Rosebraugh v. State Social Security Commission

• Decision Date: 31 July 1946
• Docket Number: No. 6592.,6592.
• Citation: 196 S.W.2d 27
• Parties: ROSEBRAUGH v. STATE SOCIAL SECURITY COMMISSION.
• Court: Missouri Court of Appeals

196 S.W.2d 27

ROSEBRAUGH v. STATE SOCIAL SECURITY COMMISSION.

No. 6592.

Springfield Court of Appeals. Missouri.

July 31, 1946.

Appeal from Circuit Court, Phelps County; William E. Barton, Judge.

Proceeding by William Rosebraugh against the State Social Security Commission to obtain old age assistance. From a judgment of the circuit court reversing a decision of the commission and remanding the cause to the commission for reinstatement of William Rosebraugh on the rolls of the commission, the commission appeals.

Affirmed as modified.

Elmore G. Crowe and Alfred Moody Mansur, boh of Jefferson City, for appellant.

W. D. Jones, of Rolla, for respondent.

FULBRIGHT, Presiding Judge.

This is an appeal by the State Social Security Commission from a judgment of the Circuit Court of Phelps County, rendered on the 4th day of April, 1945, wherein it was ordered and adjudged by the court that the decision of said Commission "be reversed and the cause be remanded to the State Social Security Commission and that applicant be reinstated on the rolls of said Commission."

William Rosebraugh, applicant and respondent herein, had been a recipient of old age assistance but was removed from the rolls February 29, 1944, after a reinvestigation. He thereupon applied to the Commission for a rehearing and due notice thereof having been given, a hearing was had at the Social Security office in the City of Rolla, Missouri, and the Commission found that the "claimant does not come within the purview of Section 9406, Revised Statutes of Missouri 1939, and application for old age assistance is denied." Thereafter, respondent duly appealed to the Circuit Court of Phelps County, where the court, on April 4, 1945, found the issues for applicant and that the finding of the Commission was arbitrary and unreasonable, and the cause was reversed and remanded to the Commission with directions that applicant be restored to the rolls of the Commission. On the same day, defendant-appellant, under the provisions of Section 9411, of the Social Security Act, filed its affidavit for appeal to this court. In due course the cause was submitted here on the brief of appellant, assigned and an opinion written, in which all members of the court concurred, wherein this court dismissed the appeal for want of jurisdiction for the reason that the transcript did not show that applicant gave notice to respondent that the judgment had been appealed from as required by Section 129, Laws of Missouri 1943 p. 390, Mo.R.S.A. § 847.129; that notice of such appeal was never served on respondent. Upon a motion for rehearing and transfer this court withdrew the above mentioned opinion and the cause comes to the writer on reassignment.

We shall first determine whether or not the appeal herein is valid and conferred jurisdiction on this court.

The enactment of the new Civil Code of Missouri has resulted in some confusion. Section 2 thereof, Laws of Missouri 1943, p. 357, Mo.R.S.A. § 847.2, reads in part as follows: "This code shall be known and cited as the Civil Code of Missouri and shall govern the procedure in the supreme court, court of appeals, circuit courts and common pleas courts in all suits and proceedings of a civil nature whether cognizable as cases at law or in equity, unless otherwise provided by law. * * *" (Italics ours.)

The succeeding Section 3 of said Code, Mo.R.S.A. § 847.3, provides that it "will take effect on January 1, 1945. It governs all proceedings in actions brought after it takes effect and also further proceedings in all actions then pending, * * *."

Section 129 thereof, Laws of Missouri 1943, p. 390, reads in part as follows: "When an appeal is permitted by law from a trial court and within the time prescribed, a party or his agent may appeal from a judgment or order by filing with the clerk of the trial court a notice of appeal. No such appeal shall be effective unless the notice of appeal shall be filed not later than 10 days after the judgment or order appealed from becomes final. After a timely filing of such notice of appeal, failure of the appellant to take any of the further steps to secure the review of the judgment or order appealed from does not affect the validity of the appeal, but is ground for such action as the appellate court deems appropriate, which may include dismissal of the appeal."

The three sections from which we have quoted fixes the manner and procedure to be followed in taking an appeal from the Circuit Court to the Supreme Court or Appellate Court, etc., unless otherwise provided by law, and in construing the same they must be considered together, ever keeping in mind that "courts must interpret and apply such statutes in the manner [the courts] perceive the legislature intended." Chapman v. State Social Security Commission, 235 Mo.App. 698, 147 S.W.2d 157, 159.

