Mulhearn v. Fed. Shipbldg. & Dry Dock Co.

• Decision Date: 13 June 1949
• Docket Number: No. C-7.,C-7.
• Parties: MULHEARN v. FEDERAL SHIPBUILDING & DRY DOCK CO.
• Court: New Jersey Supreme Court

66 A.2d 726

MULHEARN

v.FEDERAL SHIPBUILDING & DRY DOCK CO.

No. C-7.

Supreme Court of New Jersey.

Argued May 23, 1949.

Decided June 13, 1949.

Petition by Federal Shipbuilding & Dry Dock Company for certification to the Division of Workmen's Compensation of the Department of Labor and Industry to review a judgment granting compensation to Daniel Mulhearn.

Petition denied.

William L. Dill, Jr., Newark (Stryker, Tams & Horner, attorneys; William L. Dill, Jr., and John J. Monigan, Jr., Newark, of counsel), argued the cause for the respondent-petitioner.

Patrick F. McDevitt, Jersey City (Louis Reich, Hoboken, attorney; Edward A. Markley and Patrick F. McDevitt, Jersey City, of counsel), argued the cause for the petitioner-respondent.

The opinion of the court was delivered by

VANDERBILT, C.J. The respondent, Federal Shipbuilding and Dry Dock Company, petitioned for certification to the Division of Workmen's Compensation of the Department of Labor and Industry to review a judgment granting compensation to Daniel Mulhearn, the petitioner below. The petition for certification disclosed that Mulhearn, an employee of the respondent, was injured in an accident arising out of and during the course of his employment while working aboard the United States Army transport General Rose. He filed a petition for compensation with the former Workmen's Compensation Bureau and compensation was allowed by its successor, the Division of Workmen's Compensation of the Department of Labor and Industry. It appears that between January, 1947, and January, 1949, the General Rose, as well as a similar ship, the General Hatch, was sent to the shipyards of the respondent for conversion and change of accommodations from wartime naval transport to peacetime army transport. The conversion work was done upon both vessels while they were moored in the Hackensack River alongside a dock at the respondent's shipyards. During the performance of the work numerous employees of the respondent were injured as a result of which approximately 175 petitions for compensation have been filed with the former Workmen's Compensation Bureau and numerous others have been filed with the Federal Security Agency under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. s 901 et seq., 33 U.S.C.A. s 901 et seq.

The respondent raised the defense below that the injuries received by the petitioner, Mulhearn were compensable only under the Longshoremen's and Harbor Workers' Compensation Act and that the Workmen's Compensation Division lacked jurisdiction to award compensation under the New Jersey Workmen's Compensation Act. This defense was overruled by the Division of Workmen's Compensation and the respondent below sought certification primarily to determine this jurisdictional question, which it asserts is a substantial question arising under the Constitution and statutes of both the United States and this State, the determination of which will affect a large number of other cases now pending.

This Court, doubting its jurisdiction to certify a cause from the Division of Workmen's Compensation, requested briefs and oral argument. Article VI, Section V, paragraph 1, of the Constitution of 1947, N.J.S.A., reads:

‘1. Appeals may be taken to the Supreme Court: * * *

‘(d) On certification by the Supreme Court to the Superior Court and, where provided by rules of the Supreme Court, to the County Courts and the inferior courts * * *.’

Our Rules provide for certification only to the Appellate Division of the Superior Court, Rule 1:5-2, and ‘to the trial courts,’ Rule 1:5-3.

The question is thus squarely raised whether or not the Division of Workmen's Compensation is an inferior court within the meaning of the Constitution so that we may review its judgments directly by certification.

