
    No. 17782
    Frank De Witt et al v. the State, ex rel C. C. Crabbe; Atty. Gen., on behalf of Mrs. Hoyt M. Hurley.
    Error to the Court of Appeals of ayette county.
    54. WORKMEN’S COMPENSATION.
    Employer of five or more workmen considered, un-ir 1465-61 GC., as an independent contractor— lassification and defining of employees, under this is constitutional — The provisions of 1465-74 bviding for determination of amount due in-red workmen, by Industrial Commission, and penly for nonpayment of awards, are not repugnant Art. XIV, Sec. 2, Fed. Const., nor Art. I, Sec.16, 11 of Rights, Ohio Const.
   1. A person, himself employing five or more work-en regularly, is considered as the employer of e employee of an independent contractor within e meaning of paragraph 3 of Section 1465-61, Genal Code, where the latter also employs five or more >rkmen regularly and has failed to pay into the nd, or to pay compensation direct, unless such em->yee or his legal representative or beneficiary has cted, after injury or death, to regard the inde-ndent contractor as the employer.

I. The legislature had ample power, under the visions of Section 35, Article II, of the Ohio Con-tution, to enact paragraph 3 of Section 1465-61, ■^fcl Code, classifying and defining employees of ¡HTependent contractor as employees of the prinal contractor. Such paragraph is a valid con-;utional law.

I. The provision of Section 1465-74 of the General lej 'that when an injured employee, whose em-yer has failed to comply with the Workmen’s npensation Act, or his dependent, has filed ap-¡ation for compensation in place of filing a civil ion, and compensation has been awarded by the ustrial Commission, “the amount of the com-: sation which said board may ascertain and de-nine to be due to such injured employee, or to dependents in case death has ensued shall be 1 by such employer to the person entitled reto within ten days after receiving notice of the >unt thereof as fixed and determined by the board; in the event of the failure, neglect or refusal of employer to pay such compensation to the per-entitled thereto, within said period of ten days, same shall constitute a liquidated claim for rnges' against such employer in the amount so rtained and fixed by the board, which with an added penalty of fifty per centum, may be recovered in an action in the name of the state for the benefit of the person or persons entitled to the same,” is a valid and constitutional enactment not repugnant to Section 1 of Article XIV of the Federal Constitution, nor to Section 16 of Article I of the Bill of Rights of the Ohio Constitution.

Judgment affirmed.

Marshall, C. J., Wanamaker, Robinson, Jones Matthias, Day and Allen, JJ., concur in propositions 1 and 2 of the syllabus.

Wannamaker and Allen, JJ., being of the opinion that Section 1465-74, General Code, is constitutional, concur in proposition 3 of the syllabus, which proposition is the law of the case under Section 2, Article IV of the Ohio Constitution.

Marshall, C. J., Robinson, Jones, Matthias and Day, JJ., dissent from proposition 3 of the syllabus.  