State Ex Rel. Crabb v. Olinger , 196 Wash. 308 ( 1938 )

This is the third time this matter has been before this court. The nature and character of the injuries which relator alleges he sustained are fully set forth in Crabb v. Department of Labor Industries, 186 Wash. 505, 58 P.2d 1025, in which we decided that the department would have to entertain the claim referred to therein. Thereafter the supervisor considered the claim on its merits and entered an order February 2, 1937, making award as indicated in the majority opinion.

The employer appealed to the joint board of labor and industries for a rehearing in order to review the actions of the supervisor. Before a rehearing could be had, relator demanded an immediate payment of the compensation award; and when it was refused, he applied to this court for a writ of mandate. The writ was denied for the reason that the claim had not been fully disposed of by the department. State ex rel. Crabb v. Olinger, 191 Wash. 534,71 P.2d 545.

Then, after conducting hearings, at which time the employer was given opportunity to present evidence, the joint board sustained the supervisor's award. The employer then appealed from the order of the joint board to the superior court, and its appeal is still pending.

Relator again demanded payment of the award and, upon being refused, comes here by a petition for a writ of mandate.

The question involved is whether an employee may by mandamus compel the supervisor of industrial insurance to pay an award for workman's compensation after the employer has appealed to the superior court from an order of the joint board allowing the claim.

In order to determine this question, we must ascertain what effect is to be given to the following sentence in Rem. Rev. Stat., § 7697 [P.C. § 3488]: "Except in the case last named an appeal shall not be a stay." It is contended this provision of the statute refers to an appeal to the superior court, and makes it obligatory upon the department to make payment to the claimant of the sum the joint board found to be due him notwithstanding such appeal.

The writer is mindful of the fact that the preamble of the workmen's compensation act, § 1, chapter 74, Laws of 1911, p. 345, Rem. Rev. Stat., § 7673 [P.C. § 3468], declares that the common law system governing the remedy of workmen against employers for injuries received in extrahazardous work was uncertain, slow, and inadequate; and it is clear that the act evidences an intent to render the workmen's remedy more certain, speedy, and adequate. This court is and should be solicitous to give effect to that intent.

The legislature has provided a complete and orderly procedure to expedite the disposition of claims of injured workmen by the department and to insure a final determination thereof by the courts with dispatch.

Relative to appeals, Rem. Rev. Stat., § 7697, provides:

". . . The proceedings in every such appeal shall be informal and summary, but full opportunity to be heard shall be had before judgment is pronounced . . ."

Rem. Rev. Stat., § 7697, provides:

". . . Such application shall set forth in full detail the grounds upon which the applicant considers such order, decision or award is unjust or unlawful, and shall include every issue to be considered by the joint board, and it must contain a detailed statement of facts upon which such claimant, employer or other person relies in support thereof. The claimant, employer or other person shall be deemed to have waived all objections or irregularities concerning the matter on which such rehearing is sought other than those specifically set forth in such application for rehearing or appearing in the records of the department. . . .

"Within thirty days after the final order of the joint board upon such application for rehearing has been communicated to such applicant, or within thirty days after rehearing is deemed denied as herein provided, such applicant may appeal to the superior court of the county of his residence, but upon such appeal may raise only such issues of law or fact as were properly included in his application for rehearing, or in the complete record in the department. On such appeal the hearing shall be de novo, but the appellant shall not be permitted to offer, and the court shall not receive, in support of such appeal, evidence or testimony other than, or in addition to, that offered before the joint board or included in the record filed by the department: .. ."

We held in the case of Hodgen v. Department of Labor Industries, 194 Wash. 541, 78 P.2d 949, that on appeal to this court the hearings are de novo. Our statute, however, plainly indicates that a de novo trial in reviewing the action of the joint board includes such issues of law or fact as were properly included in his application for rehearing or in the complete record of the department, but no more.

The majority opinion correctly observes that, in the present case, we are not concerned with appeals under Rem. Rev. Stat., § 7683 [P.C. § 3477], which relates to injuries occasioned by the absence of any safeguard or protection required to be provided or maintained pursuant to any statute, ordinance, or departmental regulations under any statute.

