Atkinson, Kier Brothers, Spicer Co. v. Industrial Commission of Arizona

• Decision Date: 12 February 1929
• Docket Number: Civil 2745
• Citation: 274 P. 634,35 Ariz. 48
• Parties: ATKINSON, KIER BROTHERS, SPICER COMPANY, a Corporation, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, and R. B. SIMS, BURT H. CLINGAN, and WILLIAM HUNTER, Respondents
• Court: Arizona Supreme Court

274 P. 634

35 Ariz. 48

ATKINSON, KIER BROTHERS, SPICER COMPANY, a Corporation, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, and R. B. SIMS, BURT H. CLINGAN, and WILLIAM HUNTER, Respondents

Civil No. 2745

Supreme Court of Arizona

February 12, 1929

Proceeding for Writ of Certiorari by the Atkinson, Kier Brothers, Spicer Company, a corporation, to set aside an award to wife and son of Edward Anthony Wright, deceased. Award affirmed.

Mr. W L. Barnum, Mr. Robert McMurchie, and Mr. W. W. Rhodes, for Petitioner.

Mr John J. Taheny, for Respondents.

Mr. L M. Laney, for Beneficiaries.

OPINION

McALISTER, J.

While building the Coolidge Dam at San Carlos, Arizona, the Petitioner, Atkinson, Kier Brothers, Spicer Company, a corporation, had in its employ as chief engineer and general superintendent of construction one Edward Anthony Wright, who on September 12, 1927, met his death by coming in contact with a live wire during a trip of inspection of the work. The Industrial Commission awarded compensation to his wife and son, and upon a rehearing affirmed its order, and the petitioner claiming that the Commission was without jurisdiction to make the award has brought the matter here for review.

The deceased was not engaged in manual or mechanical labor at the time of his death, and for this reason the petitioner contends that his dependents are not entitled to compensation. This view grows out of the construction it claims should be placed upon section 8, article 18 of the Constitution of this state, which directed the legislature to enact a Workmen's Compensation Law "applicable to workmen engaged in manual or mechanical labor." This section was amended in 1925 (see Laws 1925, chap. 82) and since then has read as follows:

"The legislature shall enact a Workmen's Compensation Law applicable to workmen engaged in manual or mechanical labor in all public employment whether of the State, or any political subdivision or municipality thereof as may be defined by law and in such private employments as the Legislature may prescribe by which compensation shall be required to be paid to any such workman, in case of his injury and to his dependents, as defined by law, in case of his death, by his employer, if in the course of such employment personal injury to or death of any such workman from any accident arising out of and in the course of, such employment, is caused in whole, or in part, or is contributed to, by a necessary risk or danger of such employment, or a necessary risk or danger inherent in the nature thereof, or by failure of such employer, or any of his or its agents of [or] employee or employees, to exercise due care, or to comply with any law affecting such employment; provided that it shall be optional with any employee engaged in any such private employment to settle for such compensation, or to retain the right to sue said employer as provided by this Constitution; and, provided further, in order to assure and make certain a just and humane compensation law in the State of Arizona, for the relief and protection of such workmen, their widows, children or dependents, as defined by law, from the burdensome, expensive and litigious remedies for injuries to or death of such workmen, now existing in the State of Arizona, and producing uncertain and unequal compensation therefor, such employee, engaged in such private employment, may exercise the option to settle for compensation by failing to reject the provisions of such Workmen's Compensation Law prior to the injury.

"The percentages and amounts of compensation provided in House Bill No. 227 enacted by the Seventh Legislature of the State of Arizona, shall never be reduced nor any industry included within the provision of said House Bill No. 227 eliminated except by initiated or referred measure as provided by this Constitution."

The act passed in compliance with this mandate, chapter 83, Session Laws of 1925, applies not merely to those engaged in manual or mechanical labor but to workmen in all lines of endeavor where there are as many as three or more regularly employed in the same business or in or about the same establishment, except agricultural workers not employed in the use of machinery, and domestic servants (sections 44 and 45 of said chapter), and because of this fact it is contended that the act is without constitutional sanction and void in so far as it includes workmen engaged in labor that is nonmanual or nonmechanical. The mandate does not expressly prohibit the legislature from providing compensation for such workmen but it is argued that it does so by implication, because by applying the well-known maxim, "expressio unius est exclusio alterius," the enumeration of those engaged in manual or mechanical labor as beneficiaries of the law to be enacted has the effect of excluding therefrom those not mentioned, namely, nonmanual and nonmechanical workmen. This contention would undoubtedly prevail if the legislature's source of power to enact a Workmen's Compensation Law were this constitutional provision, because in that event only such legislation as it prescribes or is necessarily incidental thereto could have been included in the law directed. Under such circumstances the command to provide compensation for workmen engaged in manual or mechanical labor would not only be no authority to treat those engaged in nonmanual or nonmechanical labor likewise but a prohibition against doing so. Home Accident Ins. Co. v. Industrial Commission, 34 Ariz. 201, 269 P. 501.

However, we are not here confronted with this situation. This constitutional provision is not a grant of power but a command to enact a Workmen's Compensation Law applicable to workmen engaged in certain employments; hence, it gave the legislature no right it did not already possess, because its power to enact such a law without express constitutional authority cannot be questioned. Both Employers' Liability and Workmen's Compensation Laws may be passed in the exercise of the police power of the state which is possessed by and adheres in every sovereign state of the American Union, and is not a grant from or under any written Constitution. 6 R.C.L. 183. "Laws regulating the responsibility of employers for the injury or death of employees arising out of the employment," said the court in New York Central Railroad Co. v. White, 243 U.S. 188, Ann. Cas. 1917D 629, L.R.A. 1917D 1, 61 L.Ed. 667, 37 S.Ct. 247, "bear so close a relation to the protection of the lives and safety of those concerned that they properly may be regarded as coming within the category of police regulations."

It being true, therefore, that the legislature could in the exercise of its general power provide that workmen employed in nonmechanical employment should receive compensation under the same terms and conditions as those following mechanical labor, we are of the view that this inherent power is in no way abridged by the mandate to enact a Workmen's Compensation Law applicable to workmen engaged in manual or mechanical labor. There is no necessary implication that it has this effect, because "a power clearly legislative in its character," as said by the court in Imperial Irrigation Co. v. Jayne, 104 Tex. 395, Ann. Cas. 1914B 322, 138 S.W. 575, and "not expressly denied to the legislature, ought not to be held denied by implication, unless its exercise would interfere with, frustrate, or to some extent defeat the exercise of a power expressly granted," and to give nonmanual and nonmechanical workmen the benefits of the Workmen's Compensation Law neither militates against nor in the slightest degree interferes with the carrying out of the purpose of the mandate directing the enactment of it. The mere reference to the thing this provision was intended to accomplish discloses this. The aim was to provide a method by which claims growing out of injuries received by workmen engaged in manual or mechanical employments might be settled upon the theory that industry should bear the burden of its own accidents and necessarily to do away with the old system of proceeding by an action at law based upon negligence which was so expensive and so uncertain that in many instances it meant the defeat of legitimate claims as well as the occasional success of one without merit, at least to the full extent of recovery, and it is evident that the nonmechanical workman's right to settle his claim through the new method in no way hampers the mechanical workman in doing the same thing. It is not merely no detriment to the latter to give nonmechanical workmen this privilege, but a positive benefit to those engaged in nonmechanical labor, since they stood in equal need with mechanical workmen of being recompensed for any injury suffered and were confronted with the same hardships in enforcing their claims.

It is inconceivable, in view of this, that the supporters of the constitutional mandate meant to...