Cook v. Massey

• Decision Date: 09 November 1923
• Citation: 38 Idaho 264,220 P. 1088
• Parties: NORA A. COOK, Respondent, v. J. C. MASSEY, Appellant
• Court: Idaho Supreme Court

220 P. 1088

38 Idaho 264

NORA A. COOK, Respondent, v. J. C. MASSEY, Appellant

Supreme Court of Idaho

November 9, 1923

APPEALS-STATUTES-RETROSPECTIVE EFFECT - WORKMEN'S COMPENSATION ACT - CONSTRUCTION OF STATUTES - LEGISLATIVE INTENT - THRESHING AS AGRICULTURAL PURSUIT-DUE PROCESS OF LAW IN PROCEEDINGS BEFORE INDUSTRIAL ACCIDENT BOARD-NO PRESUMPTIONS UPON DIRECT ATTACK.

1. Unless a contrary intention clearly appears therein, a statute will not be given retrospective effect.

2. Sec 6270A, chap. 217 (Sess. Laws 1921, p. 479), shortening the time of appeal, does not apply where the judgment appealed from was entered before the act became effective.

3. In construing a statute, words will be given their common and ordinarily understood meaning.

4. In ascertaining legislative intent, all statutes on the same subject matter may be considered.

5. The operation of a commercial threshing-machine outfit is an agricultural pursuit under the workmen's compensation law. (C. S., sec. 6216.)

6. The Industrial Accident Board, being a body exercising special judicial functions in its determination of issues between contestants, and indirectly imposing a pecuniary liability upon the loser, must pursue the same general conduct that a court would exercise in safeguarding the fundamental constitutional rights of the citizen, which cannot be abridged except after due notice and a fair and impartial hearing.

7. The validity of an award of the Industrial Accident Board and of a judgment based thereon must be affirmatively shown in case of direct attack upon such award and judgment, and no presumptions in favor of jurisdiction or due process can be indulged.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Appeal from an award made by the Industrial Accident Board of the state of Idaho and affirmed by the district court. Judgment vacated and proceeding dismissed.

Judgment of the lower court vacated and the proceeding dismissed. Costs awarded in favor of appellant.

Bothwell & Chapman and J. H. Sherfey, for Appellant.

The deceased, William A. Cook, at the time of the accident was engaged in an "agricultural pursuit," and was, therefore, exempted from the provisions and operation of the workmen's compensation law. (C. S., sec. 6215; Dillard v. Webb, 55 Ala. 468; 1 Words & Phrases (Old Series), 286; 2 Cyc. 56; Binzel v. Grogan, 67 Wis. 147, 29 N.W. 895; Simons v. Lovell, 54 Tenn. 510; Lahn & Co. v. Carr, 120 La. 797, 45 So. 707; Laporte v. Libby, 114 La. 570, 38 So. 457; Eckman v. Poor, 38 Colo. 200, 87 P. 1088; Stemmer v. Insurance Co., 33 Ore. 65, 49 P. 588, 53 P. 498; Estate of Klemp, 119 Cal. 41, 63 Am. St. 69, 50 P. 1062; Spence v. Smith, 121 Cal. 536, 66 Am. St. 62, 53 P. 653; Vincent v. Taylor Bros., 180 A.D. 818, 168 N.Y.S. 287; Jones v. Industrial Com., 55 Utah 489, 187 P. 833.)

"While it is the intent of the compensation act to adjust controversy by concise and summary proceedings, unhampered by technical form, yet the elementary and fundamental principles of judicial trial must be observed, and it is not the intent of the act to throw aside all safeguards by which judicial investigations are recognized as best protected." ( Reck v. Whittleberger, 181 Mich. 463, Ann. Cas. 1917C, 771, 148 N.W. 247; Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 53, 151 P. 658; Heileman Brewing Co. v. Industrial Acc. Com., 161 Wis. 46, 152 N.W. 446; Buckley's Case, 218 Mass. 354, Ann. Cas. 1916B, 474, 105 N.E. 979.)

"No acts of the legislature shall be construed to be retroactive or retrospective unless the intention on the part of the legislature is clearly expressed." (3 C. J. 1042; Peavy v. McCombs, 26 Idaho 143, 140 P. 965; In re Frees' Est., 187 Cal. 150, 201 P. 112; C. S., sec. 9443.)

"As a general rule, the right of appeal is governed by the statute in force when the final judgment is rendered." ( Pignaz v. Burnett, 119 Cal. 157, 51 P. 48; Jackman v. Atchison T. & S. F. R. Co., 22 N.M. 422, 163 P. 1084; Wilson v. Kryger, 26 N.D. 77, 143 N.W. 764; Raddatz v. Christner, 103 Neb. 621, 173 N.W. 677.)

J. W. Taylor, for Respondent.

Cook was a mechanic employed in a mechanical trade or calling, and was not engaged in an agricultural pursuit. Webster's New International Dictionary defines the word "pursuit" as follows: "That which one pursues, or engages in, as a course of business or occupation; continued employment; as, mercantile pursuits; a literary pursuit."

