Fassig v. Turner

Citation116 N.E. 104,95 Ohio St. 232
Decision Date23 January 1917
Docket Number15313
PartiesFassig v. State Ex Rel Turner, Attorney General
CourtUnited States State Supreme Court of Ohio

Workmen's compensation - Section 35, Article II, Constitution, 1912 - Power of general assembly to make law effective -Legislature cannot confer judicial powers - Upon tribunals other than courts - May clothe administrative officers with prescriptive duties-In aid of judicial procedure - Validity of Section 27 of compensation act - Employer entitled to trial by jury when - Compensatory rights of injured employe - Confined to limits of employment.


In the exercise of the power granted by Section 35, Article 11 of the Constitution, to pass a compulsory compensation law, the general assembly is authorized to include all such reasonable provisions as are necessary to make the law effective and to accomplish the purpose expressed in the constitutional provision referred to.


The line which separates power to make laws from power to interpret and apply laws is not exactly defined. The legislature cannot confer upon tribunals, other than courts powers which are strictly and conclusively judicial. But in providing for the enforcement of its enactments, it may clothe administrative officers with power to ascertain whether certain specified facts exist, and thereupon to act in a prescribed manner, without delegating to such officers legislative or judicial power within the meaning of the constitution.


The provisions of Section 27 of the workmen's compensation act (103 O. L., 72, 82), constitute a valid exercise of the legislative power, not repugnant to the federal or state constitution, nor to any limitation contained in either.


On the trial of an action brought pursuant to Section 27 of the same act against an employer who has failed to comply with the law and with the order of the commission, the defendant employer is entitled to a trial by jury; but on the finding of the issues in favor of plaintiff, the amount of the verdict will be the sum fixed by the commission under the schedule provided in the statute.


The provisions in Section 35, Article 11 of the Constitution, and in the statute with reference to an injury received in the course of employment refer only to an injury which is the result of or arises out of the employment. Such provisions do not cover any injury which has its cause outside of and disconnected with the employment, although the employe may at the time have been engaged in the work of his employer in the usual way.

The attorney general, on behalf of Frank Pond, brought suit in the court of common pleas of Franklin county against Percy Fassig, the plaintiff in error. Pond was an employe of Fassig, who was an employer in the state of Ohio, having in his service five or more workmen regularly employed in the same business, or in or about the same establishment.

The plaintiff in error did not contribute to the state insurance fund and had not been granted by the industrial commission the privilege to compensate direct his injured employes or the dependents of his killed employes.

On August 22, 1914, Pond sustained an injury in the course of his employment with Fassig. He made application to the commission to have the amount of compensation due him for his injury fixed under Section 27 of the workmen's compensation law (103 Ohio Laws, 82).

The commission fixed the amount of compensation due Pond and ordered plaintiff in error to pay the amount within ten days after the receipt of notice. The plaintiff in error did not comply with the order, and suit was instituted for the recovery of the amount of the award, together with a penalty of fifty percent.

An answer and reply were filed, and a motion was interposed by the plaintiff in error for judgment on the pleadings. The court of common pleas sustained this motion on the ground that Section 27 of said act, under which Pond proceeded, was unconstitutional. This judgment was reversed by the court of appeals, and this proceeding is brought by the plaintiff in error to reverse that judgment.

Messrs. Wilson & Rector; Messrs. McGhee, Davis & Boulger; Mr. C. M. Voorhees; Messrs. Booth, Heating, Peters & Pomerene and Mr. J. F. Rogers, for plaintiff in error. Mr. Edward C. Turner, attorney general; Mr. John C. Price and Mr. Eugene Carlin, for defendant in error. Messrs. Payer, Winch & Rogers, by leave, filed brief on the unconstitutionality of the provisions for self-compensators.


The contention of the plaintiff in error is that Section 27 of the act referred to infringes Section 5 of Article I of the Bill of Rights, which provides that right of trial by jury shall be inviolate; that it is obnoxious to Section 16 of the same Article, which provides that all courts shall be open and every person shall have remedy by due course of law; that it is the taking of property without due process of law; that it confers judicial power upon a nonjudicial tribunal; that it is an infringement of Section 35 of Article II of the Ohio Constitution; and that it is a denial of the equal protection of the law as guaranteed by the Federal Constitution.

