
    The Clemmer & Johnson Co. v. Industrial Commission of Ohio.
    
      Industrial Commission — General orders not effective until 80 days after publication — Section 871-26, General Code — Supreme Court — Jurisdiction to review general orders of commission — Section 871-88, General Code — Penalizing employer for violating specific requirement — Section 85, Article 11, Constitution — Penalty for violation within less than SO days from publication, unlawful.
    
    1. General orders of the Industrial Commission, enacted pursuant to Section 871-26, General Code, do not become effective until 30 days after their publication.
    2. This court, pursuant to Section 871-38, General Code, has jurisdiction, upon the application of an employer or other person in interest, to set aside, vacate or amend a general order of the Industrial Commission, on the ground that the order is unreasonable or unlawful, if it involves a violation of the Industrial Commission Act, General Code Sections 871-1 to 871-45, inclusive.
    3. Where the Industrial Commission has issued a general order pursuant to Section 871-26, General Code, and there is a claimed violation thereof within less than 30 days from the date of its publication, such violation can not be made the basis of the assessment of a penalty as a violation of a special requirement pursuant to amendment of Article II, Section 35, effective January 1, 1924, of the Constitution of Ohio, and an order based upon such violation assessing a penalty is “unlawful,” and subject to review by this court under Section 871-38. (Gatton v. Industrial Comm., 98 Ohio St., 203, 112 N. E., 503, and Pittsburg Coal Co. v. Industrial Comm., 108 Ohio St., 186, 140 N. E., 684, distinguished.)
    (No. 18871
    Decided April 21, 1925.)
    
       Workmen’s Compensation Acts, C. J. § 175 (1926 Anno.);  Id., C. J. § 175 (1926 Anno.);  Id., C. J. § 175 (1926 Anno.).
    
      Error to the Industrial Commission.
    This is an action brought under favor of Section 871-38, General Code, in which it is sought to secure a review by this court of a finding and order of the Industrial Commission respecting the operation and effect of a “specific requirement” of the Commission.
    The essential averments of the petition are substantially as follows: That prior to the acts complained of plaintiff, a corporation engaged in building and construction work, had complied with the requirements of the Workmen’s Compensation Law by paying its premium into the state insurance fund. That prior to January 1, 1924, the Industrial Commission had adopted an order containing certain specific requirements relating to building and construction work, which said Commission, by its resolution, attempted to malee effective as of January 1, 1924, notwithstanding the fact that said order was not published or promulgated, as required by Section 871-34, until after January 11, 1924. That on said 11th day of January, 19'24, five of plaintiff’s employes were injured while working upon a scaffold used in connection with the erection of a certain school building, at Kenmore, Ohio. That in due course all of said employes received the ordinary compensation from the state insurance fund to which they were found to be entitled. That thereafter said injured employes made application to the Commission for additional compensation, in the nature of penalties, under authority of Section 35, Article II, of the Ohio Constitution; said applications being based upon the alleged violation by plaintiff of the specific requirements above referred to. That on June 17, 1924, the defendant Commission found and determined that plaintiff had violated the said order of the Commission in respect to said specific requirements, and made and entered the following order in respect to said claims:
    “That the Commission finds the injury was the result of failure on the part of the employer to comply with the provisions of the Safety Scaffold Code and hereby orders compensation equal to 50 per cent, of the amount heretofore paid on account of such injury, be assessed and paid in the manner and at the time the regular compensation is being paid.”
    That thereafter, on July 16, 1924, plaintiff made application for a rehearing, which was denied.
    The defendant Commission demurs to this petition on the ground that the court has no jurisdiction over the subject-matter of the action, and that the petition does not state facts sufficient to constitute a cause of action.
    
      Messrs. Knepper & Wilcox and Mr. P. E. Dempsey, for plaintiff.
    
      Mr. C. C. Crabbe, attorney general, and Mr. R. R. Zurmehly, for defendant.
   Day, J.

Two questions are raised by this demurrer.

1. Was the general order made by the Commission relative to scaffolds, known as the Safety Scaffold Code, promulgated within the time prescribed by law, pursuant to Sections 871-26 and 871-34, General Code ? The former reads:

“All general orders shall take effect within thirty days after their publication. Special orders shall take effect as therein directed. ’ ’

We are advised by counsel in argument that the general order in question was made December 26, 1923, to become effective on January 1 following.

The petition discloses that the accident in question happened on January 11,' 1924, less than 30 days from the date of the general order relative to scaffolds.

It is the claim of the Commission that the language of Section 871-26, “shall take effect within thirty days,” means any period of time fixed by the Commission not over 30 days from the date of said order.

