State ex rel. Michaels v. Morse

• Decision Date: 05 December 1956
• Docket Number: No. 34765,34765
• Citation: 60 O.O. 531,138 N.E.2d 660,165 Ohio St. 599
• Parties: , 60 O.O. 531 The STATE ex rel. MICHAELS, Appellant, v. MORSE et al., Industrial Commission of Ohio, Appellees.
• Court: Ohio Supreme Court

Page 599

165 Ohio St. 599

138 N.E.2d 660, 60 O.O. 531

The STATE ex rel. MICHAELS, Appellant, v. MORSE et al., Industrial Commission of Ohio, Appellees.

No. 34765.

Supreme Court of Ohio.

Dec. 5, 1956.

Schwenker, Teaford, Brothers & Solsberry, Columbus, for appellant.

C. William O'Neill, Atty. Gen., and James L. Young, Columbus, for appellees.

PER CURIAM.

This court is of the opinion that the judgment of the Court of Appeals should be affirmed for the reasons stated in the following opinion by Judge Fess of that court, which fully sets forth the facts of the case.

'This is an original action in mandamus for an order to compel the respondent to proceed to hear and determine relator's claim for compensation pursuant to the statutory provisions relating thereto in effect prior to October 5, 1955. The operative facts alleged in the petition are admitted in the answer. The issues of law raised are, therefore, to be determined upon the pleadings.

'Relator's claim was filed on August 10, 1954, and disallowed on January 4, 1955, rehearing was granted, and testimony was taken thereon May 26, 1955, and continued. On September 7, 1955, relator filed a motion with respondent for assignment of his claim for further hearings on rehearing pursuant to the law then in force. On September 8, 1955, the respondent found that it had authority under existing law to grant such hearings as requested, but that there was insufficient time to permit the claimant to complete his case, and for the commission to hear and determine it, prior to October 5, 1955, the date upon which Sections 4123.512 to 4123.519, inclusive, Revised Code, were to become effective, and wherein no provision is made to retain facilities required to complete the rehearing proceedings. In denying claimant's motion, the commission ordered that his claim shall, on and after October 5, 1955, be deemed to be pending before the commission on appeal as provided for by the new sections. ¹

'Relator's claim was a pending proceeding within the purview of Section 1.20, Revised Code. This section merely prescribes a rule of construction. The eleventh paragraph of Section 4123.519, Revised Code, provides that all claims pending determination by the commission on the effective date of the new act and all claims filed thereafter shall be governed by the provisions of the new act. ²

'There is, therefore, no conflict between Section 1.20, Revised Code, and the provisions of the new act. In specific terms, the Legislature has said that the new act shall apply to certain pending proceedings before the commission, which would include relator's claim.

'I.

'In support of his position, relator first contends that the powers of the Administrator of the Bureau of Workmen's Compensation, created by the new act, are violative of Section 35, Article II of the Constitution of Ohio (hereinafter referred to as 'II-35').

'The new act is entitled, 'To create the bureau of workmen's compensation, to define the powers of the administrator thereof, to increase compensation to injured workmen * * *.' Since the relator's claim is deemed to be a pending claim before the commission, the administrator will have no judicial, quasi-judicial or administrative function to perform incident to the determination of relator's pending claim before the commission. Therefore, the constitutionality of the act, with respect to the powers of the administrator and with respect to the instant claim, is not presented. However, the relator asserts that, as an unconstitutional officer, the administrator has no right to be a party to claimant's appeal. ³ 'The new act establishes a Bureau of Workmen's Compensation, to be administered by an administrator appointed by the Governor for a term of six years. Section 4121.12, Revised Code. ⁴

'A review of Section 4121.121, Revised Code, discloses that, in the main, administrative functions are granted the administrator. As disclosed in paragraph (A) of Section 4121.121, Revised Code, some duplication of the authority and power of the commission is granted to the administrator, which may provoke conflict between him and the commission (as illustrated, occasionally, between the administrator of the Bureau of Unemployment Compensation and the Board of Review), but with the wisdom of the legislation we are not concerned. 10 Ohio Jurisprudence (2d), 205, 326, Section 126 and 249; State ex rel. Bishop v. Board of Edn. of Mt. Orab Village School Dist., 139 Ohio St. 427, 428, 40 N.E.2d 913.

'Is the establishment of the office of administrator in violation of 'II-35'? The first sentence of that section provides:

"For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen's employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom.'

