State v. Indus. Comm'n
| Decision Date | 16 January 1940 |
| Citation | 233 Wis. 461,289 N.W. 769 |
| Parties | STATE v. INDUSTRIAL COMMISSION et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Dane County; Alvin C. Reis, Judge.
Reversed.
Action begun April 20, 1938, by the state against Rollin B. Bernau and the Industrial Commission asking that the pretended findings and order under the Workmen's Compensation Act in favor of Rollin B. Bernau be set aside and for such other relief as may be just and equitable. From a judgment in favor of the defendants, plaintiff appeals.
Rollin B. Bernau who had been employed as a janitor at the state sanitarium became disabled from tuberculosis on November 6, 1936. On February 23, 1938, the chief examiner of the Industrial Commission found that Bernau suffered tuberculosis as a result of his employment by the state and issued an interlucotory order for the payment of compensation. On March 11, 1938, the attorney general on behalf of the state applied to the Industrial Commission for review of the examiner's findings and the order made thereon. On March 23, 1938, the attorney general and Bernau were notified that the commission was unable to agree as to action upon the examiner's findings, there being a vacancy in the membership of the commission and, but two commissioners in office at the time. One of the commissioners was of the opinion that the finding should be reversed and the other that it should be affirmed. In a letter of the commission showing a lack of agreement it was stated:
“Under the provisions of Sec. 102.18 and Rule 19-2-a, the examiner's order is, therefore, deemed to be that of the entire commission as a body.” On April 2, 1938 the commission addressed another letter to the same parties in which that quoted portion was withdrawn. Action was commenced by the state in the circuit court for Dane county to review such findings and award. The circuit court made its findings and entered judgment that the findings of fact and the order of the examiner dated February 23, 1938, became those of the Industrial Commission as a body and confirmed the findings and order. From this judgment the state appeals.
John E. Martin, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for appellant.
Harvey C. Hartwig and Bloodgood, Kemper & Passmore, all of Milwaukee (Charles H. Galin, of Milwaukee, of counsel), for respondents.
This action is brought to set aside what is claimed to be an award of the Industrial Commission and the appeal is from a judgment of the circuit court so declaring and confirming it. The fault pointed out is that the findings and order are those of an examiner which have not become the findings and order of the commission as a body, and that there has been no determination of the rights of the parties as is provided by sec. 102.18, Stats. That statute provides that the findings or order of an examiner, if no petition for review is filed within twenty days, “shall be considered the findings or order of the industrial commission as a body, unless set aside, reversed or modified by such *** examiner within such time.” But if a petition for review is filed, as was done in this case, then there comes into play the provision that “Within ten days after the filing of such petition with the commission the commission shall either affirm, reverse, set aside or modify such findings or order in whole or in part, or direct the taking of additional testimony.”
When the state's petition for review came to the commission there were but two members in office. They divided so as to effectively offset each other and no action to affirm, reverse, or direct the taking of additional testimony could result. We have a situation where there has been an application to review the findings and award of the examiner and no legal action taken thereon.
[1][2][3][4][5][6] The underlying question to be decided is whether the statute allows the Industrial Commission to act except by the accord of at least two of its members. If the alleged findings and order have no force or effect, it is because the order of the examiner never became final by reason of the petition to review. The argument in the court below, based on an analogy of the practice of allowing a lower court's decision to stand on appeal when an appellate court is equally divided, was accepted as showing a course to be followed. But as pointed out in the brief of the attorney general, that rule must presuppose an authoritative determination by a tribunal, whose decision is appealed from, which has inherent power to decide. Under the statutes authorizing the examiner to act to the extent provided, there is no provision that the findings and order of the examiner...
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Dolan v. United States, No. 09–367.
...260 N.W.2d 521, 522–523 (Iowa 1977); Hutchinson v. Ryan, 154 Kan. 751, 756–757, 121 P.2d 179, 182 (1942); State v. Industrial Comm'n, 233 Wis. 461, 466, 289 N.W. 769, 771 (1940); see also 3 Singer, Statutory Construction § 57:19, at 74 (citing cases).Sixth, the defendant normally can mitiga......
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Dolan v. US
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