The defendant, Massey, was engaged in threshing as a commercial occupation entirely. (White v. Loades, 178 A.D. 236, 164 N.Y.S. 1023; Vincent v. Taylor Bros., 180 A.D. 818, 168 N.Y.S. 287; O. L. Shafter Estate Co. v. Industrial Acc. Com., 175 Cal. 522, 166 P. 24; In re Boyer, 65 Ind.App. 408, 117 N.E. 507; Miller & Lux, Inc., v. Industrial Acc. Com., 32 Cal.App. 250, 162 P. 651.)

GIVENS, Commissioner, T. BAILEY LEE, Commissioner. Budge, C. J., and McCarthy and William A. Lee, JJ., concur.

OPINION

GIVENS, Commissioner.

-- Respondent has moved to dismiss this appeal because the same was not taken in time.

The judgment of the district court from which the pending appeal was taken was dated April 25, 1921, and service of notice of appeal was made on July 16, 1921, and filed July 15, 1921. At the time the judgment was rendered the statute regulating the time within which an appeal should be taken was C. S., sec. 7152. Thereafter sec. 6270A, chap. 217, 1921 Sess. Laws, p. 474, at 479, was added, which by the construction given in McNeil v. Panhandle Lumber Co., 34 Idaho 773, at 778, 203 P. 1068, shortened the time of appeal to twenty days.

Sec. 6270A became effective May 4, 1921, nine days after the date of the judgment of the district court herein appealed from. Respondent urges that this limited the time within which appellant might appeal to twenty days from the time the act became effective, and cites in support thereof Bailey v. Kincaid, 57 Hun 516, 11 N.Y.S. 294; Stephen v. Lewis, 62 Md. 229; Smith v. Packard, 12 Wis. 371; Rogers v. Trumbull, 32 Wash. 211, 73 P. 381; Shelly v. Dampman, 174 Pa. 495, 34 A. 124.

If this theory of respondent's be adopted, there must be read into the statute the proviso that the time within which an appeal must be taken with reference to judgments entered prior to the time that the law became effective dates from such effective date, and not from the date the judgment was entered, and also it must be concluded that the legislature intended the statute to have a retrospective effect. In the absence of any indication of the legislative intent, it is just as reasonable to assume that the legislature did not intend the statute to have a retrospective effect as it is to conclude otherwise. While there is a conflict of authority, this court, in accord with other jurisdictions, has heretofore refused to adopt respondent's theory. The time within which an appeal could be taken is governed by the statute in force at the entry of the judgment. (Pignaz v. Burnett, 119 Cal. 157, 51 P. 48; Melde v. Reynolds, 120 Cal. 234, 52 P. 491.)

"As a general rule, the right of appeal is governed by the law applicable thereto in force when the final judgment is rendered, and, unless it is evident from the terms of the statute which gives, modifies, or takes away the right of appeal that it was intended to have a retrospective effect, it has no application to causes in which final judgment has been rendered prior to the time the act in question was passed." (Rolater v. Strain, 31 Okla. 58, 119 P. 992.)

"In construing statutes with reference to such effect, Sutherland on Statutory Construction announces the rule, in vol. 2, sec. 641, 2d ed., as follows: 'Retrospective legislation is not favored, and is prohibited by the constitution of some of the states, as being highly injurious, oppressive and unjust; and nowhere will retrospective effect be given to a statute unless it appears that it was the intent of such legislation that it should have such effect.'" (Lawrence v. Defenbach, 23 Idaho 78, at 83, 128 P. 81; Bellevue State Bank v. Lilya, 35 Idaho 270, 205 P. 893; Peavy v. McCombs, 26 Idaho 143, at 151, 140 P. 965.)

The general rule is thus stated in 3 C. J. 1042: "A statute reducing the time for taking an appeal does not apply to proceedings in which judgment has been previously rendered, unless the intention that it shall have a retrospective effect is plainly expressed." (Jackman v. A. T. & S. F. R. Co., 22 N.M. 422, 163 P. 1084.)

Shapard v. Mixon, 122 Ark. 530, 184 S.W. 399, lays down the contrary rule, but see Sparks v. Murray, 120 Ark. 17, 178 S.W. 909. While the Shaphard v. Mixon case, supra, cites Wilson v. Kryger, 26 N.D. 77, 143 N.W. 764, 51 L. R. A., N. S., 760, as supporting the conclusion in Stephens v. Williams, 122 Ark. 255, 183 S.W. 527, Raddatz v. Christner, 103 Neb. 621, 173 N.W. 677, cites Wilson v. Kryger, supra, in support of the rule announced therein, which is in accord with the California decisions above noted, and we believe the dissenting opinion in Stephens v. Williams, supra, is more consonant with justice and the principles heretofore announced by this court. (Obermeyer v. Kendall, 36 Idaho 144, 209 P. 888; Ford v. Ford (S. D.), 46 S.D. 182, 191 N.W. 457; Ryan v. Supreme Council, 146 Ill.App. 384; Cox v. Hart, 260 U.S. 427, 43 S.Ct. 154, 67 L.Ed. 332.)

" . . . . Indeed, the rule to be derived from the comparison of a vast number of judicial utterances upon this subject, seems to be, that, even in the absence of constitutional obstacles to retroaction, a construction giving to a statute a prospective operation is always to be preferred, unless a purpose to give it a retrospective force is expressed by clear and positive command, or to be inferred...