Butterfield v. State Industrial Accident Commission

223 P. 941, 111 Or. 149, 1924 Ore. LEXIS 121

Opinions

COSHOW, J.

It is the contention of the Attorney General that the State Industrial Accident Commission is an arm of the state, administering the act commonly known as the Workmen’s Compensation Act, and that the state is, therefore, the real party in interest. From these premises he argues, because the state cannot be sued, the Industrial Accident Commission cannot be. The legislature has provided that the Industrial Accident Commission “in its name may sue and be sued, and shall have a seal which shall bear the name of the commission.” Section 6611, Or. L. The commission is given other powers exercised by a corporation: Section 6629, Or. L.; Laws 1921, c. 311. It is a creature of the legislature and is a body corporate.

This court has held the act creating the commission to be constitutional: Evanhoff v. Industrial Acc. Com., 78 Or. 503 (154 Pac. 106). The primary duty of the commission is to administer the act: Section 6611, Or. L. The exercise of judicial functions is incidental to its primary duty, and the act is not unconstitutional on that account: In re Willow Creek, 74 Or. 592 (144 Pac. 505, 146 Pac. 475). Nor does the fact that payments from the fund created by the act are to be made by the State. Treasurer on warrants drawn by the Secretary of State render it unconstitutional. Both the Secretary of State and the State Treasurer are without discretion in regard to that fund. Payments from the fund can be made only upon vouchers transmitted by the commission: Section 6638, Or. L.; Laws 1921, c. 311. The state is a contributor to the fund, and is, therefore, interested in the fund in the same manner as it is in the fund of the state board of agriculture: Tongue v. State Board of Agriculture, 55 Or. 61 (105 Pac. 250).

The state is not a party to cases initiated before the Industrial Accident Commission and, therefore, cannot appeal from the final action of the commission, or a judgment of the Circuit Court based upon such final action: Sections 549 and 6637, Or. L.; Laws 1921, c. 311. The act provides that notice of appeal from the final action of the commission shall be served upon the commission: Section 6637, Or. L.; Laws 1921, c. 311. This provision indicates the intention of the legislature to make the commission a party to the appeal. That has been the uniform practice during the many years the act has been in force.

This court in Lough v. Industrial Acc. Com., 104 Or. 313 (207 Pac. 354), was not considering the matter of appeals, but the procedure for presenting a claim by an injured workman. The procedure provided by the act for presenting claims must be followed, and the procedure on appeals must likewise be followed. Both are statutory: Chebot v. Industrial Acc. Com., 106 Or. 660, 669, 670 (212 Pac. 792); Smith v. Industrial Acc. Com., 104 Or. 640 (208 Pac. 746, 748). The procedure is peculiar to the Workmen’s Compensation Act, but is not, on that account, invalid: Evanhoff v. Industrial Acc. Com., above.

“Appeals shall lie on the judgment of the Circuit Court, as in other civil cases.” Section 6637, Or. L.; Laws 1921, c. 311.

The motion to dismiss the appeal to this court is allowed and the appeal is dismissed.

Motion to Dismiss Appeal Allowed.

Mr. I. H. Van Winkle, Attorney General, and Mr. James West, Assistant Attorney General, for the motion. Mr. J. W. McInturff, contra.