believes the former decisions of this court to be wrong, but surely such a declaration should not be made as an obiter statement, or as a declaratory principle, where it is not directly involved in the controversy under consideration.

The foregoing principles on the subject of collateral attack upon judgments are not controverted by any of the members of this court who concur in the majority opinion, and, of course, they cannot be controverted, because they are supported by the uniform and uncontradicted pronouncements of hundreds of cases.

In leaving the employers of the state without a remedy, this court has been compelled to resort to judicial legislation by reading matter into Section 1465-74, General Code, which the Legislature did not incorporate in the section, and apparently had no intention of doing, and has applied the provisions of that section to subjects having no reasonable relation to the subject-matter of that section. This court has had this matter under consideration approximately seven months since it was finally submitted for the court’s determination, and, having had the matter under careful consideration all of that time, I can see this matter in only one light, viz., that a great wrong has been done to the employers in remanding them to a defense in a separate suit to be brought for recovery of the penalty, when such defense must be limited to such matters as would tend to show that the order of the commission is absolutely void, in which action any erroneous conclusions of law declared by the commission could be no defense.

Workmen’s compensation is compulsory in Ohio, and the penalty provided in Section 35 of Article II of the Constitution is an adjunct thereof. The most ample provision having been made for appeal by injured and killed employes, a denial of a direct review becomes a gross discrimination against employers. The Legislature never intended any such discrimination, and therefore enacted Section 871-38, General Code, which clearly provided for a direct review, and this court has so declared in the Clemmer & Johnson case, supra. The wrong committed by the majority opinion is therefore the more flagrant, because the discrimination is judicial rather than legislative.  