The majority opinion states:

"In the absence of a bond superseding the order of which the employer complains in the case at bar — in view of Rem. Rev. Stat., § 7697, granting the right of appeal but denying the right to supersede the order — relator may enforce payment by writ of mandamus."

A careful reading of Rem. Rev. Stat., § 7697, compels the writer to conclude that this statute does not so provide.

Rem. Rev. Stat., § 7697, provides in part:

". . . No bond shall be required on such appeal or on appeals to the supreme court, except that an appeal by the employer from a decision of the department under section 7683 shall be ineffectual unless, within five days following the service of notice thereof, a bond, with surety satisfactory to the court, shall be filed, conditioned to perform the judgment of the court. Except in the case last named an appeal shall not be a stay. . .. "

This statute expressly provides that no bond shall be required upon appeal from the final order of the joint board except when a situation arises under Rem. Rev. Stat., § 7683, which is admittedly not involved here.

It does not follow that, because Rem. Rev. Stat., § 7697, does not require the execution of a supersedeas bond, the execution of such a bond is a necessary condition precedent to the perfecting of this appeal. The act is complete in itself and does not depend upon the general statutes relative to civil actions and appeals. The legislature, in providing that no supersedeas bond was necessary, reasonably and properly concluded that the hazards and uncertainty attendant upon purely private litigation were not present in cases in which the disbursements were to be made through the department of labor and industries under the act.

It will be admitted that an administrative body may be empowered to render a final decision without a right of appeal to the courts in the absence of fraud or some flagrant irregularity. Nevertheless, Rem. Rev. Stat., § 7697, expressly gives the employer the right to appeal to the courts, and this court held in the case of Mud Bay Logging Co. v. Department of Labor Industries, 189 Wash. 285, 64 P.2d 1054; id., 193 Wash. 275,75 P.2d 579, that the employer has a right to appeal from the order of the joint board to the superior court, and from that court to this court.

The respondent, however, contends that the department, after an appeal has been taken, is ousted of jurisdiction and can make no valid and enforcible order until the matter has been adjudicated by the courts, and then only such order as the courts may direct.

Speaking on this subject, 38 C.J. 572 has the following to say:

"It has generally been held that the pendency of another action between the same parties and involving the same questions operates as a bar to the issuance of a writ of mandamus, unless it will be ineffective, or the other court is without jurisdiction, or will not result in a complete adjudication of the questions involved. So it has been held that where the act to be compelled is involved in a pending appeal, or certiorari, the writ will be refused."

See, also, State ex rel. Kinnear v. Bridges, 21 Wash. 591,59 P. 487; Denison v. Sheppard, 122 Tex. 445,60 S.W.2d 1031; State ex rel. Peacock v. Latham, 125 Fla. 69,169 So. 597; Keyston v. Banta-Carbona Irr. Dist., 19 Cal. App. 2d 384,65 P.2d 371; State ex rel. Julian v. Board ofMetropolitan Police Com'rs, 170 Ind. 133 (138), 83 N.E. 83;Lillie v. Auditor General, 173 Mich. 538, 139 N.W. 260; Stateex rel. Chicago, B. Q.R. Co. v. North Lincoln Street R. Co.,34 Neb. 634, 52 N.W. 369; State ex rel. Wahl v. Speer,284 Mo. 45, 223 S.W. 655.

The Kentucky statutes, § 4935, provide for an appeal by a petition for review filed in the circuit court, and that the workmen's compensation board as well as the adverse parties in interest shall be made respondents; that summons shall issue upon the petition directing the adverse parties to file answer and directing the board to certify its complete record of the case to the court, and except misconduct or fraud is charged, the circuit court shall hear the cause upon the record or abstract thereto as certified by the board.

Construing this statute, the supreme court in the case ofFarmer Motor Co. v. Smith, 249 Ky. 445, 60 S.W.2d 929, said:

"After an appeal is perfected pursuant to the statute, supra, the board's jurisdiction, right, or authority to take any further steps in the case ceases, while pending appeal. . . .

"The board may upon its own motion under section 4902, Kentucky Statutes, review its award or order as authorized by the statute, supra, but this does not mean that it may do so while the action is pending on appeal. When an appeal is taken from any tribunal, it then loses jurisdiction to further act."

