Bushnell, J.
(dissenting). Henry E. Maillat, a 75-year-old widower, worked as a night watchman for defendant village of Marcellus. About 10 p. m. on December 13, 1947, he was found unconscious in front of the Marcellus Lumber Company. There was ice on the cement walk where he was lying. He was taken to the hospital and died. within a few hours. An autopsy disclosed a fracture at the base of the skull and a massive cerebral hemorrhage.
[372]*372Defendant village filed a report with the compensation commission on December 17, 1947, stating:
“How did it occur? No witnesses, it is presumed he fell backwards off the steps of the office entrance of the Marcellus Lumber Co., striking his head on cement walk.”
A supplemental report, dated February 11, 1948, stated there were no dependents.
An order to show cause why defendants should not pay $1,000 into the second-injury fund (CL 1948, § 412.8a [Stat Ann 1949 Cum Supp § 17.158 (1)]) was issued by the commission on September 8, 1948. The hearing occurred before a deputy commissioner on November 17, 1948. Only the defendants appeared. They claimed that the 6-months requirement in filing the claim had not been observed and that the burden was on the State to prove there were no dependents, and the occurrence of a compensable accident. The deputy commissioner put the 2 reports in evidence and, relying on these as making a prima facie case, ordered defendants to pay. Defendants appealed to the full commission from this award.
While the appeal was pending, a second order to show cause was issued by the commission on March 30, 1949. Defendants claimed the matter was res judicata, but the deputy commissioner treated it as directing additional testimony, rather than a rehearing. He then took the testimony of Dr. H. M. Adams, the family physician of deceased who attended him the night of his death. Dr. Adams testified that he had found Mail!at unconscious with a fractured skull and cerebral hemorrhage, and that he had no medical history to indicate a heart attack or fainting spell. After this hearing the deputy commissioner did not enter an additional award.
[373]*373On September 9, 1949, on the basis of the original hearing and the additional testimony, the commission affirmed the award of the deputy.
Defendants obtained leave to appeal claiming that the first order to show cause was issued too late and that plaintiff had not sustained the burden of proof.
A claim*for compensation against an employer must he filed within 6 months after the employee’s death. CL 1948, § 412.15 (Stat Ann 1949 Cum Supp § 17.165). The requirement of a timely claim is jurisdictional and a condition precedent to the maintenance of an action. LaRosa v. Ford Motor Co., 270 Mich 365, and La Duke v. Consumers Power Co., 299 Mich 625.
It is argued, however, that the limitation does not operate against the State.
The general statutes of limitation recognize the propriety of placing time limitations on the State both as to real and personal actions. CL 1948, § 609.11 (Stat Ann § 27.603) and CL 1948, § 609.28 (Stat Ann § 27.620). See Unemployment Compensation Commission v. Vivian, 318 Mich 598.
The State is not the beneficiary hut only the custodian of the second-injury- fund. It acts in a collection capacity for those entitled under the statute to payments from this fund. The initial action against an employer originates with an order to show cause by the workmen’s compensation commission (Criss v. Taylor Produce Co., 313 Mich 457) and the payments from the fund are also by its order. The protection given an employer under time limitations is equally applicable where the money paid will go to the fund first and then to the individual, as to the individual directly. Here, no claim was instituted within the 6-month period and recovery cannot be sustained. In view of the fore[374]*374going it is unnecessary to discuss other questions raised.
The award should be vacated, hut without costs.
Reid, C. J., and Sharpe, J., concurred with BTJSH-NELL, J.
Dethmers, J. (for affirmance). I do not concur with Mr. Justice Btjshnell in reversal. Statutes of limitations are applicable to actions by the State when those statutes expressly so provide, as in CL 1948, § 609.11 (Stat Ann § 27.603) and CL 1948, § 609.28 (Stat Ann § 27.620); hut the express provision therefor in those 2 sections evidences a legislative recognition of the rule that statutes of limitations do not apply to the State in the absence of an express provision therein to that effect. That this is the rule was held in Crane v. Reeder, 21 Mich 24 (4 Am Rep 430); and it was so held, even though the action was brought by the State as the trustee of an express trust, in State v. Venice of America Land Co., 160 Mich 680. See, also, 53 CJS, Limitation of Actions, § 15, and 1 Wood on Limitations (4th ed) 157, § 52. The limitation on making claims to the period within 6 months after the employee’s death (CL 1948, § 412.15 [Stat Ann 1949 Cum Supp § 17.165]) is not by express language of the statute-made applicable to the State either in proceedings to enforce payment to the second-injury fund or otherwise.