To determine the position of the Division of Workmen's Compensation in the state government it is necessary to trace its history and to examine its functions. The Department of Labor was created by P.L.1904, c. 64, p. 152, which authorized the Governor to appoint a commissioner of labor subject to confirmation by the Senate. In 1911 the Workmen's Compensation Act was passed, P.L.1911, c. 95, p. 134, N.J.S.A. 34:15-1 et seq., and at first claims for compensation were adjudicated by the judges of the Court of Common Pleas, Idem, sec. 18. In 1916 the Department of Labor was reorganized with departmental bureaus, P.L.1916, c. 40, p. 67, and by another act of the same year, P.L.1916, c. 54, p. 97, a Workmen's Compensation Aid Bureau was established within the Department. Under it the commissioner of labor was charged with the duty of observing the operation of the Workmen's Compensation Act. In 1918 the act last mentioned was repealed by P.L. 1918, c. 145, p. 429, which at the same time created in the Department of Labor the Workmen's Compensation Bureau. In 1948, as part of the program of reorganizing the executive and administrative instrumentalities of the State under the Constitution of 1947, a Department of Labor and Industry was created in the executive branch of the state government, P.L.1948, c. 446, p. 1762, R.S. 34:1A-1 et seq., N.J.S.A., with the commissioner of labor and industry as the administrator and head of the department. The Division of Workmen's Compensation was one of the three divisions set up in the Department of Labor and Industry, Idem, sec. 5. Thus, it will be observed that since 1918 workmen's compensation has been administered in a department of the executive branch of the government, and this policy has been incorporated in section 1 of the act last referred to establishing ‘in the Executive Branch of the State Government a principal department which shall be known as the Department of Labor and Industry’, R.S. 34:1A-1, N.J.S.A.

Notwithstanding all this, it is argued that the Division of Workmen's Compensation, like the Workmen's Compensation Bureau before it, is a court. It is urged that the commissioner of labor and industry, the director of workmen's compensation and the deputy directors and the referees, all of whom sitting individually or together have exclusive, original jurisdiction of all claims for workmen's compensation under the act, R.S. 34:15-49, N.J.S.A. are in fact as much judges as the judges of any of the trial courts in the State. Their hearing rooms have every appearance of court rooms; the deputy commissioners wear judicial robes; their proceedings are conducted with judicial decorum; the evidence is taken stenographically; by their rules appearances are limited to members of the bar; while they are not bound by the rules of evidence, R.S. 34:15-56, N.J.S.A., they are bound to limit the evidence taken before them to competent testimony. Helminsky v. Ford Motor Co., 111 N.J.L. 369, 168 A. 420 (E. & A. 1938); after the testimony has been taken the hearing officer weighs the evidence and finds the facts, exercising his judgment as any judge does in determining the facts; he reduces his findings to writing, and files his judgment with the secretary of the Division of Workmen's Compensation, and on its being filed in the office of the proper county clerk it may be ‘collected’ in the same manner as judgments of the former Court of Common Pleas, R.S. 34:15-58, N.J.S.A.

But granting that all these characteristics of the work of the Division of Workmen's Compensation are typical of judicial proceedings, the Division still lacks the essential attributes of a court under the new Constitution. First of all, the Constitution requires that the Governor shall nominate and appoint and the Senate confirm not only all of the judges of the courts expressly named in the Constitution but also ‘the judges of the inferior courts with jurisdiction extending to more than one municipality’, Article VI, Section VI, paragraph 1, Geographically the jurisdiction of the Division of Workmen's Compensation extends throughout the State, and if it were a court its judges would have to be appointed by the Governor, subject to confirmation by the Senate. The Constitution further provides that ‘no nomination to any such office (a judge) shall be sent to the Senate for confirmation until after a seven days' public notice by the Governor’, Idem. There is, moreover, a clearly marked public policy evidenced by both the Constitution and the statutes that all our judges shall be members of the bar. The commissioner of labor and industry, however, need not be a member of the bar, R.S. 34:1A-2, N.J.S.A., and the same is true of the director of workmen's compensation, R.S. 34:1A-11, N.J.S.A. The term of each of these officers is for the term of the Governor appointing him and until his successor is appointed and has qualified, Idem. The commissioner of labor and industry may assign the director of workmen's compensation duties in the Division of Labor or the Division of Employment Security R.S. 34:1A-12(e), N.J.S.A.

Not only are the hearing officers of the Workmen's Compensation Division appointed in a different manner than judges and with different qualifications, and for different terms, but the commissioner of labor and industry is expressly given the power as head of his department to exercise a wide variety of administrative and supervisory functions. The exercise of these functions as to the hearing officers of the Division of Workmen's Compensation, were they judges, would infringe on the judicial freedom from interference from outside the judicial establishment, which is a fundamental attribute of a judge. Thus, the commissioner is given the power to administer the work of the department, appointing and removing officers and other personnel subject to R.S. Title 11, Civil Service, N.J.S.A., and other applicable statutes, ‘perform, exercise and discharge the functions, powers and duties of the department through such divisions as may be established by this act or otherwise by law’, etc., R.S. 34:1A-3(c), N.J.S.A.-provisions which not only are inconsistent...