State ex rel. Crabb v. Olinger

• Citation: 82 P.2d 865,196 Wash. 308
• Decision Date: 22 September 1938
• Docket Number: 27170.
• Parties: STATE ex rel. CRABB v. OLINGER, Supervisor of Industrial Insurance.
• Court: United States State Supreme Court of Washington

82 P.2d 865

196 Wash. 308

STATE ex rel. CRABB v. OLINGER, Supervisor of Industrial Insurance.

No. 27170.

Supreme Court of Washington

September 22, 1938

Original mandamus proceeding by the State of Washington, on the relation of Ray Crabb, against Jay Olinger, Supervisor of Industrial Insurance, to compel the Supervisor to transmit voucher to the state auditor in order that the relator may receive the compensation awarded him by the Joint Board of the Department of Labor and Industries.

Writ granted.

John Geisness, of Seattle, for relator.

G. W Hamilton and T. H. Little, both of Olympia, for respondent.

Todd Holman & Sprague, and Lowell P. Mickelwait, all of Seattle amici curiae.

MILLARD Justice.

On December 19, 1932, while in the course of his employment as an employee of the Washington Pulp and Paper Corporation in an extrahazardous industry, Ray Crabb sustained an accidental injury to his neck. On February 2, 1937 the Supervisor of Industrial Insurance of the Department of Labor and Industries entered an order that the claim of Crabb be closed and that he be awarded time loss compensation in the amount of $1,275, and permanent partial disability compensation in the amount of $960.

The review of the above mentioned order by the joint board of the Department on application of Crabb's employer resulted in the entry of an order, April 11, 1938, by the joint board sustaining the action of the supervisor. The employer appealed to the Superior Court for King county from the order made by the joint board. The Supervisor of Industrial Insurance refused to acede to the demand of Crabb for payment of the amount awarded to Crabb by the joint board. The reason assigned for refusal to make the payment is that Crabb's employer appealed to the superior court from the order made by the joint board, which appeal ousted the department of jurisdiction in the case, and that the relator has a plain, speedy and adequate remedy at law by way of appeal.

Based on the foregoing, relator seeks a Writ of Mandate requiring the supervisor to transmit voucher to the state auditor in order that relator may receive the compensation awarded him by the joint board of the department, April 11, 1938.

Counsel for respondent argue that the employer's exercise of its right of appeal from the order of the joint board to the superior court pursuant to the statute (Rem.Rev.Stat. § 7697) divested the department of jurisdiction; that the department can not make a valid and enforcible order in the cause until disposition by the courts (superior and supreme) of the employer's appeal from the joint board's order awarding compensation to relator, and then only such orders as the courts may direct; and that to grant the relief for which the relator prays would deprive the employer of property without due process of law.

The determination of the question whether an employee may by mandamus compel the Supervisor of Industrial Insurance to pay an award for workmen's compensation after the employer has appealed to the superior court from the order by the joint board allowing the claim is dependent upon the effect that is to be given to the italicized portion of the following language of Rem.Rev.Stat. § 7697:

'Within thirty days after the final order of the joint board upon such application for rehearing has been communicated to such applicant, or within thirty days after rehearing is deemed denied as herein provided, such applicant may appeal to the superior court of the county of his residence, * * *. No bond shall be required on such appeal or on appeals to the supreme court, except that an appeal by the employer from a decision of the department under section 7683 [a provision relating to employer's responsibility for safeguard] shall be ineffectual unless, within five days following the service of notice thereof, a bond, with surety satisfactory to the court, shall be filed, conditioned to perform the judgment of the court. Except in the case last named an appeal shall not be a stay.'

The provision denying a stay on appeal has relation to appeals from orders of the joint board to the superior and supreme courts. In the case at bar we are not concerned with appeals under § 7683 referred to above.

