33 F.2d 137 (S.D.Ala. 1929), 125., Benson v. Crowell

Docket Nº:125.
Citation:33 F.2d 137
Party Name:BENSON v. CROWELL, Deputy Commissioner, et al.
Case Date:May 27, 1929
Court:United States District Courts, 11th Circuit, Southern District of Alabama
 
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Page 137

33 F.2d 137 (S.D.Ala. 1929)

BENSON

v.

CROWELL, Deputy Commissioner, et al.

No. 125.

United States District Court, S.D. Alabama, Southern Division.

May 27, 1929

Page 138

Outlaw, Kilborn & Smith, of Mobile, Ala., and Harry T. Smith & Caffey, of Mobile, Ala., for complainant.

Pillans, Cowley & Gresham, of Mobile, Ala., for Knudson.

Alex C. Birch, U.S. Atty., of Mobile, Ala., for Crowell.

ERVIN, District Judge.

This is a proceeding filed by Benson against Crowell as deputy commissioner for the seventh compensation district, appointed and acting under and by virtue of act of Congress known as the Longshoremen's and Harbor Workers' Compensation Act, and against J. B. Knudson, who claimed to have suffered an injury while working for Benson.

The deputy commissioner allowed Knudson's claim, and the proceeding was filed by Benson under subdivision (b) of section 21 of said act, which is found in United States Statutes at Large, vol. 44, part 2, page 1436 (33 USCA § 921(b). The proceeding as amended attacks the act as violative of several provisions of the Constitution, and charges that the proceedings had before the deputy commissioner were not in accordance with law. The act has never yet been construed by the Supreme Court, but it has been before several of the District Courts.

In Obrecht-Lynch Corp. v. Clark (D.C.) 30 F.(2d) 144, Judge Coleman held the act to be constitutional, and also held that the provision under subdivision (b), section 21, should be confined to a review of the testimony presented to and considered by, the deputy commissioner.

Judge Hutcheson, in Howard v. Monahan (D.C.) 31 F.(2d) 480, also held that the appeal under subdivision (b) to the District Court is limited to enjoining or affirming the award of the commissioner, with the further right, if enjoined, to direct the commissioner to proceed to make a new award in accordance with law.

Judge Peters, on April 2d in the case of Patrick J. Joyce v. United States Deputy Commissioner in the First Compensation District 33 F.(2d) 218 held that it was plain the courts are not authorized to interfere, unless the award is clearly not in accordance with law. He says: 'There is no appeal from the findings of the deputy commissioner. His award is final. It is only when it is shown he has not proceeded according to law that the court has any jurisdiction.'

The only one of these three opinions which purports directly to discuss the question of constitutionality is that of Judge Coleman, but the question as raised before me brings the matter in a different light from that considered by him.

The Compensation Act provides for the filing of a petition with the deputy commissioner, a hearing by him, and an order to be made by him on the hearing. It is then provided by section 18 of the act (33 USCA § 918) that, if the employer delays over 30 days before complying with the award of the deputy commissioner, he may investigate the matter and make a supplementary order declaring the amount of the default which shall be filed in the same manner as the compensation order. A certified copy of such supplementary order may be filed with the clerk of the federal District Court.

'Such supplementary order of the deputy commissioner shall be final, and the court shall upon the filing of the copy, enter judgment for the amount declared in default by the supplementary order if such supplementary order is in accordance with law. Review of the judgment so entered may be had as in civil suits for damages at common law. Final proceedings to execute the judgment may be had by writ of execution in the form used by the court in suits at common law in actions of assumpsit.'

In section 21, subd. b (33 USCA § 921) it is said:

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'If not in accordance with law, a compensation order may be suspended or set aside, in whole or in part, through injunction proceedings, mandatory or otherwise, brought by any party in interest against the deputy commissioner making the order, and instituted in the Federal district court for the judicial district in which the injury occurred.'

In the proceedings to enjoin the deputy commissioner a number of constitutional objections are raised, but they narrow down to two:

First, section 2, article 3, which reads: 'The judicial power shall extend * * * to all cases of admiralty and maritime jurisdiction.'

Second, the Fifth Amendment to the Constitution, which provides that no person shall be 'deprived of life, liberty, or property, without due process of law.'

It is urged upon me in the first instance that the hearing before the commissioner is not a judicial hearing by an admiralty court, but a mere fact finding statutory proceeding had before an administrative officer under the provisions of this Compensation Act, and therefore that there was no exercise of the judicial power vested by the Constitution in the Supreme Court and such inferior courts as the Congress may from time to time ordain and establish.

In Old Colony Trust Co. et al. v. Commissioner of Internal Revenue, 279 U.S. 716, 49 S.Ct. 499, 73 L.Ed.--, June 3, 1929, the Supreme Court, in discussing a similar administrative function of the government, says: 'The...

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