Industrial Commission v. Agee

• Decision Date: 09 April 1920
• Docket Number: 3446
• Citation: 56 Utah 63,189 P. 414
• Court: Utah Supreme Court
• Parties: INDUSTRIAL COMMISSION et al. v. AGEE

189 P. 414

56 Utah 63

INDUSTRIAL COMMISSION et al. v. AGEE

No. 3446

Supreme Court of Utah

April 9, 1920

Petition for writ of prohibition by the Industrial Commission of Utah, A. M. Miller, and the AEtna Life Insurance Company against Hon. Alfred W. Agee, Judge of the District Court of Weber County, State of Utah.

PERMANENT WRIT DENIED, alternative writ previously issued set aside.

De Vine, Stine & Gwilliams and J. D. Murphy, all of Ogden, for plaintiffs.

Chez &amp Parker, of Ogden, for defendant.

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

OPINION

CORFMAN, C. J.

Plaintiffs petitioned this court for a writ of prohibition, forbidding the defendant, Hon. Alfred W. Agee, as judge of the district court of Weber county, from proceeding to exercise jurisdiction and to determine upon the merits, under the provisions of chapter 100, Laws 1917, section 87 (section 3148, Comp. Laws of Utah, 1917), as amended by chapter 63, Laws of Utah 1919 (section 3148a, page 164), an appeal to said district court taken from a decision rendered by the Industrial Commission of Utah in a certain matter wherein Emma Chandler was applicant and A. M. Miller et al. were defendants. An alternative writ was issued. The defendant has answered.

It appears that on June 29, 1918, Mrs. Emma Chandler, the surviving widow of George C. Chandler, deceased, filed with the Industrial Commission of Utah, under the provisions of chapter 100, Laws of Utah 1917, an application for compensation to account of the death of her husband while an employe of the petitioner herein, A. M. Miller; that on August 16, 1918, the Industrial Commission rendered its decision, denying compensation; that August 31, 1918, said applicant appealed from the decision denying her compensation to the district court for Weber county, in accordance with the provisions of Comp. Laws of Utah 1917, section 3148; that September 13, 1918, applicant filed her complaint in said district court; that January 13, 1919, applicant filed an amended complaint in said cause, wherein the petitioners here, A. M. Miller and the AEtna Life Insurance Company, were made additional parties defendant on said appeal; that January 27, 1919, the said defendants filed a general demurrer to the amended complaint; that April 25, 1919, the said district court ruled that the amended complaint changed the issues in said cause, and therefore referred the case back to the Industrial Commission, as provided by statute, for further proceedings under the original application; that May 6, 1919, the Industrial Commission rendered its second decision and again denied compensation to the applicant, and remanded and certified its proceedings to said district court; that June 30, 1919, the district court set the general demurrer of the defendants for hearing; that July 7, 1919, said demurrer was sustained, and an order made by said district court, dismissing the action on the merits; that thereupon applicant appealed to this court from the order of the district court sustaining the demurrer and dismissing the action on the merits; that November 7, 1919, this court reversed the judgment of the district court dismissing the action, and remanded the case to the district court, with directions to overrule defendants' demurrer and proceed with the case (Chandler v. Industrial Commission of Utah et al., 55 Utah 213, 184 P. 1020); that thereupon said defendants asked for and were granted leave to file an amended demurrer, and also filed a motion for dismissal of the petition, both on the ground that the district court was without jurisdiction; that January 5, 1920, the district court ruled on the demurrer and petition, holding that it had jurisdiction to proceed and determine the appeal upon its merits whereupon the petitioners instituted the present proceedings before this court.

Comp. Laws Utah 1917, section 3148, under which the claimant Emma Chandler presented her claim to and was denied compensation by the Industrial Commission, and under the provisions of which she took an appeal to the district court, provides:

"The commission shall have full power and authority to hear and determine all questions within its jurisdiction, pertaining to the payment of compensation and benefits, and its decision thereon shall be final; provided, however, in case the final action of such commission denies the right of the claimant, * * * then the claimant, within thirty days after the notice of the final action of such commission, may, by filing his appeal in the district court in any county of the district where the injury was inflicted, be entitled to a trial in the ordinary way, and be entitled to a jury if he demands it. * * * Within thirty days after filing his appeal, the appellant shall file a complaint in the ordinary form against such commission as defendant, and further pleadings shall be had in said cause, according to the rules of civil procedure, and the court, or the jury, under the instructions of the court, if a jury is demanded, shall determine the right of the claimant," etc.

In 1919 the Legislature amended in several particulars our Industrial Commission Act, including section 3148, supra, by passing section 3148a of chapter 63, Laws of Utah 1919, which provides, among other things:

"Within thirty days after the application for a rehearing is denied, or if the application is granted, within thirty days after the rendition of the decision on the rehearing any party affected thereby may apply to the Supreme Court of this state for a writ of certiorari or review (hereinafter referred to as a writ of review) for the purpose of having the lawfulness of the original award or the award on rehearing inquired into and determined.

"Such writ shall be made returnable not later than thirty days after the date of the issuance thereof, and shall direct the commission to certify its record, which shall include all the proceedings and the evidence taken in the case, to the court."

Subdivision (d) of the same section provides:

"No court of this state (except the Supreme Court) shall have jurisdiction to review, reverse, or annul any award of the commission or to suspend or delay the operation or execution thereof; provided, that a writ of mandamus shall lie from the Supreme Court in all proper cases."

It is very earnestly contended by the plaintiff that the foregoing legislative enactment of 1919, which became effective July 1, 1919, repealed the law of 1917, and therefore the district court is without jurisdiction to proceed to determine the appeal taken to that court from the decision of the commission denying the claimant compensation. In support of their contention counsel have cited numerous cases and authorities to the effect that when statutes remedial in their nature are repealed by another which affords a new or different remedy, all actions pending, as well as all future actions brought, must be prosecuted under the provisions of the latter, unless there by some express saving clause in the new enactment to the contrary. Among the cases and authorities relied on by plaintiffs are the following: 25 R. C. L. pp. 791, 792; 7 R. C. L. p. 1031; 36 Cyc. pp. 1216, 1217; Texas Midland Ry. v. Southwestern T. & T. Co., 24 Tex. Civ. App. 198, 58 S.W. 152; Re Joseph T. H. Hall, 167 U.S. 38 at 38-40, 17 S.Ct. 723, 42 L.Ed. 69; Larkin v. Saffarans (C. C.), 15 F. 147; Untermeyer v. Freund et al. (C. C.) 50 F. 77; Tennessee v. Sneed, 96 U.S. 69, 24 L.Ed. 610; Clark v. Kansas City, St. L. & C. R. Co., 219 Mo. 524, 118 S.W. 40; Bidwell v. Sonoma Co. Trans. Co. (Cal. App.) 178 P. 722; Boucofski v. Jacobsen, 36 Utah 165, 104 P. 117, 26 L.R.A. (N. S.) 898; Dillon v. Linder, 36 Wis. 344.

In opposition to the contention made by plaintiffs, the defendant contends that the 1919 amendment is...