Opinion
No. 30788
Decided April 21, 1948.
Prohibition — Writ not issued to prevent enforcement of order already rendered — Workmen's compensation — Additional award against employer for violation of specific requirement.
Prohibition will not lie to prevent the enforcement of an order of the Industrial Commission, claimed to have been rendered without jurisdiction, where at the time such writ is sought the order is a fait accompli.
IN PROHIBITION.
This is an action instituted in this court, under Section 2, Article IV of the Constitution of Ohio, wherein the relator, The Ohio Stove Company, seeks a writ of prohibition to restrain the respondents, George L. Coffinberry, Richard W. Morse and Will T. Blake, as the Industrial Commission of Ohio, from collecting any additional assessment from the relator, and from suspending its rights, privileges and protection under the Workmen's Compensation Act for nonpayment of any additional assessment made by reason of the finding of the Industrial Commission that relator violated a specific requirement of Section 3 of the Code of Specific Safety Requirements Governing Blowers and Exhausters.
The case is before this court on the issues joined by the petition of the relator and the answer of the respondents.
The petition is as follows:
"The plaintiff, The Ohio Stove Company, is a corporation duly organized under the laws of the state of Ohio.
"The defendants, George L. Coffinberry, Richard W. Morse and Will T. Blake, are the duly appointed, qualified and acting members of the Industrial Commission of the state of Ohio.
"The plaintiff says that heretofore, to wit, on the 19th day of February, 1935, one William J. Rush was employed by the plaintiff herein and on said date received an injury during the course of his employment; that upon application to the Industrial Commission of Ohio, defendant herein, he was awarded compensation for said injury. Subsequently thereto the said William J. Rush filed an application before the Industrial Commission for an additional award for violation of a specific requirement by the plaintiff herein and the Industrial Commission on June 6, 1938, found that the claimant's injury was not due to a violation by the employer, The Ohio Stove Company, of a specific lawful requirement.
"The plaintiff further says that on the 14th day of June, 1938, the said William J. Rush filed an application for reconsideration of said order of the Industrial Commission and afterwards, to wit, on the 6th day of January, 1939, the Industrial Commission denied said application for reconsideration.
"The plaintiff further says that thereafter, to wit, on the 7th day of March, 1940, the said William J. Rush filed another application before the Industrial Commission for a reconsideration which application was filed more than 30 days after the previous application filed by the said William J. Rush was denied by the Industrial Commission and that said application for reconsideration was not filed in accordance with rule 4 promulgated and adopted by the Industrial Commission of Ohio, effective as of May 1, 1938, which provides as follows:
" 'A motion for a rehearing of the application for additional award may be filed by either party within thirty days from the date of receipt of the order and finding of the commission complained of, provided there is filed with such motion for a rehearing, all new and additional proof not previously considered by the commission and relied upon by the applicant in support of his motion for a rehearing. Upon the filing of such motion, the referee shall fix a date for the hearing of same, notifying all interested parties thereof. At least five days shall elapse between the date of mailing such notice and the date of the hearing. Both parties may be represented at such hearing either in person or by a representative qualified to practice before the commission. Upon the hearing of a motion for a rehearing, if it appears to the commission that substantial justice has not been done to the party, a rehearing will be granted and the order and finding of the commission will be modified or changed accordingly. If, upon the hearing of said motion for a rehearing, the commission is of the opinion that substantial justice was done the parties at the original hearing, the motion for a rehearing will be denied. A motion for a rehearing can be verified by the party filing the same or by his attorney or agent when the facts are within his personal knowledge or where the party filing same is a corporation, or not a resident of, or is absent from the county. A copy thereof, together with all new and additional proof, shall be furnished to the opposite party by the party filing said motion.'
"Thereafter, to wit, on the 18th day of December, 1940, upon reconsideration and without the submission of additional testimony or evidence and without notice to the plaintiff herein the commission reversed its former decision and found that the injury sustained by claimant on the 19th day of February, 1935, was caused by the employer's, the plaintiff herein, violation of section three of the code of specific requirements and granted an additional award to the said William J. Rush on the basis thereof and assessed the payment of said additional award against the plaintiff, The Ohio Stove Company, and threatened upon nonpayment of said additional assessment by the plaintiff to suspend the rights, privileges and protection of said plaintiff under the workmen's compensation law of the state of Ohio.