'This is a broad grant of power to establish and to administer the fund without limitation, and laws could be passed providing for the administration of the fund by a board, commission, state official, commissioner or administrator. The third sentence of 'II-35' provides:

"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, and to collect, administer and distribute such fund, and to determine all rights of claimants thereto.'

'Although certain provisions of 'II-35' are to be regarded as self-executing, such as the provision with respect to violation of a specific requirement, it is apparent that the powers granted in the first and third sentences are to be implemented by act of the General Assembly. Such powers are permissive (State ex rel. Lourin v. Industrial Commission, 138 Ohio St. 618, 622, 37 N.E.2d 595), not mandatory, and, on their face, are not self-executing. True, the people in adopting the amendment, contemplated that the powers thus granted would be exercised by a board or commission, but they did not so provide in mandatory terms. Furthermore, the amendment did not exhaust the police power of the state so as to prevent the Legislature from creating regional boards of claims. State ex rel. DeTorio v. Industrial Commission, 135 Ohio St. 214, 216, 20 N.E.2d 248.

'It should be borne in mind that, in contrast to the federal Constitution, which is a delegation of powers, the Ohio Constitution is a limitation of powers. An act of Congress is invalid unless the Constitution authorizes it, but the General Assembly may enact any law which is not prohibited by the Constitution. Angell v. City of Toledo, 153 Ohio St. 179, 181, 91 N.E.2d 250. A legislative act is presumed in law to be within the constitutional power of the body making it, whether that body be a municipal or a state legislative body. City of Xenia v. Schmidt, 101 Ohio St. 437, 130 N.E. 24. It has been repeatedly held in Ohio that a clear incompatibility between a law and the Constitution must exist before the judiciary is justified in holding the law unconstitutional. The repugnancy between the statute and the Constitution must be incapable of a fair reconciliation. 10 Ohio Jurisprudence (2d), 248, 253, Sections 168 and 172.

'In our opinion, the relator has failed to overcome the presumption of constitutionality, and we conclude that the establishment of the bureau and the authorities and powers conferred upon the administrator, by the new law, are not in contravention of Section 35 of Article II of the Ohio Constitution.

'It is also to be observed that the relator (excpet with respect to the intervention of the administrator as a party, hereinafter discussed) is in no way affected by the exercise of power and authority conferred by the act upon the administrator, and, therefore, no clear right to relief on that ground is disclosed.

'II.

'Relator's second contention is that Section 4123.519, Revised Code, violates the provisions of Section 28, Article II of the Constitution (hereinafter referred to as 'II-28'), Section 1.20, Revised Code, and the Constitution of the United States. For the reasons stated under I, relator's contention with respect to Section 1.20, Revised Code, is not well taken.

"II-28' provides a limitation that the General Assembly shall have no power to pass retroactive laws. Relator concedes that the limitation applies only to substantive rights and does not apply if remedial matters are involved. Numerous cases hold that retroactive laws refer to those which create and define substantial rights, and which either give rise to or take away the right to sue or to defend actions at law. Smith v. New York Central R. Co., 122 Ohio St. 45, 48, 170 N.E. 637. Upon principle, every statute which takes away or impairs vested rights, acquired under existing laws, or which creates a new obligation, imposes a new duty, or attaches a new disability in respect to past transactions or considerations must be deemed retrospective. Story, J., in Society [for the Propagation of Gospel] v. Wheeler, [Fed.Cas.No. 13,156] 2 Gal[l]. 139; Rairden v. Holden, 15 Ohio St. 207, 210; Bartol v. Eckert, 50 Ohio St. 31, 33 N.E. 294; Safford v. Metropolitan Life Ins. Co., 119 Ohio St. 332, 164 N.E. 351; Smith v. New Your Central R. Co., supra; Beckman v. State, 122 Ohio St 443, 450, 172 N.E. 145, 5 N.E.2d 482; Slocum v. Mutual Building & Investment Co., 130 Ohio St. 312, 317, 199 N.E. 175; State ex rel. Crotty v. Zangerle, 133 Ohio St. 532, 535, 14 N.E.2d 932; Weil v. Taxicabs of Cincinnati, Inc., 139 Ohio St. 198, 39 N.E.2d 148. Although 'II-28' has application to laws disturbing accrued substantive rights, it has no application to laws of a remedial nature providing rules of practice, courses of procedure, or methods of review. State ex rel. Slaughter v....