Speaking upon the subject of a commission's jurisdiction to act while an appeal is pending in the courts, the supreme court of Oklahoma, in the case of Scruggs Bros. Bill Garage v. StateIndustrial Commission, 94 Okla. 187, 221 P. 470, said:

". . . although the Industrial Commission has and retains general jurisdiction over cases arising under the Workmen's Compensation Law, yet, when once the commission has made a finding, or an award, and a petition has been filed in the Supreme Court to review such finding or award, the commission is thereby ousted of its jurisdiction over the particular matter involved in the appeal. The award from which the appeal is prosecuted must stand or fall upon the trial in the appellate court and is not subject to change pending the appeal."

The supreme court of Oregon considered the question in the case of Maroulas v. State Industrial Acc. Commission,117 Ore. 406, 244 P. 317, and stated as follows:

"We do not think that the statement of the issue here as placed by plaintiff and quoted above is correct. When an appeal has been taken from the decision of the State Industrial Accident Commission, it ceases to be clothed with discretion in the matter of the claim and becomes an actor: Butterfield v. StateIndustrial Acc. Com., 111 Or. 149 (223 P. 941, 226 P. 216). The matter in controversy has been removed from the Commission to court. When the jurisdiction of the court has attached, the Commission has no more control over the controversy than has any other litigant in court."

Of like import are Beronio v. Industrial Acc. Commission,86 Cal. App. 588, 260 P. 1104, and Hailey-Ola Coal Co. v. StateIndustrial Commission, 123 Okla. 64, 251 P. 1040.

We said in Albrecht v. Department of Labor Industries,192 Wash. 520, 74 P.2d 22:

"The right of appeal is purely statutory, and is subject to all of the limitations and restrictions imposed by the statutes which define the right. The statute provides that any claimant, employer, or other person who is aggrieved by any order, decision, or award made in the first finding of the department of labor and industries — that of the supervisor who makes the first findings, orders, and awards for the department — must, as a condition precedent to his appeal to the court, first appeal to the joint board; that is, the joint board is the appellate tribunal of the department of labor and industries. In that tribunal is heard the appeal of those aggrieved by any order, decision, or award made by the supervisor.

"There is no provision in the statute authorizing an appeal to the joint board after it has made its final order upon an appeal from the supervisor; when the joint board hears an appeal on the question presented and makes a final order on the merits of the case, that case is closed. The only remedy of one aggrieved by that order is an appeal to the superior court."

Upon taking an appeal from an order of the joint board, the department is divested of jurisdiction to make any orders concerning the claim, its payment, or its rejection, in so far and to the extent that the amount of the award is disputed.

The writer is concerned about the result of the holding that requires the payment of a claim pending appeal. If upon appeal by an employer the courts should hold that the employee was not entitled to recover, the department would be in the position of having been required to pay a spurious claim or one not compensable under the act, without the right to charge it to any fund or to replace the payment already made by additional assessments against the appellant employer or those in his class. The funds provided for by the workmen's compensation law are only exacted from employers on the basis of the need of the workmen under the act who are injured.

The base rate paid by the employers is fixed by statute. The amount exacted from them is computed on the need of the injured workmen who fall within the purview of the act. It cannot be enlarged to pay injured workmen not falling within the scope of this statute.

Hence, in the case at bar, if the claim is paid now and the court should decide upon the pending appeal that relator was not injured, or, if injured, his claim were not compensable under the act at the time of his injury, surely the amount so paid could not be charged against the employer's cost experience or the base rate of employers in that class. The depletion of the fund would only affect those employees under the act who are actually injured.

Relator relies upon State ex rel. Crabb v. Olinger, supra, in support of his contention relative to the effect of the stay provision, but the question presented here was neither briefed nor decided in that case. We simply held that the stay provision of Rem. Rev. Stat., § 7697, had no application to rehearings before the joint board.

The writer is of the opinion that the sentence "except in the case last named an appeal shall not be a stay" in Rem. Rev. Stat., § 7697, was intended to be restricted in its application to Rem. Rev. Stat., § 7683. It simply means that, unless a bond is given within five days following service of notice of appeal, such appeal shall not operate as a stay of the order made by virtue of the authority of that section.

The stay provision must be given a reasonable construction so as to harmonize it with the other provisions of the act.

