Opinion
Nos. 21253 and 21254
Decided December 12, 1928.
Workmen's compensation — County exempt from contributing to fund, when — Section 1465-65, General Code — Fund sufficient to pay county's probable disbursements for ensuing year — Although fund insufficient for all counties in state as a whole — "Payment of compensation" and "probable disbursements" synonymous.
IN MANDAMUS.
These are original actions in mandamus filed in this court. The parties to the two actions are different, case No. 21253 being brought by the state of Ohio, on the relation of the board of commissioners of Cuyahoga county, against the defendants, as members of the Industrial Commission of Ohio, and case No. 21254 being brought by the state of Ohio on the relation of the city of Cleveland, a municipal corporation, against the same defendants. The allegations of the amended petition in each case, however, are substantially identical, with the exception of the formal statements necessary to set forth the facts with due regard to the difference in the parties. The material allegations and the prayer of each amended petition present exactly the same legal proposition, and for that reason the two amended petitions will not be given in full.
The cases arise under Sections 1465-63, 1465-65, 1465-66, and 1465-67, General Code, which deal with the method, rate, and manner of assessing and collecting contributions from employers to the state insurance fund.
The amended petition in case No. 21254 alleges that the relator is a municipal corporation, which is an employer under Section 1465-60, General Code, that it is a contributor to the state insurance fund, under Section 1465-62, General Code, and that the defendants are the duly appointed, qualified, and acting members of the Industrial Commission of Ohio. The amended petition further alleges that on December 1, 1927, there were sufficient funds in the state insurance fund to the credit of Cuyahoga county and the several taxing districts therein to provide for the probable disbursements required to be made to the injured and to the dependents of killed employees of Cuyahoga county and the several taxing districts therein for the ensuing year (1928). The amended petition alleges that the relator requested the respondents to certify that fact to the auditor of state, and the respondents failed and refused to so do, but, on the contrary, made an order levying on the county and the several taxing districts therein a premium assessment of $264,455.33 for the fiscal year of 1928, of which amount $180,000 was levied against the city of Cleveland. The amended petition further avers that unless the respondents are compelled to do their duty and make a proper certificate therefor, the county of Cuyahoga and the several taxing districts therein will be compelled to pay into the state insurance fund for the year 1928 the sum of $264,455.33, although on December 1, 1927, there was sufficient money to the credit of the county and the several taxing districts therein for the payment of all the probable disbursements required to be made for Cuyahoga county and the several taxing districts therein for the year 1928. The amended petition avers that the only reasons given by the respondents for refusing to make the certificate demanded were the following:
1. That there is not sufficient money in the state insurance fund to the credit of Cuyahoga county and the several taxing districts therein to pay in full the deferred payments, which will be due after 1928, on all of the awards which have been made in past years, or to pay in full the deferred payments which will be due after 1928 on claims which will probably accrue during the year 1928 on account of injuries to the employees of that county and the several taxing districts therein.
2. That, while there is sufficient money in the state insurance fund to the credit of Cuyahoga county and the several taxing districts therein to provide for all of the probable disbursements required to be made to the injured and to the dependents of killed employees of that county and the several taxing districts therein during the year 1928, there is not sufficient money in the state insurance fund to the credit of the public employee fund to pay in full all of the probable disbursements required to be made in the year 1928 on account of injuries to the public employees of the several counties and their several taxing districts in the state as a whole.
The amended petition prays that a peremptory writ of mandamus issue immediately, compelling the respondents and each of them to comply with the requirements of the law, and to issue, or cause to be issued, a certificate to the auditor of state that there is sufficient money in the state insurance fund to the credit of Cuyahoga county to provide for the payment of compensation to the injured and to the dependents of killed employees of the county and the several taxing districts therein for the fiscal year 1928, and for such further relief as may seem just and equitable.
The amended petition in case No. 21253 makes similar allegations on behalf of the county of Cuyahoga and the several taxing districts therein, and contains a similar prayer.
A demurrer was filed to each amended petition, upon the ground that it does not contain allegations sufficient to show that the relator is entitled to the relief prayed for.
Mr. Carl F. Shuler, director of law, Mr. E.C. Stanton, prosecuting attorney, Mr. H.E. Parsons, and Mr. Henry S. Brainard, for relators.