Defendants treat the second order to show cause, mentioned in Justice Btjshnell’s opinion, as an order for rehearing and cite such cases as Fitzpatrick v. Olds Division of General Motors Corp., 282 Mich 646, as authority for the proposition that the commission may not order rehearings. It seems to me that under the circumstances the deputy commissioner properly treated the order as one for taking [375]*375additional testimony,- permissible under Rule No 9 of the rules of practice of the workmen’s compensation commission.
Defendants say that plaintiff failed to sustain the burden of showing the nonexistence of dependents of deceased, a prerequisite to the obligation to make payment to the second-injury fund. The defendant village filed with the commission a “Supplemental Report of Fatal Injury,” which contained the following: “Names, ages, relationship to deceased, extent of dependency, and address of all dependents of deceased employee: None.” On numerous occasions we have held that the employer’s report to the department establishes “a prima facie case” as to the material facts stated therein. Reck v. Whittlesberger, 181 Mich 463 (Ann Cas 1916C 771, 5 NCCA 917); Fitzgerald v. Lozier Motor Co., 187 Mich 660; McCartney v. Wood-Temple Co., 217 Mich 505; Hector v. Cadillac Plumbing & Heating Co., 226 Mich 496; Derleth v. Roach & Seeber Co., 227 Mich 258 (36 ALR 472); Kelly v. Ford Motor Co., 280 Mich 378. Since the prima facie case thus made in support of the award was not met by any evidence to the contrary, it follows that the commission’s finding of fact that deceased left no dependents is sustained by the record. The seemingly contrary holding of a majority of this Court in Killion v. E & L Transport Co., 321 Mich 80, was predicated upon the fact that the statement of no dependents in the employer’s report in that case had, in effect, been withdrawn, prior to the hearing before the deputy commissioner, by the employer’s answer alleging that the deceased did leave dependents. The Killion Case
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Bushnell, J.
(dissenting). Henry E. Maillat, a 75-year-old widower, worked as a night watchman for defendant village of Marcellus. About 10 p. m. on December 13, 1947, he was found unconscious in front of the Marcellus Lumber Company. There was ice on the cement walk where he was lying. He was taken to the hospital and died. within a few hours. An autopsy disclosed a fracture at the base of the skull and a massive cerebral hemorrhage.
[372]*372Defendant village filed a report with the compensation commission on December 17, 1947, stating:
“How did it occur? No witnesses, it is presumed he fell backwards off the steps of the office entrance of the Marcellus Lumber Co., striking his head on cement walk.”
A supplemental report, dated February 11, 1948, stated there were no dependents.
An order to show cause why defendants should not pay $1,000 into the second-injury fund (CL 1948, § 412.8a [Stat Ann 1949 Cum Supp § 17.158 (1)]) was issued by the commission on September 8, 1948. The hearing occurred before a deputy commissioner on November 17, 1948. Only the defendants appeared. They claimed that the 6-months requirement in filing the claim had not been observed and that the burden was on the State to prove there were no dependents, and the occurrence of a compensable accident. The deputy commissioner put the 2 reports in evidence and, relying on these as making a prima facie case, ordered defendants to pay. Defendants appealed to the full commission from this award.
While the appeal was pending, a second order to show cause was issued by the commission on March 30, 1949. Defendants claimed the matter was res judicata, but the deputy commissioner treated it as directing additional testimony, rather than a rehearing. He then took the testimony of Dr. H. M. Adams, the family physician of deceased who attended him the night of his death. Dr. Adams testified that he had found Mail!at unconscious with a fractured skull and cerebral hemorrhage, and that he had no medical history to indicate a heart attack or fainting spell. After this hearing the deputy commissioner did not enter an additional award.
[373]*373On September 9, 1949, on the basis of the original hearing and the additional testimony, the commission affirmed the award of the deputy.
Defendants obtained leave to appeal claiming that the first order to show cause was issued too late and that plaintiff had not sustained the burden of proof.
A claim*for compensation against an employer must he filed within 6 months after the employee’s death. CL 1948, § 412.15 (Stat Ann 1949 Cum Supp § 17.165). The requirement of a timely claim is jurisdictional and a condition precedent to the maintenance of an action. LaRosa v. Ford Motor Co., 270 Mich 365, and La Duke v. Consumers Power Co., 299 Mich 625.
It is argued, however, that the limitation does not operate against the State.
The general statutes of limitation recognize the propriety of placing time limitations on the State both as to real and personal actions. CL 1948, § 609.11 (Stat Ann § 27.603) and CL 1948, § 609.28 (Stat Ann § 27.620). See Unemployment Compensation Commission v. Vivian, 318 Mich 598.