"It is to be presumed that all the subsidiary provisions of an act harmonize with each other, and with the purpose of the law; if the act is intended to embrace several objects, that they do not conflict. Therefore it is an elementary rule of construction that all the parts of an act relating to the same subject should be considered together, and not each by itself. By such a reading and consideration of a statute its object or general intent is sought for, and the consistent auxiliary effect of each individual part. Flexible language which may be used in a restricted or extensive sense will be construed to make it consistent with the purpose of the act and the intended modes of its operation as indicated by such general intent, survey and comparison — ex antecedentibus et consequentibus fit optimainterpretatio." 2 Lewis' Sutherland Statutory Construction (2d ed.), 659, § 344.

"It is the general rule that all the provisions of an act must be considered in their relations one to the other, and a construction placed thereon which will harmonize all, if possible, and give effect to all." Hansen v. Harris, 123 Wash. 109,212 P. 171.

It is impossible to harmonize all of the provisions of the workmen's compensation act with the sentence "except in the case last named an appeal shall not be a stay" when it is construed to apply to the general provisions of the act relative to appeal.

In the writer's opinion, the requirement of the payment of claims would nullify the provisions of the statute and the holding of this court guaranteeing to the employer the right of appeal and the declaration that no awards for injuries may be paid out of the fund until they have been established by the procedure provided in the act.

In the event, however, the stay provision is to be construed as applicable to the entire act, then the only conceivable construction which renders it harmonious with the other provisions of the act is to admit that the part of a claim may be paid to the workman when that portion of the allowance is not disputed by the appeal.

In the case at bar, it appears that not a portion of the award was controverted, but the entire award was contested by the employer; and the order of the joint board was appealed from in its entirety.

The majority holds that the contributions paid under the workmen's compensation act is a license tax, citing State exrel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 P. 1101, 37 L.R.A. (N.S.) 466. It is true that reference was made to that question in Mountain Timber Co. v. Washington, 243 U.S. 219,61 L. Ed. 685, 37 S. Ct. 260, Ann. Cas. 1917D, 642, citing theClausen case, supra. It will be observed, however, that, in that case, the court did not hold the charge laid upon persons engaged in industries either named in the act or that could be brought under the act, constituted a license tax, but rather that it partakes of the nature of a license tax.

A tax is defined in 26 R.C.L. 13, to be:

". . . an enforced contribution of money or other property, assessed in accordance with some reasonable rule of apportionment by authority of a sovereign state on persons or property within its jurisdiction, for the purpose of defraying the public expenses."

The definition of a license tax is contained in 17 R.C.L. 475, as follows:

"A license tax is one imposed on the privilege of exercising certain callings, professions, or vocations, that, when collected, goes into the public treasury, and, when applied to municipal taxations, is termed a `license fee.'"

The amounts collected by the department pursuant to provisions of the workmen's compensation act are not taxes, and we have not so held. Such sums are merely sums of money collected by a governmental agency and paid into a trust fund for the sole benefit of those injured workmen falling within the act. The assessments made have none of the characteristics of a license tax. In this connection, we said in State ex rel. Trenholm v. Yelle,174 Wash. 547, 25 P.2d 569:

"These funds are therefore trust funds drawn from particular sources and devoted to special purposes. By the act itself, the fund is impressed with a trust.

"`The fund thereby created shall be termed the "accident fund" which shall be devoted to the purpose specified for it in this act.' Rem. Rev. Stat., § 7676. Re-enacted in Chapter 193, Laws of 1933, p. 925, Rem. 1933 Sup., § 7676. . . .

"If the administrative method and the procedure prescribed by the workmen's compensation act be interfered with, the whole purpose of the act may be destroyed. If the legislature may at will appropriate moneys out of those funds regardless of the procedure established by the act, then the act will have lost its effect, and its purpose will be to that extent defeated. The rights of both employer and employee, with reference to the trust funds and their application, will be jeopardized. Those charged with the collection of premiums for the maintenance of the accident fund will have no way of determining what rates shall be fixed or charged. Those who may be entitled to share in the fund by proper procedural compliance will be placed at a disadvantage if the fund be depleted through outside interference. And finally, the legislature will have supplanted the courts as the final arbiter of the legitimacy of claims."

The state compels payments by virtue of the exercise of the police power to regulate industry as distinguished from the exercise of the taxing power. The sums paid by the employers are not paid into the treasury for the benefit of the state government as such.

