
    HOWARD et al. v. MONAHAN, Deputy Com’r.
    District Court, S. D. Texas, at Houston.
    May 30, 1929.
    No. 335.
    Cole, Cole, Patterson & Kemper, of Houston, Tex., for plaintiffs.
    Royston & Rayzor, of Houston, Tex., for defendant.
   HUTCHESON, District Judge.

At a former term of this court a final decree was entered denying the relief in part and in part remanding the ease to the Deputy Commissioner. At the same term plaintiff filed her motion for rehearing, praying that the court set aside and vacate so much of its judgment as was adverse to plaintiff, which motion was by the court taken under advisement and carried over until the present term of this court.

On the hearing of that motion it was brought to the attention of the court that the Compensation Commission had issued instructions prior to the hearing of this cause by the Deputy Commissioner, requiring the commissioner to make fact findings, which instructions provided as follows: “Such compensation orders should contain full and complete findings of fact without conclusions, discussion or argument, and the award granting compensation or rejecting the claim should be the conclusion or judgment without reeiting facts or quoting the law.”

That these instructions were repeated, in substance, in the following form: “All material facts must be in findings of fact and not in the award of" compensation or rejection of the claim.”

Thereafter plaintiff made application tc amend the original pleading to set out and embody therein the orders and instructions above referred to, which amendment the court allowed.

Upon the pleadings as amended plaintiff now asserts not only that the award was invalid apart from the instructions, but by reason of the violation of the instructions it was also made clearly invalid.

Upon the original hearing of this matter I reached the conclusion, and in an opinion declared that the proper practice in such hearings before a commissioner required findings of fact, but that since the statute did not require such-findings and merely authorized the setting aside of the award if contrary to law, if the award were set aside because of failure to find such fact findings, the court would be adding a term to the statute.

In view of the undoubted wisdom, if not necessity, of filing such findings of fact as adverted to in a former opinion in this case, and in view of the instructions issued by the commission to file specific findings of fact, which instructions were in this case violated, I think it entirely plain that the action of the commissioner in this ease was contrary to the due administration of the law, and that the former judgment in this cause should be set aside and judgment now rendered vacating the award of the commissioner and sending the cause back for further trial in accordance with law.

That the matter of findings was embodied in instructions rather than rules and regulations, I do not find material.

The statute was intended to be remedial, and to give speedy justice while preserving substantial rights. And in view of the large powers given to the commissioner and the narrow limits within which a review is allowed, it is essential to due process in such cases that the commissioner conduct his proceedings in accordance not only with the law, but with the rules laid down and the instructions issued by the commission itself.

Section 939 of the Longshoremen’s Act (33 USCA § 901 et seq.) provides that: “The United States Employees’ Compensation Commission shall administer the provisions of this chapter, and for such purpose the Commission is authorized to make such rules and regulations * * * as may be necessary in the administration of this Act.” And to contend that because these directions for the proper disposition of the substantial rights of the parties involved were by the commission called “Instructions” instead of “Rules and Regulations” deprives them of authoritative effect is a “sticking in the bark.”

Let a decree be prepared and presented within 10 days in accordance with this opinion.  