It must also be kept in mind that Section 2 applies to the procedure in "all suits and proceedings of a civil nature," except and unless such procedure is "otherwise provided by law." The clear inference, in fact, the only inference that can be drawn from said Section is that the Code governing appeals does not apply to appeals under the Social Security Act since Section 9411, R.S.Mo.1939, Mo.R.S.A., of said Act, which was in full force and effect at the time the new Code was enacted, sets out the manner of taking appeals in Social Security Cases and covers appeals from the State Administrator to the State Commission, from the State Commission to the Circuit Court and from the Circuit Court to any appellate court and is applicable only to cases or proceedings arising under the Social Security Act. It is obvious that the words, "unless otherwise provided by law" were written into Section 2, of the Civil Code of Missouri, to preserve the special methods or manner of procedure such as is found in the Social Security Act, including the manner of taking appeals.

In the case of Wood v. Wagner Electric Corp., Mo.App., 192 S.W.2d 579, loc. cit. 584, Judge McCullen of the St. Louis Court of Appeals, says: "The Supreme Court and our Courts of Appeals have in numerous cases held that proceedings under the Workmen's Compensation Law are purely statutory; that the Compensation Law is special and out of the course of the common law, and that the General Code of Civil Procedure is not applicable thereto; that the Workmen's Compensation Law is a code unto itself; and that the rights of the parties and the manner of procedure in a workman's compensation claim must be determined by the provisions of that Law. De May v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640; Kristanik v. Chevrolet Motor Co., 226 Mo.App. 89, 41 S.W.2d 911." What we have above quoted applies with equal force to the Social Security Act. Chapman v. State Social Security Commission, supra; Brownfield v. Social Security Commission, 236 Mo.App. 333, 155 S.W.2d 905.

Section 3, supra, fixes the effective date of the Civil Code of Missouri and, what is stated therein relative to proceedings in actions after it takes effect and further proceedings in all actions then pending has reference solely to procedure in actions that fall within the scope of Section 2. And, by the same token, the provisions of Section 129 fall within the same scope and have no application to suits or proceedings wherein the procedure is otherwise governed by law, as in Social Security cases.

By a thorough examination of the Civil Code of Missouri we find that the provision for or manner of taking an appeal from the circuit court to an appellate court in a Social Security case, as provided by Section 9411, supra, has not been specifically repealed, and, after a diligent study of all the pertinent provisions of the Civil Code it is our conclusion that neither the method of appeal, as provided in the Social Security Act, nor any part thereof has been repealed by implication. While it is true that "an act may be repealed by necessary implication if a later act is so repugnant to the former that the two cannot stand, even though no mention is made of the former act in the later" (Vining v. Probst, Mo.App., 186 S.W.2d 611), nevertheless, even though two acts are seemingly repugnant they must, if possible, be so construed that the latter will not operate as a repeal by implication of an earlier one and if they are not irreconcilably inconsistent both must stand. Graves et al. v. Little Tarkio Drainage District No. 1, et al., 345 Mo. 557, 134 S.W.2d 70.

It is well settled that repeal by implication is not favored and if by any fair interpretation the sections of the statute can stand together there is no repeal by implication. It may be further said that the repeal of a statute, or any part thereof, by a subsequent statute is a question of intention on the part of the Legislature and there is a presumption against the intention to repeal where express terms to that effect are not used. State v. Malone, Mo.App., 192 S.W.2d 68, and cases there cited.

If we should assume that the Civil Code of Missouri is repugnant to the Social Security Act with respect to appeals, the provision, "unless otherwise provided by law", contained in Section 2 of said Code removes the application of the Code in Social Security cases.

Therefore, the procedure followed by appellant in taking this appeal complies strictly with the provisions of Section 9411, supra, is valid in all respects, vests jurisdiction in this court and the cause should be and will be disposed of on its merits.

The law is well settled that if there is any substantial evidence to support the finding of the Commission it is not within the province of this court to disturb such finding. Howlett v. Social Security Commission, 347 Mo. 784, 149 S.W.2d 806; Kelley v. State Social Security Commission, 236 Mo.App. 1058, 161 S.W.2d 661; Dunnavant v. State Social Security Commission, 235 Mo.App. 1107, 150 S.W.2d 1103.

It must also be borne in mind that when an application is made to the ...