Since the contributions paid under the workmen's compensation act are not taxes, the case of State ex rel. Weyerhaeuser TimberCo. v. State Tax Commission, 189 Wash. 56, 63 P.2d 494, is inapplicable here.

The department having been divested of the jurisdiction over the claim to the extent that the award was contested by reason of the appeal to the courts, and since the employer has been given the right to appeal to the courts from the order of the joint board, and, further, since the cause is triable de novo upon the department record by express legislative mandate, the court should give that effect to the act of the legislature which will make all of its provisions workable.

We come now to the contention of whether the relator is entitled to a writ of mandate.

The right of this court to entertain a writ of mandate does not appear to have been raised in State ex rel. Crabb v.Olinger, 191 Wash. 534, 71 P.2d 545, but it is challenged in the application for the writ in the present proceedings.

Rem. Rev. Stat., § 7697, provides:

"Within thirty days after the final order of the joint board upon such application for rehearing has been communicated to such applicant, or within thirty days after rehearing is deemed denied as herein provided, such applicant may appeal to the superior court of the county of his residence, . . ."

In Maddox v. Industrial Ins. Commission, 113 Wash. 137,193 P. 231, we said:

"Appellant had no cause of action of which the court had original jurisdiction. State ex rel. Davis-Smith Co. v.Clausen, 65 Wash. 156, 117 P. 1101, 37 L.R.A. (N.S.) 466, 2 N.C.C.A. 823, 3 N.C.C.A. 599; State v. Timber Mountain Co.,75 Wash. 581, 135 P. 645, L.R.A. 1917D 10, 4 N.C.C.A. 811. The commission had exclusive jurisdiction and appellant had only the right of appeal from its order."

In State ex rel. Hawksworth v. Clifford, 130 Wash. 103,226 P. 272, we stated:

"It is plain to us that the error about which relator complains concerns `the proper application of the provisions of this act' as provided by the statute, and that she had a right of appeal. It seems plain, also, that this right of appeal afforded a complete and adequate remedy, because the statute expressly provides that on appeal `full opportunity to be heard shall be had before judgment is pronounced.' By appeal relator could have raised every question she here raises and the court would have been bound to give a decision on such questions. We have many times held that where there is a right of appeal given by statute and such appeal is an adequate remedy, we will not exercise our jurisdiction to issue writs of mandamus, certiorari or prohibition."

In State ex rel. Ottesen v. Clausen, 124 Wash. 389,214 P. 635, this court observed:

"There is an abundance of authority cited to sustain the rule found in 18 R.C.L., Mandamus, p. 101, § 15, as follows:

"`Though the state courts of last resort are given original jurisdiction to issue writs of mandamus, and under such a grant have in many instances exercised such jurisdiction frequently without their jurisdiction being questioned, it does not follow that such courts whose principal function is to exercise appellate or supervisory jurisdiction will assume original jurisdiction in all cases in which their aid may be sought and which otherwise may be a proper case for the use of the remedy. And in this connection the established rule seems to be that as original jurisdiction is conferred in order that the court of highest authority in the state should have the power to protect the rights, interests, and franchises of the state, and the rights and interests of the whole people, to enforce the performance of high official duties affecting the public at large, and, in emergency (of which the court itself is to determine), to assume jurisdiction of cases affecting local public interests, or private rights, where there is no other adequate remedy, and the exercise of such jurisdiction is necessary to prevent a failure of justice, the court is vested with a sound legal discretion to determine for itself, as the question may arise, whether or not the case presented is of such a character as to call for the exercise of its original jurisdiction. And some courts say that original jurisdiction should not be assumed except in cases affecting the sovereignty of the state, its franchises, or prerogatives, or the liberties of its people, or in exceptional cases where a failure to take jurisdiction would amount to a denial of justice and only when the interest of the state at large is directly involved, and where such interest is the principal, and not a collateral, question.'"

The writer is of the opinion that the writ should not issue in this case for the reason, first, that, when his case was appealed to the superior court, the department lost jurisdiction to make the payment provided for by the joint board, and, second, that the relator has a plain, speedy and adequate remedy by appeal.

I therefore dissent.

ROBINSON, J., concurs with SIMPSON, J.