Industrial Commission of Utah v. Daly Mining Co.

• Decision Date: 03 April 1918
• Docket Number: 3181
• Citation: 172 P. 301,51 Utah 602
• Court: Utah Supreme Court
• Parties: INDUSTRIAL COMMISSION OF UTAH v. DALY MINING CO

172 P. 301

51 Utah 602

INDUSTRIAL COMMISSION OF UTAH v. DALY MINING CO

No. 3181

Supreme Court of Utah

April 3, 1918

Original application for writ of mandate by the Industrial Commission of the State of Utah to compel the Daly Mining Company to furnish security for payment of compensation to employees.

WRIT GRANTED.

Dan B Shields, Atty. Gen., and Jas. H. Wolfe and O. C. Dalby, Asst Attys. Gen., for plaintiff.

Marioneaux Stott & Beck for defendant.

FRICK, C. J. McCARTY, CORFMAN, THURMAN, and GIDEON, JJ., concur.

OPINION

FRICK, C. J.

This is an original application to this court by the plaintiff, hereinafter for convenience called the "commission," for a writ of mandate to require the defendant to comply with a certain order made by the commission to which we shall more specifically refer later. An alternative writ was duly issued requiring the defendant to comply with the order of the commission or to appear in this court and show cause why it refuses to do so. The defendant appeared and filed a general demurrer and answer at the same time. In view that the answer raises no material issue, the whole controversy was presented on the general demurrer.

The application for the writ is predicated on chapter 100, Laws Utah 1917, p. 306. The act is quite voluminous and is divided into more than 100 sections, some of which are in themselves very long. It is not practical to set forth the act at length nor to give all of its provisions even in condensed form. We shall therefore set forth such portions only of the act as are deemed strictly essential to a full understanding of the controversy, and the other portions that are deemed material will be stated in condensed form merely.

The act creates what is termed the Industrial Commission of Utah, which is the plaintiff here, called the "commission." The arrangement of the various matters contained in the act is not as orderly and logical as it might have been made, yet, when the objects and purposes of the act are considered and it is viewed as a whole, the intention of the Legislature, we think, can readily be ascertained. When that intention is once ascertained, it necessarily controls. 2 Lewis, Sutherland, St. Const., section 347. Counsel for the respective parties are, however, hopelessly at variance as to the real meaning of the several provisions of the act, and especially with respect of whether the provisions of the act are compulsory and thus require the employer to secure in advance the payment of any compensation to which any employee may become entitled under the act. The Attorney General insists with much vigor that in that regard the act is manifestly compulsory, while counsel for defendant with much force contend that the act is elective, or, at most, coercive. Whether it is the one or the other is the only question that is presented for determination, and we shall now, as briefly as possible, proceed to a consideration of that question.

We shall first set forth the portions of the act as before indicated. We shall refer to the sections in the order they are numbered in the act, regardless of the matter contained therein.

After stating matters of inducement and providing for the organization of the commission, in sections 1 to 31, section 32 prescribes rather drastic penalties in case any of the provisions or requirements of the act are violated.

Section 34 provides that all employers of labor, in January of each year, must make and file with the commission certain statements as provided in that section.

Section 35 creates what is termed "the state insurance fund for the purpose of insuring employers against liability for compensation under this act, and of assuring to the persons entitled thereto the compensation provided by this act."

Section 41 provides that all employers who insure in "the state insurance fund" shall receive from the commission a contract or policy of insurance in a form to be approved by the state commission.

Section 50 reads as follows:

"The following shall constitute employers subject to the provisions of this act: (1) The state and each county, city, town, and school district therein. (2) Every person, firm, and private corporation, including every public utility, that has in service four or more workmen or operatives regularly in the same business, or in or about the same establishment under any contract of hire, express or implied, oral or written, except agricultural laborers and domestic servants; provided, that employers who have in service less than four employees shall have the right to come under the terms of this act by complying with the provisions thereof, and all the rules and regulations of the commission. The term 'regularly' as herein used shall include all employments, whether continuous throughout the year or for only a portion of the year. It means all employments in the usual course of the trade, business, profession or occupation of an employer."

Section 51 defines what employees come within the provisions of the act.

Section 52a provides:

"If a workman receives personal injury by accident arising out of and in the course of his employment, his employer, or the insurance carrier shall pay compensation in the amounts and to the person or persons hereinafter specified."

Section 53 reads as follows:

"Employers, but not including municipal bodies, shall secure compensation to their employees in one of the following ways: (1) By insuring and keeping insured the payment of such compensation with the 'state insurance fund;' or (2) by insuring and keeping insured the payment of such compensation with any stock corporation or mutual association authorized to transact the business of workmen's compensation insurance in the state; or (3) by furnishing to the commission satisfactory proof of financial ability to pay direct the compensation in the amount and manner and when due as provided for in this act. In the latter case the commission may in its discretion require the deposit of acceptable security, indemnity, or bond to secure the payment of compensation liabilities as they are incurred.

"All stock corporations or mutual associations transacting the business of workmen's compensation insurance in this state under the terms of subdivision 2 of this section shall be subject to the rules and regulations of the commission with respect to rates to be charged, and methods of compensation to be used."

Section 54 provides:

"If the insurance so effected is not with the 'state insurance fund' the employer shall forthwith file with the commission in form prescribed by it a notice of his insurance, together with a copy of the contract or policy of insurance."

Section 61 merely fixes the rights of employees who are covered by insurance in the "state insurance fund."

Section 63 is important, and hence we set it forth in full. It reads as follows:

"Subject to the approval of the commission, any employer may enter into or continue any agreement with his employees to provide a system of compensation, benefit or insurance in lieu of the compensation and insurance provided by this act. No such substitute system shall be approved unless it confers benefits upon injured employees and their dependents, at least equivalent to the benefits provided by this act, nor if it requires contributions from the employees unless it confers benefits in addition to those provided under this act at least commensurate with such contributions.

"Such substitute system may be terminated by the commission on reasonable notice and hearing to the interested parties if it shall appear that the same is not fairly administered or if its operation shall disclose defects threatening its solvency, or for any substantial reason it fails to accomplish the purposes of this act; and in this case the commission shall determine upon the proper distribution of all remaining assets, if any, subject to the right of any party in interest to take an appeal as in other cases of appeal from the orders of the commission. Any employer who makes a deduction for such purposes from the wages or salary of any employee entitled to the benefits of this act shall be guilty of a misdemeanor. Provided, that subject to the supervision of the commission nothing in this act shall be construed as preventing the employer and his employees entering, and it shall be lawful for them to enter, into mutual contracts and agreements respecting hospital benefits and accommodations and medical and surgical services, nursing and medicines to be furnished the employees as in this act provided; but no profit, directly or indirectly, shall be made by any employer as a result of such contract or agreement, the purpose and intent of this act in such respect being that where hospitals are maintained and medical and surgical services and medicines furnished, by the employer from payments by or assessments of his employees, such payments or assessments shall be no more or greater than necessary to make such hospital benefits and accommodations, including surgical and medical services and medicines, self-supporting for the care and treatment of his employees, and all sums received or retained by the employer from the employees for such purpose shall be paid and applied thereto; and provided further, that such hospitals so maintained in whole or in part by payments or assessments of employees, shall be subject to the inspection and under the supervision of the commission as to services and treatment rendered such employees."

Section 64 provides that all employers who do not insure either in the "state insurance fund" or with some other insurance company must, nevertheless, pay into the state treasury a tax equal to the premium tax that insurance companies generally are...