"The plaintiff further says that the defendants, as the Industrial Commission of Ohio, were wholly without jurisdiction, power and authority to reverse their former findings and grant an additional award to the said William J. Rush and that the said Industrial Commission will proceed with the collection of the additional assessment from the plaintiff by reason of said additional award granted to the said William J. Rush and will suspend the rights, privileges and protection of the plaintiff under the workmen's compensation law of the state of Ohio unless prohibited from so doing by order of this court.
"Wherefore the plaintiff prays that a writ of prohibition be issued to restrain the defendants, George L. Coffinberry, Richard W. Morse and Will T. Blake, as the Industrial Commission of the state of Ohio, from collecting any additional assessments from the plaintiff, The Ohio Stove Company, and from suspending the rights, privileges and protection of the plaintiff, The Ohio Stove Company, under the workmen's compensation law of the state of Ohio for nonpayment of said additional assessment by reason of the finding of the Industrial Commission on the 18th day of December, 1940, that The Ohio Stove Company, the plaintiff herein, violated a specific requirement of section three of the code of specific requirements."
The answer of the respondents admits all the allegations of the petition except the allegations, inter alia, (1) that relator did not receive notice from the Industrial Commission of the hearing on the application for reconsideration filed by William J. Rush on March 7, 1940, and (2) that the Industrial Commission will suspend relator's rights, privileges and protection under the Workmen's Compensation Act.
Those allegations are denied. For a second defense respondents say that the allegations of the petition do not set forth facts sufficient to constitute a cause of action, and for a third defense say that this court has no jurisdiction over the subject of this action. Respondents pray that the application for a writ of prohibition be denied and the petition dismissed.
Messrs. Miller, Searl Fitch and Mr. H.J. Micklethwaite, for relator.
Mr. Hugh S. Jenkins, attorney general, Mr. C.G.L. Yearick, Mr. R. Brooke Alloway and Mr. Albertus B. Conn, for respondents.
In our consideration of this case, we are immediately confronted with respondents' contention that this court is without jurisdiction because prohibition is not a proper remedy to review the regularity of the exercise of jurisdiction in the rendering of an order by the commission, where the order is an accomplished fact.
In the case of State, ex rel. Moss, v. Clair, 148 Ohio St. 642, this court held in the first paragraph of the syllabus:
"A writ of prohibition may be awarded only to prevent the unlawful usurpation of jurisdiction and does not lie to prevent the enforcement of a claimed erroneous judgment previously entered or the administrative acts following the rendition of a judgment by a justice of the peace; it may be invoked only to prevent proceeding in a matter in which there is an absence of jurisdiction and not to review the regularity of an act already performed. ( State, ex rel. Garrison, v. Brough, 94 Ohio St. 115; State, ex rel. Voight, Jr., v. Lueders, Probate Judge, 101 Ohio St. 211; Marsh v. Goldthorpe, Mayor, 123 Ohio St. 103; State, ex rel. Maysville Bridge Co., v. Quinlan, Probate Judge, 124 Ohio St. 658; State, ex rel. Frasch, v. Miller, Judge, 126 Ohio St. 287, approved and followed.)"
The acts sought to be restrained in the instant case relate to the order of the commission whereby it made an additional award. At the time of the filing of the petition in the instant case, the order of the commission was an accomplished fact; it had been made. The collection of an additional assessment by reason of the order of the commission allowing an additional award and the suspension by the commission of relator's rights, privileges and protection under the Workmen's Compensation Act are ministerial in character and relate only to the enforcement of the commission's order.
The relator's petition prays "that a writ of prohibition be issued to restrain the defendants, George L. Coffinberry, Richard W. Morse and Will T. Blake, as the Industrial Commission of the state of Ohio, from collecting any additional assessments from the plaintiff, The Ohio Stove Company, and from suspending the rights, privileges and protection of the plaintiff, The Ohio Stove Company, under the workmen's compensation law of the state of Ohio for nonpayment of said additional assessment by reason of the finding of the Industrial Commission on the 18th day of December, 1940, that The Ohio Stove Company, the plaintiff herein, violated a specific requirement of section three of the code of specific requirements."
The relator by its action seeks to prohibit the enforcement of the commission's order made prior to the institution of the instant action. This relief is injunctive to restrain the commission from performing ministerial acts, and, under the Constitution, this court has no original jurisdiction to afford such relief.
In view of our conclusion that a writ of prohibition is not an appropriate remedy, the writ is denied.
Writ denied.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN and STEWART, JJ., concur.