Home Accident Ins. Co. v. Industrial Commission of Arizona

• Decision Date: 18 July 1928
• Docket Number: Civil 2696
• Citation: 269 P. 501,34 Ariz. 201
• Parties: HOME ACCIDENT INSURANCE COMPANY, a Corporation, Insurance Carrier, and E. PAYNE PALMER, Doing Business Under the Name and Style of VANADIUM MINING COMPANY, Employer, Petitioners, v. THE INDUSTRIAL COMMISSION OF ARIZONA and R. B. SIMS, BURT H. CLINGAN, and H. S. McCLUSKEY, as Members of the Industrial Commission of Arizona, Respondents
• Court: Arizona Supreme Court

269 P. 501

34 Ariz. 201

HOME ACCIDENT INSURANCE COMPANY, a Corporation, Insurance Carrier, and E. PAYNE PALMER, Doing Business Under the Name and Style of VANADIUM MINING COMPANY, Employer, Petitioners, v. THE INDUSTRIAL COMMISSION OF ARIZONA and R. B. SIMS, BURT H. CLINGAN, and H. S. McCLUSKEY, as Members of the Industrial Commission of Arizona, Respondents

Civil No. 2696

Supreme Court of Arizona

July 18, 1928

Original proceeding for Writ of Certiorari to set aside award of the Industrial Commission In re William L Connor, Deceased. Award for benefit of vocational rehabilitation fund affirmed.

Messrs Chalmers, Fennemore & Nairn and Mr. J. Early Craig, for Petitioners.

Mr John J. Taheny, for Respondents.

OPINION

McALISTER, J.

While discharging his duty as an employee of E. Payne Palmer, doing business under the name of Vanadium Mining Company, William L. Connor was killed on October 18, 1926, in an accident arising out of and occurring in his employment. Both the employer and employee were subject to the Workmen's Compensation Law of this state, and the carrier of the insurance was the Home Accident Insurance Company. After a hearing before the Industrial Commission, which established the fact that Connor left no dependents, that body made an order directing the insurance carrier to pay the burial expenses of $150 and the further sum of $850 for the benefit of the rehabilitation fund of the state. The petitioners, being dissatisfied with this order, asked for a rehearing. This was denied, and they have brought the proceedings here by certiorari, asking this court to set aside that portion of the order directing the payment of $850, but raising no objection to the item of $150.

The ground upon which a rehearing was sought and the petition in this court based, is that the provision of the Workmen's Compensation Law under which this portion of the award was made -- subdivision 9, division (A) of section 70, chapter 83, Session Laws of 1925 -- is unconstitutional and void in so far as it directs the payment of $850 for the purpose therein designated. It reads as follows:

"If there be no dependents, the employer or insurance carrier, or the state compensation fund, shall pay the burial expenses of the deceased, as provided herein, and shall pay into the state treasury the sum of $850. Such payments shall be held in a special fund for the purpose of enabling the commission to provide such additional awards as may be necessary to enable injured employees to accept the benefits of any Act that may be passed by the Legislature of Arizona, or the Congress of the United States, or both assemblies jointly, to provide for the promotion of vocational rehabilitation of persons disabled in industry or otherwise, and their return to safe employment."

The constitutionality of this provision is assailed upon several grounds, but the one upon which petitioners chiefly rely is that it embraces a subject not covered in section 8 of article 18 of the Constitution of the state of Arizona, as amended in 1925, pursuant to chapter 82, Session Laws of that year, and consequently that it and the award made under it are without constitutional warrant or support, and are therefore void. The following is the exact language of this section:

"Section 8. 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 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."

It is the contention of petitioners that this provision empowers the legislature to enact a Workmen's Compensation Law applicable to workmen engaged in certain employments, by which compensation shall be required to be paid by the employer to his workmen in case of injury and to their dependents in case of death. In other words, their position is that it authorizes legislation compelling the employer to pay compensation to his employees and their dependents, but not to the employees of any other employer or to the state for their benefit, and consequently that the provision that an employer shall pay into the state treasury the sum of $850, to be used for the promotion of vocational rehabilitation of persons disabled in industry or otherwise, when the employee killed is without dependents, embraces a class, the workmen of other employers, not enumerated in or contemplated by section 8, article 18, as amended, and is therefore without constitutional warrant.

In support of this view the case of Yosemite Lumber Co. et al. v. Industrial Accident Commission of California et al., 187 Cal. 774, 20 A.L.R. 994, 204 P. 226, is cited, and a reading of that opinion discloses that, under a constitutional mandate somewhat similar to section 8, as amended, the court did hold that a provision in an act for the vocational re-education and rehabilitation of workmen disabled in industry, pretty much the same as subdivision 9, supra, was invalid, and based its ruling upon the ground that the express grant of power to require employers to compensate their workmen and their dependents implies that the power to compel them to compensate the state for the benefit of the workmen of others is not granted. "The language of neither one of these parts of the section shows or expresses," the court said, "an intent to add another liability to that expressly stated," and it held that the maxim, "The expression of one thing is the exclusion of another," was applicable.

There is no question but that this view is correct, when the power to enact legislation does not exist independently of the Constitution, because a provision in that instrument directing the legislature to enact particular legislation necessarily carries with it no authority to enact something not included therein. But, when such power does exist, irrespective of the Constitution, it is not lost by a provision therein making it the duty of the legislature to enact something else relating to the same subject, because, unlike Congress, whose only powers are those granted by the Constitution of the United States, the legislatures of the states have all legislative power, except that withheld from them by the state Constitutions, or surrendered to the federal government. In Clark v. Boyce, 20 Ariz. 544, 185 P. 136, this court said:

"The Legislature has all power not prohibited to it by the state or federal Constitution."

In Inspiration Consolidated Copper Co. v. Mendez, 19 Ariz. 151, 166 P. 278, it used this language:

"The legislative power of the state is not controlled nor controllable by simple mandatory directions given by means of constitutional provisions which direct action, but do not restrict action on the part of the Legislature. When the Legislature is not constitutionally restricted, it may act or not as the occasion may seem proper, and in acting may pass any law the Legislature deems for the welfare of the state, unless prohibited by some not so prohibited are valid."

In construing section 6, article 9, Constitution of this state, which provides that "incorporated cities, towns and villages may be vested by law with power to make local improvements by special assessments, or by special taxation of property benefited," this court, in Brown v. Electrical District No. 2, 26 Ariz. 181, 223 P. 1068, used the following language:

"It is contended that this affirmative investiture of power in certain named municipal corporations to make local improvements by special assessments, or by special taxation of property benefited, is equivalent to the denial of such power to all other corporations, including, of course, hydroelectrical irrigation corporations. This position is not sustainable, for the reason that the Legislature has all power of legislation not expressly forbidden it by the state Constitution, or not surrendered to the federal government."

That the legislature could, under its general powers, enact a law requiring employers to pay the state a certain sum for the promotion of the vocational rehabilitation of those disabled in industry, the same as it could a Workmen's Compensation Law, both being within the police power of the state, there is no question. No affirmative investiture of...