Utah Fuel Co. v. Ind. Comm. of Utah , 73 Utah 199 ( 1928 )

On Rehearing. On petition of the plaintiff a rehearing was granted, the case reargued and further examined. The petition was supported by an affidavit of counsel for plaintiff that within 30 days after plaintiff's motion or petition for a rehearing before the commission was denied, counsel for plaintiff, at the office of the commission, inquired of a stenographer of the commission, what, if any, ruling had been made by the commission on plaintiff's motion and was informed that no ruling had been made and that counsel had neither knowledge nor notice of the ruling until after the 30 days had expired.

Because of that and because of the claim that the time prescribed by the statute in which an application may be made to this court for a writ to review proceedings before the Industrial Commission is not mandatory, at most merely advisory and not binding on this court in the exercise of its 7 original jurisdiction and of judicial powers in such respect conferred on it by the Constitution, to support which, among other cases and authorities, are cited State ex rel.Robinson v. Durand, 36 Utah 93, 104 P. 760, 15 C.J. 731,Swift v. Wayne Circuit Judges, 64 Mich. 479, 31 N.W. 434,Neil v. Pub. Utilities Com., 32 Idaho 44, 178 P. 271, Pac.Tel., etc., Co. v. Eshleman, 166 Cal. 640, 137 P. 1119, 50 L.R.A. (N.S.) 652, Ann. Cas. 1915C, 822, Public Service Com. v.Kansas Gas, etc., Co., 121 Kan. 14, 246 P. 178, and CompleteBldg. Show Co. v. Albertson, 99 Ohio St. 11, 121 N.E. 817, it is urged that it is within the power of this court to entertain the application for a review and to review the proceedings on the merits. As to this the court is divided.

The views expressed in the Durand Case and the ruling therein made, as well as the views generally stated in the other cited cases, are not disapproved but approved. It, however, is the view of a majority of the court, of THURMAN, C.J., CHERRY, J., and GIDEON, J., that the act fixing the time within which an application may be made to this court for the writ does not infringe upon the judicial powers of this court conferred upon it by the Constitution, and thus the cited cases have no application, and that the question in hand is controlled by the Heledakis Case and cases there cited to which HANSEN, J., and STRAUP, J., dissent. Thus as to such question the view entertained by a majority of the court leads to the same conclusion heretofore reached.

Thus because of the Heledakis Case an application not made to this court within the prescribed time of 30 days does not confer jurisdiction on this court, either original or otherwise, to review proceedings of the commission by certiorari or otherwise.

Since, as ruled in the Heledakis Case that the statute prescribing the time within which an application may be made to this court for a review is analogous to our general appeal statute and governed by the same principles and which time cannot be extended nor relief granted in case of a 8 failure to proceed in time, unless expressly authorized by statute, the further question is, Is this court authorized to relieve the plaintiff because of the misinformation given it? Confessedly there is no express statute authorizing it. On the theory that the time prescribed for a review is to be governed by the same principles as our appeal statute and as ruled in the Heledakis Case, we see no authority in the co-called inherent power of courts to grant the relief, much as we may here feel the need of the existence of such a power. If it was competent for the Legislature in such particular to so prescribe our original jurisdiction of a cause, we must yield to such legislative will. It is not within our province to read something into the statute not found there, nor to carve out exceptions to meet hard cases.

Thus the original order made by us dismissing the writ is affirmed.