The State is not the beneficiary hut only the custodian of the second-injury- fund. It acts in a collection capacity for those entitled under the statute to payments from this fund. The initial action against an employer originates with an order to show cause by the workmen’s compensation commission (Criss v. Taylor Produce Co., 313 Mich 457) and the payments from the fund are also by its order. The protection given an employer under time limitations is equally applicable where the money paid will go to the fund first and then to the individual, as to the individual directly. Here, no claim was instituted within the 6-month period and recovery cannot be sustained. In view of the fore[374]*374going it is unnecessary to discuss other questions raised.
The award should be vacated, hut without costs.
Reid, C. J., and Sharpe, J., concurred with BTJSH-NELL, J.
Dethmers, J. (for affirmance). I do not concur with Mr. Justice Btjshnell in reversal. Statutes of limitations are applicable to actions by the State when those statutes expressly so provide, as in CL 1948, § 609.11 (Stat Ann § 27.603) and CL 1948, § 609.28 (Stat Ann § 27.620); hut the express provision therefor in those 2 sections evidences a legislative recognition of the rule that statutes of limitations do not apply to the State in the absence of an express provision therein to that effect. That this is the rule was held in Crane v. Reeder, 21 Mich 24 (4 Am Rep 430); and it was so held, even though the action was brought by the State as the trustee of an express trust, in State v. Venice of America Land Co., 160 Mich 680. See, also, 53 CJS, Limitation of Actions, § 15, and 1 Wood on Limitations (4th ed) 157, § 52. The limitation on making claims to the period within 6 months after the employee’s death (CL 1948, § 412.15 [Stat Ann 1949 Cum Supp § 17.165]) is not by express language of the statute-made applicable to the State either in proceedings to enforce payment to the second-injury fund or otherwise.
Defendants treat the second order to show cause, mentioned in Justice Btjshnell’s opinion, as an order for rehearing and cite such cases as Fitzpatrick v. Olds Division of General Motors Corp., 282 Mich 646, as authority for the proposition that the commission may not order rehearings. It seems to me that under the circumstances the deputy commissioner properly treated the order as one for taking [375]*375additional testimony,- permissible under Rule No 9 of the rules of practice of the workmen’s compensation commission.
Defendants say that plaintiff failed to sustain the burden of showing the nonexistence of dependents of deceased, a prerequisite to the obligation to make payment to the second-injury fund. The defendant village filed with the commission a “Supplemental Report of Fatal Injury,” which contained the following: “Names, ages, relationship to deceased, extent of dependency, and address of all dependents of deceased employee: None.” On numerous occasions we have held that the employer’s report to the department establishes “a prima facie case” as to the material facts stated therein. Reck v. Whittlesberger, 181 Mich 463 (Ann Cas 1916C 771, 5 NCCA 917); Fitzgerald v. Lozier Motor Co., 187 Mich 660; McCartney v. Wood-Temple Co., 217 Mich 505; Hector v. Cadillac Plumbing & Heating Co., 226 Mich 496; Derleth v. Roach & Seeber Co., 227 Mich 258 (36 ALR 472); Kelly v. Ford Motor Co., 280 Mich 378. Since the prima facie case thus made in support of the award was not met by any evidence to the contrary, it follows that the commission’s finding of fact that deceased left no dependents is sustained by the record. The seemingly contrary holding of a majority of this Court in Killion v. E & L Transport Co., 321 Mich 80, was predicated upon the fact that the statement of no dependents in the employer’s report in that case had, in effect, been withdrawn, prior to the hearing before the deputy commissioner, by the employer’s answer alleging that the deceased did leave dependents. The Killion Case is in that respect distinguishable from the instant case and is for that reason not in point here.
Finally, defendants urge that plaintiff did not sustain the burden of showing that the deceased suffered a personal injury resulting in death which [376]*376arose ont of and in the course of his employment. This contention is based on defendants’ assumption that the testimony taken before the deputy commissioner after the second show cause order may not be considered, thus leaving nothing to support the commission’s finding in this respect other than the statement in the employer’s report to the commission that “It is presumed he fell backwards,” et cetera,, all as set forth in Justice Bushnell’s opinion. In view of the fact that it was proper for the commission to remand the matter to the deputy commissioner for taking of further testimony in accord with said Rule No 9, the testimony taken on that occasion is-properly a part of the record. Competent evidence adduced at that time supports the commission’s finding of fact that deceased sustained a personal injury resulting in death and arising out of and in the course of his employment.
The award is affirmed, with costs to plaintiff.
Butzel, and Carr, JJ., concurred with Dethmers,, J.