Parker v. Blackwell Zinc Co.

• Decision Date: 13 May 1958
• Docket Number: No. 37900,37900
• Citation: 325 P.2d 958
• Parties: Donald C. PARKER, Petitioner, v. BLACKWELL ZINC COMPANY and the State Industrial Commission, Respondents.
• Court: Oklahoma Supreme Court

Page 958

325 P.2d 958

1958 OK 119

Donald C. PARKER, Petitioner, v. BLACKWELL ZINC COMPANY and the State Industrial Commission Respondents.

No. 37900.

Supreme Court of Oklahoma.

May 13, 1958.

Syllabus by the Court

1. Where an Act amends an existing section of a statute 'to read as follows,' and purports to be a complete section within itself, any matter which was in the original section, but not in the amendatory section is repealed by the omission.

2. The three-year limitation clause contained in Sec. 6 of the Act of June 6, 1953 (Laws 1953, p. 428) was repealed by Sec. 2 of the Act of June 8, 1953 (Laws 1953, p. 430), by reason of the omission of such clause from the latter Act.

3. The Industrial Commission is not authorized to determine that a claim for disability due to an occupational disease is barred by the failure to file same within the limitation period without first making a finding as to when the claimant was last exposed to the hazard.

Original proceeding by Donald C. Parker, claimant, to review an order of the State Industrial Commission denying compensation on a claim filed by him against employer, Blackwell Zinc Company. Order vacated, with directions.

Farmer & Kerr, Oklahoma City, for petitioner.

Felix Duvall, Ponca City, Mac Q. Williamson, Atty. Gen., for respondents.

JACKSON, Justice.

Claimant, Donald C. Parker, filed a claim against employer, Blackwell Zinc Company, seeking recovery for disability due to an alleged occupational disease. The trial judge held that the claim was barred by limitations, and entered an order denying compensation which was sustained on appeal to the Commission en banc. Claimant brings the case here for review.

The primary question is as follows: What is the limitation of time within which a claim for disability due to an occupational disease must be filed?

In 1953 the Legislature by amending various sections of the Workmen's Compensation Act made provision for recovery of compensation for specified occupational diseases. In this same Act the Legislature revised and amended 85 O.S.1951 § 43 so as to read in part as follows:

'The right to claim compensation under this Act shall be forever barred unless within one (1) year after the injury a claim for compensation thereunder be filed with the Commission unless such claim shall arise from an occupational disease in which case the claimant shall file said claim within (3) years after his last exposure to the hazard to which the claimant attributes as the cause of the occupational disease. * * *'

Two days after the approval and effective date of the above amendment to Sec. 43, supra, a second Act or amendment to Sec. 43 was approved and became effective. The title to this second amendatory Act provides in pertinent part as follows:

'An Act * * * amending Section 43, Title 85, Oklahoma Statutes 1951, as amended; and declaring an emergency.' (Emphasis supplied.)

In the body of the Act we find the following:

'Section 2. Claim for Compensation Barred After One Year-- * * *. That Title 85, Oklahoma Statutes 1951, Section 43, is hereby amended to read as follows:

'Section 43. The right to claim compensation under this Act shall be forever barred unless within one (1) year after the injury or death a claim for compensation thereunder shall be filed with the Commission. Provided, however, claims may be filed at any time within one (1) year from the date of last payment of any compensation or remuneration paid in lieu of compensation. * * *'

It is observed that under the second amendatory Act the one-year limitation period is applicable to all claims, and no reference to occupational diseases is made. The provision for a three-year period of limitations for occupational diseases is eliminated. This second Act, or amendment, now appears in the 1957 Supp. as an additional Sec. 43.

It is obvious that there can be but one Sec. 43. Both Acts purport to be complete and the second Act expressly provides that Sec. 43, 'is hereby amended to read as follows.'

In Ratliff v. Cornelius, County Clerk, 49 Okl. 91, 151 P. 675, it is held in the first paragraph of the syllabus as follows:

'Where a section, expressly amendatory of another section of a statute, purports to set out in full all that it is intended to contain, any matter which was in the original section, but not in the amendatory section, is repealed by the omission.'

In our opinion the second Act completely obliterated the prior amendatory section as such. Therefore, we do not have two related statutes to construe for the purpose of arriving at the legislative intent as was the case in State v. Prairie Oil & Gas Co., 64 Okl. 267, 167 P. 756. Here we have only one statute on the subject which is the one last enacted and which does not contain the three-year provision. It is possible that the omission of the three-year provision in the second Act was unintentional since the Legislature left unchanged a provision in Sec. 24, which extends the time for giving notice of an injury caused by an occupational disease to eighteen months after the last hazardous exposure. But we cannot speculate as to the Legislature's unexpressed intention in the face of an unequivocal legislative enactment.

In People v. Lowell, 250 Mich. 349, 230 N.W. 202, 204, the court said:

'It is plain from the authorities in this state and elsewhere that the effect of an act amending a specific section of a former act, in the absence of a saving clause, is to strike the former section from the law, obliterate it entirely, and substitute the new section in its place. This effect is not an arbitrary rule adopted by the courts. It is the natural and logical effect of an amendment 'to read as follows.' It accomplishes precisely what the words import. Any other construction would do violence to the plain language of the Legislature.' (Emphasis supplied.)

See also State v. Horner, 48 Okl.Cr. 141, 290 P. 197; Martinka v. Hoffmann, 214 Minn. 346, 9 N.W.2d 13; Skinner v. Davis, 156 Or. 174, 67 P.2d 176.

Furthermore, even if it were proper in this case to consider the legislative intent and assume that the Legislature intended to leave the three-year provision in force, we would have to ignore such intent for another reason. In Board of County Com'rs of Tulsa County v. Oklahoma Tax Commission, 202 Okl. 269, 212 P.2d 462, it was held that art. 5, § 57, of the Oklahoma Constitution, requires that when a section of an Act is amended, it must be complete within itself, so that when published as amended it will contain all the law on the subject embraced within the section. Therefore, it is clear that regardless of what was intended the three-year provision is not now a part of Sec. 43, since it was not included in the last Act, which Act is complete within itself, as required by the Constitution.

In State ex rel. Gebhardt v. Superior Court for King County, 15 Wash.2d 673, 131 P.2d 943, 951, the court was confronted with a problem very similar to that in the instant case. In that case the court said:

'A legislative intention, not expressed in some appropriate manner, has no legal existence. Lewis' Sutherland Statutory Construction, p. 745. The legislature is presumed to know the principles of statutory construction.'

The facts in the Washington case furnish a close parallel for our consideration in the case at bar. In that case the Legislature had passed two Acts upon the same subject matter during the same session of the Legislature, both providing that a certain section of the law should be amended 'to read as follows.' A new provision contained in the first Act was omitted from the second Act. The two Acts were not inconsistent.

The Constitution of the State of Washington contained a provision (similar to Art. 5, § 57, of the Oklahoma Constitution) which provides, in substance,...