State ex rel. Goldman v. Missouri Workmen's Compensation Commission

• Decision Date: 05 November 1930
• Citation: 32 S.W.2d 142,225 Mo.App. 59
• Parties: STATE OF MISSOURI EX REL. IRWIN GOLDMAN, RELATOR, v. MISSOURI WORKMEN'S COMPENSATION COMMISSION, RESPONDENT
• Court: Missouri Court of Appeals

32 S.W.2d 142

225 Mo.App. 59

STATE OF MISSOURI EX REL. IRWIN GOLDMAN, RELATOR, v. MISSOURI WORKMEN'S COMPENSATION COMMISSION, RESPONDENT

Court of Appeals of Missouri, St. Louis

November 5, 1930

Mandamus. Original Proceeding.

ALTERNATE WRIT OF MANDAMUS MADE PERMANENT.

Alroy S. Phillips, for relator.

Stratton Shartel, Attorney-General, and Albert Miller, Assistant Attorney-General for respondent.

BENNICK C. Haid, P. J., and Becker and Nipper, JJ., concur.

OPINION

BENNICK, C.

This is a proceeding in mandamus whereby relator, Irwin Goldman seeks to have respondent, Missouri Workmen's Compensation Commission, compelled to certify to the Circuit Court of the city of St. Louis, without cost to him, all the papers on file in the matter of his claim for compensation from Goldman-O'Brien-Nassauer Manufacturing Company, employer, and Employers' Liability Assurance Corporation, insurer, pursuant to an appeal taken by him from the final award of the commission.

The facts, about which there is no controversy, are that relator sustained an injury to his right hand, said injury having been by accident arising out of and in the course of his employment; that for said injury the insurer provided relator with medical aid, and at various times paid relator on account a total of $ 531.43; that on March 25, 1929, and within six months from the date of the last of said payments, relator duly filed with the commission his claim for compensation; that said claim was heard before a referee of the commission on September 10, 1929; and that on October 24, 1929, an award was entered in favor of relator, and against the employer and its insurer, allowing to relator the sum of $ 20 a week for thirty-five weeks, subject to credit for the payments theretofore made to him.

It further appears that on November 8, 1929, relator, with a view to the taking of an appeal from the final award of the commission which he regarded as inadequate, filed with the commission his motion for leave to prosecute his claim and appeal as a poor person; that said motion was heard before one of the commissioners alone, who sustained the same; that on November 13, 1929, relator duly filed with the commission his notice of appeal from said final award to the Circuit Court of the city of St. Louis, and requested the commission, under its certificate, to return to such court all documents and papers on file in the matter, together with the transcript of the evidence, the findings and award, order or decision, as provided in Section 44 of the Act; and that thereafter, on November 21, 1929, the full commission, without a further hearing, and notwithstanding the taking of the appeal to the circuit court, denied relator's motion to sue as a poor person.

The basis of relator's right to the issuance of our writ of mandamus, as the same is to be gathered from his petition therefore which was filed in this court on July 15, 1930, is that under the provisions of Section 44 of the Act, upon the filing by him of his notice of appeal, it was the duty of the commission, under its certificate, to return to the circuit court all documents and papers on file in connection with his claim, together with a transcript of the evidence, the findings and award, so that the same might become the record of the cause; that he had demanded of the commission that it perform its duty as aforesaid, and so return the record of the cause, but that the commission had refused to return said record unless relator pay the commission therefor the fees and charges provided in Section 64 of the Act, amounting, so he pleads, to a large sum of money; that relator is a poor person, and has no money or property with which to pay such charges; and that without the aid of this court through its writ of mandamus, he has no remedy in the premises.

The prayer of the petition was that the commission be required and commanded, without further excuse, refusal, or delay, and without charging and collecting the fees provided in Section 64 of the Act, to proceed to perform the duty imposed upon it by Section 44 of the Act, and, under its certificate, return to the circuit court all documents and papers on file in the matter of relator's claim.

Contemporaneously with the filing of relator's petition, respondent's motion to dismiss, based upon jurisdictional grounds, was also filed. Thereafter, on September 16, 1930, our alternative writ of mandamus, conforming to the prayer of the petition therefor, was ordered to issue, and the issuance and service of the same was waived. A return was thereupon filed by respondent, followed by the filing of a demurrer and answer thereto on behalf of relator; and with the proceeding thus at issue, it was duly argued and submitted to the court.

The first question for determination, and incidentally one that is earnestly stressed by learned counsel for respondent, both in the motion to dismiss and in the return, is that this court has no original jurisdiction by mandamus to entertain this proceeding; that we have no jurisdiction over the subject-matter of the action, and no jurisdiction over the person of respondent, for the reason that respondent is a department of the state government of the state of Missouri, and as such is a "state officer," within the meaning of Section 12, Art. VI, of the Constitution of Missouri; that being a state officer, respondent is a "party" to this cause of action, within the meaning of Section 12, Art. VI, of the Constitution of Missouri; that this proceeding is a "case," within the meaning of Section 12, Art. VI, of the Constitution of Missouri; and that therefore, jurisdiction both of the subject-matter of the action, and of the person of respondent, is vested exclusively in the Supreme Court.

Suffice it to say, as counsel for respondent are fully aware, that when relator first petitioned this court for the issuance of its writ, we denied the same for doubt as to our jurisdiction. Thereafter the identical petition, designating the identical parties, and praying for the identical relief (so we are informed by counsel), was filed in the Supreme Court; and that court in banc, in an opinion filed, State ex rel. Goldman v. Missouri Workmen's Compensation Commission, 27 S.W.2d 1026, held pointedly and definitely that the commission was not a "state officer," as regards the jurisdiction of this court to issue mandamus against the commission because of the contention that a state officer was a party to the proceeding. It follows, therefore, that the point...