State ex rel. McHugh v. Industrial Com'n
| Decision Date | 24 June 1942 |
| Docket Number | 28882. |
| Parties | STATE ex rel. MeHUGH v. INDUSTRIAL COMMISSION. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. Authority conferred upon the Legislature by Section 35 Article II of the state Constitution, 'to classify all occupations,' comprehends a classification of each and every occupation according to degree of hazard affecting the occupation engaged in by an employer.
2. Whatever the nature of the work of the individual employees of a general building contractor or the part performed by each in the organized force of the employer, the hazard of the employment depends upon the character of the work in which all are jointly engaged, whether the collective term applied thereto be occupation, industry or business.
3. The action of the Industrial Commission in applying to the pay roll of a general building contractor the premium rates applicable to the classification denominated 'Building Construction' and in refusing to separately classify and rate the several occupations and functions of relator's various employees doing work on the building which he has contracted to erect is not violative of, but in conformity with, Section 35, Article II of the state Constitution.
This is an original action in mandamus in this court. The issues are made by the petition of the relator, James McHugh, for a writ of mandamus and a general demurrer filed on behalf of the respondent, the Industrial Commission of Ohio.
The relator alleges that he is an employer of more than three persons and therefore a contributor to the state insurance fund under risk No. 138295. Relator is the contractor for a portion of the work in connection with the construction by the Cincinnati Metropolitan Housing Authority of a certain government housing project, at Cincinnati, Ohio known as the Winton Terrace Project, consisting of 92 buildings of brick construction, two stories in height and containing in all 604 private residence units.
Relator says that he has sublet to various contractors all the work covered by his contract except the concrete and cement work brick work and stone setting, and the carpenter work, which relator is performing and which is the only work in which his employees are engaged. The street paving, sewer and water mains, heating systems, plumbing and hot water heating, and the electrical work are separate contracts made by the Cincinnati Metropolitan Housing Authority with other contractors, and relator has no interest in these contracts and is performing no work in connection with these contracts.
Relator says that on May 24, 1940, the respondent Industrial Commission assigned to the relator classification or manual No. 5601, appearing in its manual of premium rates as follows:
"Manual Description of Premium
No. Industry Rate.
"5601 General building $4.50 per
construction including all $100 of
operations incidental pay roll.
thereto, with the exception
of the erection
of structural iron
and steel."
Since that date relator has been compelled to report his pay rolls under and pay premiums in accordance with manual No. 5601.
Relator further says that his employees who are carrying out his portion of the contract above referred to are engaged in various occupations, such as brick and stone masons, carpenters, cement workers and others; that the respondent has heretofore separately classified such occupations and has established rates of premiums applicable thereto, which classifications and rates of premium are and have been for many years published in its manual of premium rates above referred to; and that the relator has demanded the right to report his pay rolls in accordance with such classifications and to pay premiums in accordance with the rates established therefor, but the respondent has refused and still refuses to permit him so to do.
Relator charges that the actions of the respondent are unjust, unlawful, capricious and a gross abuse of discretion and in direct violation of the provisions of Section 35, Article II of the Constitution of the state of Ohio, and that, by reason of respondent's action as aforesaid, relator has been compelled to contribute into the state insurance fund a sum, the amount of which the relator is unable definitely to state, in excess of the amount he would have contributed if his employees had been classified in accordance with the provisions of Section 35, Article II of the Constitution of Ohio.
Relator therefore prays that a writ of mandamus issue commanding the respondent to classify the occupations of his employees engaged in the work above set forth according to their degree of hazard, to compute the premiums upon the basis of such classifications and to refund to relator the premiums paid in excess of the amount so computed.
Arnold Wright, Purpus & Harlor and Earl F. Morris, all of Columbus, for relator.
Thomas J. Herbert, Atty. Gen., and E. P. Felker, of Akron, for respondent.
The specific question of law presented to the court upon argument of the demurrer to the petition is whether the Industrial Commission may apply to the relator's pay roll the premium rates applicable to a general contractor instead of the separate rates covering the various operations actually performed by his employees on the building which he has contracted to erect.
It is the contention of the relator that the actions of the commission in refusing to separately classify and rate the occupations of relator's employees 'is unlawful and a violation of Section 35, Article II of the Constitution of Ohio.'
The constitutional provision is in part as follows:
'Laws may be passed establishing a board which may be empowered to classify all occupations, according to their degree of hazard, to fix rates of contribution to such fund according to such classification * * *.'
Prior to the adoption of this constitutional provision a workmen's compensation law had been enacted which contained a provision (in a section codified as Section 1465-53, General Code, 102 Ohio Laws, 527) that 'the state liability board of awards shall classify employments with respect to their degree of hazard,' etc.
That section was amended February 26, 1913, the only change in the above-quoted portion being the substitution of the word 'occupations' for 'employments,' thus conforming with the language of the constitutional provision.
The workmen's compensation law was amended in several respects in 1919 (108 Ohio Laws, pt. 1, 314), and it was then that the words 'or industries' were inserted in ...
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