School Dist. No. 1 in City & County of Denver v. Industrial Commission of Colorado

• Decision Date: 03 November 1919
• Docket Number: 9440.
• Citation: 185 P. 348,66 Colo. 580
• Parties: SCHOOL DIST. NO. 1 IN CITY AND COUNTY OF DENVER v. INDUSTRIAL COMMISSION OF COLORADO.
• Court: Colorado Supreme Court

185 P. 348

66 Colo. 580

SCHOOL DIST. NO. 1 IN CITY AND COUNTY OF DENVER v. INDUSTRIAL COMMISSION OF COLORADO.

No. 9440.

Supreme Court of Colorado, En Banc.

November 3, 1919

Error to District Court, City and County of Denver; John H Denison, Judge.

Action by the Industrial Commission against School District No. 1 in the City and County of Denver. Judgment for plaintiff, and defendant brings error.

Affirmed.

Pershing Nye, Fry & Tallmadge, and Herbert M. Munroe, all of Denver for plaintiff in error.

Victor E. Keyes, Atty. Gen., Charles Roach, Deputy Atty. Gen Charles H. Sherrick, Asst. Atty. Gen., and Walter E. Schwed, of Denver, for defendant in error.

BAILEY J.

This action was brought by The Industrial Commission against School District Number 1, in the City and County of Denver, to recover $16,865.74, alleged to be due as a premium on compensation insurance under the Workmen's Compensation Act, (Laws 1915, p. 515). Trial was to the court upon stipulated facts. Judgment was for plaintiff, which judgment the defendant brings here for review.

The assignments of error relied upon by defendant relate chiefly to the right of the Commission to bring the action in its present form, and also to the constitutionality of those portions of the Act under which the premium that it is now sought to collect was ascertained and levied. By the stipulation it is agreed that if the Commission is entitled to recover at all, the judgment rendered is correct in amount.

It is urged by defendant that the Commission can enforce payment, if at all, only by virtue of sections 45 and 46 and that portion of section 47 of the Compensation Act which is as follows:

'In October, 1915, and in February of each year thereafter the state treasurer shall certify to the Commission the amount of money that has been paid to him for credit to the State Compensation Insurance Fund as provided in this Act and the amount paid by the state itself, and by each county, city, town, irrigation or school district therein, and at the same time shall certify to the Commission the name of such as may have made default in the payments thereinbefore provided, and the respective amounts for which they are in default. When any default is made in the payment of the sums hereinbefore required to be contributed to the State Insurance Fund, or when any official fails, neglects or refuses to perform any act or acts required to be performed by him with reference to the making of such payments, it shall be the duty of the Commission forthwith, to institute the proper proceedings in Court to compel such payment or payments to be made. The Commission shall keep a separate account of the money paid into the State Compensation Insurance Fund by the State and by its political sub-divisions as hereinabove provided, and the disbursements made therefrom on account of the injuries to and death of public employés, subject to the provisions of this Act.'

Under the terms of the above and the other sections of the Act relied upon and referred to by the School District upon this point, it is argued that the only right given the Commission is the right to compel the proper public officer, or set of public officers, to perform some duty or duties enjoined upon them by the Act, in reference to the State Compensation Insurance Fund, and that the Legislature provided no duty for the School District, or any of its officers, in reference thereto. It is urged, therefore, that the proper and only remedy open to the Commission is that of mandamus.

Section 21 of the Act, however, provides as follows:

'If any employer shall be in arrears for more than five days in any payment required to be made by him to the State Compensation Insurance Fund, as provided in this Act, he shall by virtue of such arrearage be in default of such payment, and the amounts due from him shall be collected by civil action against him in the name of the Commission as plaintiff; and it shall be the duty of the Commission to certify to the Attorney General of the State the names and residences of all employers known to the Commission to be in default for such payments for a long period than five days, and the amount due from each such employer, and it shall then be the duty of the Attorney General forthwith to bring or cause to be brought against each such employer a civil action in the proper court for the collection of such amount so due and the same when collected, shall be paid into the State Compensation Insurance Fund. * * *'

This section plainly provides the proper proceedings in court, to which reference is made in section 47.

By section 4, subsection d (1), of the Act, the term 'employer' is expressly and directly made to include school districts, and all public institutions and administrative boards thereof, without regard to the number of persons in the service of any such public employer; and provides that all such public employers shall at all times be subject to the compensation act. In order to hold that by the provisions of section 47 a school district is immune from the penalties and process of section 21, it would be necessary to construe section 47 as declaring that in case of non-payment by a school district the only remedy provided was one against delinquent state or county officers, and in effect to withdraw from the section in cases where a school district is involved, the provision therein that:

'When any default is made in the payment of the sums hereinbefore required to be contributed, * * * it shall be the duty of the Commission forthwith to institute the proper proceedings in court to compel such payment or payments to be made.'

To so hold as to school districts, would manifestly be unreasonable, discriminatory, and in view of section 21, illogical and utterly unwarranted. This is especially true when, as in this case, the defendant school district denies that it is an employer under the provision of the Act, and claiming therefore that it is in no way subject to or controlled by it. And further, where, as here, it is admitted that the premium in question, and no part of it, has been paid. The question whether mandamus might not, under some state of facts, be a proper remedy, is not involved, and need not now be considered or determined. It is clear, however, that section 47 does not limit the Commission to that remedy, and that under other sections of the Act, taken and considered with section 47, such a proceeding as this is clearly contemplated, and is therefore entirely proper and sufficient.

The attack by the school district upon the constitutionality of the Act is upon the theory that those portions under...