Booth Fisheries Co. v. Indus. Comm'n

• Court: Wisconsin Supreme Court
• Writing for the Court: OWEN
• Citation: Booth Fisheries Co. v. Indus. Comm'n, 185 Wis. 127, 200 N.W. 775 (Wis. 1924)
• Decision Date: 11 November 1924
• Parties: BOOTH FISHERIES CO. ET AL. v. INDUSTRIAL COMMISSION ET AL.

185 Wis. 127

200 N.W. 775

BOOTH FISHERIES CO. ET AL.

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

Nov. 11, 1924.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Proceedings under the Workmen's Compensation Act by Mary McLaughlin, widow of deceased employee, claimant, opposed by the Booth Fisheries Company, employer, and the insurance carrier. An award of compensation by the Industrial Commission was affirmed by the circuit court, and employer and insurance carrier appeal. Affirmed.Freeman & Bendinger, of Milwaukee (George A. Schneider, of Chicago, Ill., of counsel), for appellants.

H. L. Ekern, Atty. Gen., Winfield W. Gilman, Sp. Counsel, of Milwaukee, and Kittell, Jaseph, Young & Everson, of Green Bay, for respondents.

OWEN, J.

This is an appeal by an employer and its insurance carrier from a judgment of the circuit court for Dane county, affirming an award of the Industrial Commission made in favor of an employé. The only question raised is the constitutionality of a portion of the Workmen's Compensation Act. To induce a better understanding of the exact question presented, its statement should be prefaced by a recital of the general provisions of the Workmen's Compensation Act. To that end, we quote from Borgnis v. Falk Co., 147 Wis. 327, at page 346, 133 N. W. 209, 214, 37 L. R. A. (N. S.) 489:

“It creates an administrative board to carry its provisions into effect; it divides all private employers of labor into two classes: (1) Those who elect to come under the law, and (2) those who do not so elect; it takes away the defenses of assumption of risk and negligence of a coemployee from the second class (except that where there are less than four coemployees the latter defense is not disturbed), but leaves both defenses intact to the first class; it prescribes the manner in which an employer may elect to come under its terms, and how an employee may make his election and when silence on the part of the employee will be considered an election, but it does not in terms compel either employer or employee to submit to its provisions. It then provides a comprehensive scheme by which, after both parties have so elected, any substantial injury, whether the result be fatal or not, received by the employee in the course of or incidental to his employment (except those caused by willful misconduct) shall be compensated for by the employer according to certain definite rules, which rules are to be administered by the administrative board aforesaid by means of simple procedure definitely laid down, which gives to both parties fair notice and hearing, and results in findings and an award which may be filed in the circuit court and become a judgment. It further provides that the findings of fact shall be conclusive and the award subject to review only by action in the circuit court for Dane county, in which it can be set aside only (1) if the commission acted without or in excess of its powers, (2) if the award was procured by fraud, or (3) if the award is not supported by the findings of fact. It then provides that the judgment thus rendered shall be subject to appeal to the Supreme Court.”

The provision of the law which appellants challenge as unconstitutional is that authorizing a judicial review of the awards of the Industrial Commission, as provided in section 102.23, Stats. That section reads as follows:

“The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive; and the order or award, either interlocutory or final, whether judgment has been rendered thereon or not, shall be subject to review only in the manner and upon the grounds following: Within thirty days from the date of the order or award, any party aggrieved thereby may commence, in the circuit court for Dane county, an action against the commission for the review of such order or award, in which action the adverse party shall also be made defendant. In such action a complaint, which shall state the grounds upon which a review is sought, shall be served with the summons. Service upon the secretary of the commission, or any member of the commission, shall be deemed completed service. The commission shall serve its answer within twenty days after the service of the complaint, and, within the like time, such adverse party shall, if he so desires, serve his answer to said complaint. With its answer, the commission shall make return to said court of all documents and papers on file in the matter, and of all testimony which may have been taken therein, and of its order, findings and award. Such return of the commission when filed in the office of the clerk of the circuit court shall, with the papers mentioned in section 2898 of the statutes, constitute a judgment roll in such action; and it shall not be necessary to settle a bill of exceptions in order to make such return part of the record of such court in such action. Said action may thereupon be brought on for hearing before said court upon such record by either party on ten days' notice to the other; subject, however, to the provisions of law for a change of the place of trial or the calling in of another judge. Upon such hearing, the court may confirm or set aside such order or award; and any judgment which may theretofore have been rendered thereon; but the same shall be set aside only upon the following grounds:

(a) That the commission acted without or in excess of its powers.

(b) That the order or award was procured by fraud.

(c) That the findings of fact by the commission do not support the order or award.

(2) Upon the trial of any such action the court shall disregard any irregularity or error of the commission unless it be made to affirmatively appear that the plaintiff was damaged thereby.

(3) The record in any case shall be transmitted to the commission within twenty days after the order or judgment of the court, unless appeal shall be taken from such order or judgment.

(4) Whenever an award is made against the state the Attorney General may bring an action for review thereof in the same manner and upon the same grounds as are provided by subsection (1) hereof.”

[1] It is settled by the decisions of this court that findings of fact made by the Industrial Commission cannot be disturbed, if there is any evidence to support them. Northwestern Iron Co. v. Industrial Commission, 154 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366, Ann. Cas. 1915B, 877;City of Milwaukee v. Industrial Commission, 160 Wis. 238, 151 N. W. 247;Milwaukee Coke & Gas Company v. Industrial Commission, 160 Wis. 247, 151 N. W. 245;William Rahr Sons Co. v. Industrial Commission, 166 Wis. 28, 163 N. W. 169.

It is contended that this provision for a judicial review, as so construed, does not amount to due process of law, because it does not provide for an independent judicial determination of the facts, as well as the law. Counsel for appellants rely principally upon Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287, 40 S. Ct. 527, 64 L. Ed. 908, which they say establishes the proposition that “if the original hearing is before a commission, and the evidence then taken, in any event there must be a fair ‘opportunity for submitting that...