We doubt the correctness of this construction, in view of the fact that the sentence following the provision as to general orders in that section, to wit, “special orders shall take effect as therein directed,” gives to the Commission in that species of orders the power to fix the time when they may become effective, while as to general orders this power in the Commission seems to be withheld, and from the nature of the effect of the order being state wide and generally effective the language “within thirty days” would seem to mean within a period of not less than 30 days after its publication; the purpose doubtless being to grant sufficient time for all employers and employes to learn of the general order in question and the period of 30 days from publication would be none too long for that purpose. The Legislature has granted to the Commission, whenever a lesser period of time is necessary, the authority to fix the time by the granting of a special order in which it may fix such time as in its discretion may seem best.

We have therefore reached the conclusion that the demurrer, in so far as it goes to the effect of the period of time within which the general order as to scaffolds should become effective, must be overruled, and the petition in that regard held to be good.

2. The second question involved is the right of this plaintiff to maintain this action; it being the claim of the Commission that the remedy of the plaintiff, if any, is by way of injunction and not by way of direct review by this court under Section 871-38, General Code. So much of Section 871-38 as is pertinent recites:

“Any employer * * * being dissatisfied with any order of the Commission may commence an action in the Supreme Court of Ohio, against the Commission as defendant to set aside, vacate or amend any such order on the ground that the order is unreasonable or unlawful and the Supreme Court is hereby authorized and vested with exclusive jurisdiction to hear and determine such action.”

Now this action involves a construction of Section 35, Article II, of the Constitution of Ohio, which became operative January 1, 1924, relative to an injury due to the failure of an employer to comply with any specific requirement for the protection of the lives, health, and safety of employes, and the addition of a penalty of not greater than 50 per cent, when such violation is. shown.

. Having- reached the conclusion that the safety scaffold order would not become effective until after 30 days from its publication — and until it became effective there could be no violation of the same — an order of the Commission finding- a violation within a lesser period than 30 days would therefore be unlawful as to the employer. Hence we reach the conclusion that Section 871-38, General Code, is ample to permit the plaintiff to maintain this action.

Under the facts in Gatton v. Industrial Commission, 93 Ohio St., 203, 112 N. E., 503, and Pittsburg Coal Co. v. Industrial Commission, 108 Ohio St., 185, 140 N. E., 684, this court reached the conclusion that its jurisdiction was not sufficient, under Section 871-38, General Code, to permit those actions to be maintained, the plaintiffs having other remedies, but in this case what is here complained of is the unlawfulness of the order of the Commission with respect to the specific requirements as applied to the plaintiff, and this order of the Commission was adopted by virtue of the authority vested in it under Sections 871-22, 871-25, 871-26 and 871-34, General Code, all of which precede Section 871-38.

In the Gatton case it was held that orders made pursuant to the provisions of these subsections preceding subsection 38, being parts of the Industrial Commission Act, rather than of the Workmen’s 'Compensation Act, were reviewable under the provisions of Section 871-38. At page 207 of the Gatton case (112 N. E., 504) the court says:

“Section 38 provides that any employer or other person in interest being dissatisfied with any order of the Commission may commence an action in the Supreme Court of Ohio against the Commission as defendant, to set aside, vacate or amend any such order, on the ground that the order is unreasonable or unlawful, and the Supreme Court is vested with exclusive jurisdiction to hear and determine such action. The proceeding authorized by this section is manifestly one which calls in question the reasonableness or lawfulness of an order of the Industrial Commission touching the matters referred to in the preceding sections.
“The plaintiff in this case seeks to invoke the original jurisdiction, of this court under the provisions of the section (38) just referred to. As pointed out heretofore, his right or claim on account of the injury which he has suffered is fixed by the provisions of a different enactment entirely.”

Gatton’s rights were to be measured by the Workmen’s Compensation Act (Sections 1465-37 to 1465-108, General Code).

The plaintiff here is not seeking a review of the award of compensation under the Workmen’s Compensation Act, as provided by Section 1465-37 et seq. To review such questions other remedies are provided, as is held in Pittsburg Coal Co. v. Industrial Commission, supra, but the sole and only question involved in this action relates to whether or not the order of the Commission in respect to the specific requirement was unlawful for the reason that the same did not become effective until after the period of 30 days from its publication, as provided in Section 871-26; tbe contention being a claimed violation of the Industrial Commission Act and not of the Workmen’s Compensation Act.

Having reached the conclusion that such order would not be effective until after 30 days, we therefore find the same to be unlawful, and hence, no question of amount of compensation or penalty being involved, the application of the Pittsburg Coal Co. case to this case is not in point.

Entertaining the view that this court has jurisdiction to hear and determine the lawfulness of the order of the Commission, made and attempted to be enforced under the provisions of the Industrial Commission Act, and that the order in question was not lawful, it follows that the demurrer to the petition must be overruled.

Demurrer overruled.

Marshall, C. J., Jones, Matthias, Allen, Kinkade and Robinson, JJ., concur.  