Opinion
No. 31433
Decided June 16, 1948.
Prohibition — Writ lies to prevent assuming or exceeding jurisdiction, when — Writ not available to retry issue already determined, when — Workmen's compensation award for silicosis.
1. The function of the extraordinary remedy of prohibition is to prevent a judicial or quasi-judicial tribunal from assuming jurisdiction where it has none or from exceeding its jurisdiction where it possesses limited jurisdiction.
2. A writ of prohibition will not issue where it would result in a retrial of an issue already determined by a judicial or quasi-judicial tribunal having jurisdiction of the subject matter, thereby in effect, affording the relator an appeal from such determination, and where the relator is not otherwise entitled to such writ.
IN PROHIBITION.
This is an action in prohibition originating in this court. The relator alleges in its petition that it is an employer of more than five employees and pays premiums into the state insurance fund, the amount of which premiums is dependent upon the number of awards made to its employees; that one of its employees, John H. Fischer, on October 7, 1947, filed with the Industrial Commission an application for compensation for an occupational disease known as silicosis, setting out in his application that he was and had been suffering from such disease and had received certain treatment therefor; and that he had submitted to the Industrial Commission certain affidavits and evidence in support of his claim.
Relator further alleges that the respondents had heard and allowed Fischer's claim on February 10, 1948, finding, under the evidence, that the claimant was "permanently and totally disabled due to a well developed simple silicosis, hypertensive heart disease, and age," and ordering that an award for permanent and total disability be granted and continued without suspension unless future facts or circumstances warrant the stopping of payment; that on February 13, 1948, the relator filed an application for a reconsideration and disallowance of such award on the ground that subsection 22 of Section 1465-68 a, General Code, provides for the payment of compensation for temporary total disability, permanent total disability, or death, on account of silicosis only; and that there is no provision in the law for payment of compensation for partial disability on account of silicosis except such as is provided for in Section 1465-80, General Code, which has no application to the facts supporting Fischer's claim.
Relator further alleges that its application for reconsideration was heard on March 23, 1948, at which time the respondents found that the disease of silicosis in the claimant was demonstrated by X-ray and the medical evidence showed total disability was caused by silicosis, independent of the other factors of heart disease and age upon which the silicosis was superimposed; that the motion of the relator was denied; and that any parts of the previous order of the respondents in conflict with the last order were vacated.
Relator further alleges that the true facts are as found by the respondents in their first finding and order; that the respondents had no jurisdiction or authority to make their second order awarding compensation for the silicosis alone; and that the respondents had not yet paid such award but were about to do so.
The prayer of the petition is that a writ of prohibition be allowed restraining the respondents from further proceeding in connection with the claim of Fischer and from paying any award thereunder, on the ground that respondents were without jurisdiction to make such order.
The cause was submitted on demurrer to the petition.
Messrs. Adams, Rapp McCann, for relator.
Mr. Hugh S. Jenkins, attorney general, and Mr. R. Brooke Alloway, for respondents.
The relator claims that the respondents, under the facts, were without jurisdiction to make an order awarding compensation to Fischer for total disability based upon the occupational disease of silicosis when, as it claims, the undisputed facts show that silicosis was only one of several causes of total disability, and that for that reason its award was illegal and void. See State, ex rel. Yuska, v. Industrial Commission, 144 Ohio St. 187, 58 N.E.2d 214.
The function of the extraordinary remedy of prohibition is to prevent a judicial or quasi-judicial tribunal from assuming jurisdiction where it has none or from exceeding its jurisdiction where it possesses limited jurisdiction. Jurisdiction only is involved and the writ cannot be invoked to test mere errors of judgment. State, ex rel. Burtzlaff, v. Vickery et al., Judges, 121 Ohio St. 49, 166 N.E. 894; State, ex rel. Maysville Bridge Co., v. Quinlan, Probate Judge, 124 Ohio St. 658, 181 N.E. 880; 32 Ohio Jurisprudence, 577. See annotation 115 A. L. R., 3 to 35. The function of the writ is to prevent unauthorized action on the part of a judicial or quasi-judicial tribunal, and not to prevent the carrying into execution of orders once made. State, ex rel. Moss, v. Clair, 148 Ohio St. 642, 76 N.E.2d 883; State, ex rel. Ohio Stove Co., v. Coffinberry, 149 Ohio St. 400.
The relator challenges the respondents' finding that Fischer had total disability caused by silicosis independent of other factors, and alleges that the proven facts do not sustain it. The issue thus developed, if respondents' demurrer be overruled, would require this court to retry this vital issue of fact and substitute its judgment for that of the commission and thus, in effect, give the relator an appeal from the finding of the commission to which remedy, under the Workmen's Compensation Act, it is not entitled. Clearly, the remedy of prohibition cannot serve any such purpose.
It is suggested by the relator that the writ of prohibition should issue here to restrain the respondents from carrying out an alleged illegal order. However, as was said in the case of State, ex rel. Ohio Stove Co., v. Coffinberry, supra, the relief here sought "is injunctive to restrain the commission from performing ministerial acts, and, under the Constitution, this court has no original jurisdiction to afford such relief."
If the relator is entitled to injunctive relief, it must be sought in an appropriate tribunal having jurisdiction to enjoin the collection of an illegal or void order or judgment. State, ex rel. Voight, Jr., v. Lueders, Probate Judge, 101 Ohio St. 211, 128 N.E. 70.
In the case of Copperweld Steel Co. v. Industrial Commission, 142 Ohio St. 439, 52 N.E.2d 735, this court suggested that an employer has no interest in the distribution of the state insurance fund and is not aggrieved until a merit-rating system is applied to him, which takes into account the distribution of awards to claimants employed by such employer. When that situation arises the employer, such as the relator in this case, could refuse to pay a premium assessed against it and upon suit to recover the same make its defense, if it has any. Copperweld Steel Co. v. Industrial Commission, 143 Ohio St. 591, 56 N.E.2d 154. That being true, the relator may not maintain this action in prohibition.
The demurrer to the relator's petition, admitting only well pleaded facts but excluding conclusions of law, is sustained on the ground that such petition does not state a cause of action, and the writ of prohibition is denied.
Writ denied.
WEYGANDT, C.J., TURNER, MATTHIAS, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.