While we held in Mud Bay Logging Company v. Department of Labor and Industries, 189 Wash. 285, 64 P.2d 1054; Id., Wash., 75 P.2d 579, that employers were entitled under the Workmen's Compensation Act to appeal from orders awarding compensation to workmen, the question was not presented whether, in the absence of a bond superseding the order, an appeal 'shall not be a stay' of execution.

An appeal to this court from a judgment of the superior court will not stay proceedings on that judgment unless a supersedeas bond is given. Execution may issue immediately after judgment unless execution is stayed by supersedeas bond. The statute (Rem.Rev.Stat. § 1722) gives to a judgment debtor the legal right to stay an execution.

In the absence of a bond superseding the order of which the employer complains in the case at bar--in view of Rem.Rev.Stat. § 7697, granting the right of appeal but denying the right to supersede the order--relator may enforce payment by Writ of Mandamus.

The Workmen's Compensation Act, Rem.Rev.Stat. § 7673 et seq., is highly remedial and beneficent in purpose and should be liberally construed, if necessary, so as to accomplish its evident intent and purpose. Declaring the common law system governing the remedy of workmen against employers for injuries received in hazardous work was inconsistent with modern industrial conditions, the state of Washington, in order to afford a remedy to the workmen that would be certain, expeditious and adequate, declared, in the exercise of its police and sovereign power, '* * * that all phases of the premises are withdrawn from private controversy, and sure and certain relief for workmen, injured in extrahazardous work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as otherwise provided in this act; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished, except as in this act provided.' Rem.Rev.Stat.§ 7673.

An administrative body may be empowered to give final decisions without a right of appeal to the courts. Mott, Due Process of Law, p. 238. It follows that the legislature may, to accomplish the evident intent and purpose of the Workmen's Compensation Act--certain, expeditious and adequate relief to injured workmen--regulate, as it has, the right of appeal.

The section (section 4, chapter 74, Laws of 1911, p. 349, as amended by section 1, chapter 104, Laws of 1931, p. 297, Rem.Rev.Stat. § 7676) of the Workmen's Compensation Act on the subject of schedule of contribution opens with the declaration that inasmuch as industry should bear the greater portion of the burden of the cost of its accidents, each employer shall, prior to January 15 of each year, pay into the state treasury, in accordance with the schedule in the act provided, a sum equal to a certain percentage of his total pay roll for that year, which is deemed the most accurate method of equitable distribution of burden in proportion to relative hazard. That declaration has been carried into every amendment of the section subsequent to 1911.

Following that declaration in section 4 of the act are the rates of contribution which are inflexible but subject to 'future adjustment by the legislature.' The industries are divided into a number of classes but the classifications are subject 'to rearrangement following any relative increase or decrease of hazard shown by experience.'

In State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 P. 1101, 37 L.R.A.,N.S., 466, the character of the contribution imposed under this section was defined as follows [page 1117]:

'It is the consideration which the owners of the industries pay for the privilege of carrying them on. It is therefore in the nature of a license tax, and can be justified on the principle of law that justifies the imposition and collection of license taxes generally. In this state, such taxes may be imposed, either as a regulation or for the purposes of revenue, the only limitation upon the power being that such taxes when imposed on useful trades and industries shall not be unreasonable, and if a class of trades or industries is selected from the whole, and the tax imposed upon the class selected alone rather than upon the whole, that there be some reasonable ground for making the distinction.

* * *

* * *

'The sums exacted from the several industries named we think may be treated as partaking both of the nature of a license for revenue and regulation; as such, however, we find nothing in the principle inimical to either the state or federal Constitutions.'

And it was upheld as such in the face of the contention that it amounted to a taking of property without due process of law, in that it rested an equally heavy hand upon the careful and careless employer--requiring the same measure of contribution from the one who had many.

The opinion is rested wholly on the taxing and police power. In sustaining our position, we did not report to the provision of the section designed to meet the suggested objection, that the rates are subject to future adjustment by the legislature, and the classifications of industries are subject to rearrangement following any relative increase or decrease of hazard shown by experience.

The idea of conforming rates to accident experience was more clearly expressed in the amendment of section 4,...