Mr. Edward C. Turner, attorney general, and Mr. R.R. Zurmehly, for respondents.
The contentions of the relators and the respondents are in substance as follows:
1. Relators contend that, inasmuch as on December 1, 1927, there was to the credit of Cuyahoga county and its several taxing districts a sufficient sum of money to provide for the probable disbursements for the year 1928, the Industrial Commission was duty bound to so certify that fact and therefore make no assessment against Cuyahoga county and its several taxing districts for the year 1928.
2. Respondents contend that, inasmuch as there was not in the state insurance fund sufficient money to the credit of the public employee fund to pay in full all the probable disbursements required to be made in the year 1928 on account of injuries to the public employees of all counties and their several taxing districts in the state as a whole, nor sufficient money in the state insurance fund to the credit of Cuyahoga county and the several taxing districts therein to pay deferred payments which are to be paid in the year 1928, and thereafter, which have been allowed, Cuyahoga county and its several taxing districts are not entitled to the certificate of exemption.
These propositions involve the meaning of Section 1465-65, General Code, the pertinent part of which reads as follows:
"Provided, however, that should the Industrial Commission of Ohio on or before the first day of December in any year certify to the auditor of state that sufficient money is in the state insurance fund to the credit of any county or counties to provide for the payment of compensation to the injured and to the dependents of killed employees of such county or counties and the several taxing districts therein for the ensuing year, the auditor of state shall not prepare and file with the county auditors and the treasurer of state said list or lists for such county or counties specified in such certificate; and it shall be the duty of the Industrial Commission of Ohio to make and file such certificate with the auditor of state whenever in its judgment there is sufficient money in the state insurance fund to the credit of any county or counties to provide for the probable disbursements required to be made to the injured and to the dependents of killed employees of such county or counties and the several taxing districts therein for the ensuing year."
With regard to the contention that the exemption cannot be granted unless there is in the fund sufficient money to pay in full all probable disbursements required to be made in the year 1928 for such injuries to the employees of all counties and in the state as a whole, the use of the words "any county or counties" in the statute clearly precludes such a holding. If the Legislature had intended to grant the exemption only when there is sufficient money to the credit of the fund to pay all probable disbursements in the state as a whole, it would not have said specifically that the fund was to provide for the payment of compensation to the injured and to the dependents of killed employees of such "county or counties." This phrase is repeated twice in exactly this connection and compels us to find with the relators upon that branch of the case.
The second question is more difficult. It is true that the use of the words "for the ensuing year" in each of the two parts of the second paragraph of the section militates against the contention that the fund must be sufficient to pay deferred payments which are to be paid both in the ensuing year and thereafter. However, since the Legislature in the first part of the paragraph used the phrase, "to provide for the payment of compensation," and in the second part of the paragraph used the phrase, "to provide for the probable disbursements," the Industrial Commission contends that there is an irreconcilable conflict between the different provisions of the act, and that the county and its taxing districts are not entitled to the certificate of exemption until sufficient money is in the fund to provide for the payment of all compensation, including deferred payments which are to be paid in the year 1928 and thereafter, and that the use of the word "compensation" does not permit the exemption when the fund merely contains enough money to pay in full all probable disbursements required for the ensuing year. We do not so read the statute.
When the Legislature provided that if the Industrial Commission should certify to the auditor of state that sufficient money is in the fund to provide for the payment of compensation," and then provided that "it shall be the duty of the Industrial Commission to make and file such certificate * * * whenever in its judgment there is sufficient money in the state insurance fund * * * to provide for the probable disbursements required," it used the phrases as equivalents; otherwise the Legislature would not have required the Commission to file the certificate that there was sufficient money to provide "for the payment of compensation" when there was sufficient money to provide "for the probable disbursements." The finding as to the probable disbursements could not be a requirement for the filing of the certificate as to the sufficiency of the fund to provide for the payment of compensation unless the Legislature considered the two phrases to be synonymous.
It is argued that this holding will impair the fund. This statement is not conceded, and is in fact vigorously denied. However, the problem is one for the Legislature and not for the court.
There being a clear legal right to the writ, the demurrer must be overruled and the writ allowed.
Demurrer to petition overruled and writ allowed.
MARSHALL, C.J., DAY, ALLEN, KINKADE, ROBINSON, JONES and MATTHIAS, JJ., concur.