Section 35 of Article II of the Ohio Constitution was adopted in September, 1912, and provides: "For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen's employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, administered by the state determining the terms and conditions upon which payment shall be made there from, and taking away any or all rights of action or defenses from employes and employers; but no right of action shall be taken away from any employe when the injury, disease or death arises from failure of the employer to comply with any lawful requirement for the protection of the lives, health and safety of employes. Laws may be passed establishing a board which may be empowered to classify all occupations, according to their degree of hazard, to fix rates of contribution to such fund according to such classification, and to collect, administer and distribute such fund, and to determine all rights of claimants thereto."

The act referred to was passed pursuant to the grant of power contained in the above provision of the constitution. The act was, in effect, an amendment of the act of May 31, 1911 which provided for the creation of a state liability board of awards, which should establish a state insurance fund from premiums paid by employers and employes in the manner prescribed in the act.

This court, in upholding the constitutionality of the earlier statute, pointed out that it was not compulsory or coercive, and the general scheme of the law, with the provisions for the collection, control and disbursement by the state of the insurance fund provided for by its terms, was sustained as a valid exercise of the police power by the legislature. After the decision just referred to, Section 35, Article II, was adopted by the people as an amendment to the constitution.

It is manifest that the paramount purpose of the amendment was to leave no doubt as to the power of the legislature to pass a compulsory act for the establishment of a state insurance fund to be administered by the state, to which fund employers should be compelled to contribute. It empowered the general assembly to take away any or all rights of action or defenses from employes or employers, subject to certain conditions named.

The sentiment which brought about these consecutive advance steps was of slow but sure growth. It came to be believed that employes should receive compensation for injuries received in the course of their employment, without reference to questions of negligence, unless the injury was caused by their own wilful act; that as a matter of justice, based upon scientific considerations, injuries to workmen in the course of their employment, which were not caused by their own wilful act, should be regarded as a charge upon the business in which they were engaged. This principle and the position in the line of causation which employers sustain in industrial pursuits, are the foundations upon which rest the enactments to compel employers to contribute to state compensation funds. The obligation which arises from that basic relation has been sanctioned by the judgment of society as necessary to the public welfare.

The pertinent part of Section 27, which is at-tacked, is as follows: "Any employe whose employer has failed to comply with the provisions of section twenty-two hereof, who has been injured in the course of his employment, wheresoever such injury has occurred, and which was not purposely self-inflicted, Or his dependents in case death has ensued may, in lieu of proceeding against his employer by civil action in the courts, as provided in the last preceding section, file his application with the state liability board of awards for compensation in accordance with the terms of this act, and the board shall hear and determine such application for compensation in like manner as in other claims before the board; and the amount of compensation which said board may ascertain and determine to be due to such injured employe, or to his dependents in case death has ensued, shall be paid by such employer to the person entitled thereto within ten days after receiving notice of the amount thereof as fixed and determined by the board; and in the event of the failure, neglect or refusal of the employer to pay such compensation to the person entitled thereto, within said period of ten days, the same shall constitute a liquidated claim for damages against such employer in the amount so ascertained and fixed by the...

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2 cases
  • Fassig v. State ex rel. Turner
    • United States
    • Ohio Supreme Court
    • January 23, 1917
    ...95 Ohio St. 232116 N.E. 104FASSIGv.STATE ex rel. TURNER, Atty. Gen.No. 15313.Supreme Court of Ohio.Jan. 23, Error to Court of Appeals, Franklin County. Suit by the State, on relation of Edward C. Turner, Attorney General, on behalf of Frank Pond, against Percy Fassig. From a judgment of the......
  • Yeming Li v. Precision Electric, Inc.
    • United States
    • Ohio Court of Appeals
    • February 24, 1994
    ... ... The Jerry Spears ... Co. (1963), 119 Ohio App. 169. However, due process does ... not necessarily mean judicial process. Fassig v ... State (1917), 95 Ohio St. 232, 246. Due process requires ... a right to be heard and an opportunity to be heard ... ...

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