Opinion
No. 27396
Decided November 15, 1939.
Workmen's compensation — Mandamus to compel Industrial Commission to make order definite — Section 1465-90, General Code (117 Ohio Laws, 86) — Order amplified after mandamus instituted — Attorney fee not taxed as costs against commission, when.
IN MANDAMUS.
Relatrix, Ethel Cline, was awarded workmen's compensation on a temporary total basis from December 20, 1937, to July 10, 1938. Thereafter she filed an application for additional compensation and on December 6, 1938, the Industrial Commission made an order, which was entered upon its record:
"That the application for additional compensation beyond the date of last payment be dismissed."
On December 30, 1938, relatrix filed in this court a petition in mandamus to require the commission to state the ground or grounds for its order or to make the same definite, and for an allowance of attorney fees as provided by statute.
In its answer filed on January 26, 1939, it is alleged that the commission on that date entered the following order upon its record:
"This matter coming on for hearing on consideration of the commission's order of December 6th, at the suggestion of the Attorney General, it not having been brought to the attention of the commission prior to this time that the commission's order of December 6, 1938, was indefinite — it is the order of the commission that said order be and the same hereby is vacated, and the commission now on reconsideration of the claimant's application for additional compensation filed June 14, 1938, finds that the claimant is fully recovered from her injuries of December 20, 1937, and that she has heretofore been fully compensated for such disabilities as are the result of the injury, and that the condition from which she is now suffering, viz., a neurosis and disability of the supra orbital nerve, is not the result of the injury in this claim. Inasmuch as said disability is not the result of the injury in this claim, it is ordered that the application for additional compensation be and hereby is denied. (Note: Copy of this order is being mailed to clt. by registered mail, return receipt requested; copies to Atty., employer and Atty. Genl.)"
Mr. Franklin C. Gepfert and Mr. John C. Fontana, for relatrix.
Mr. Thomas J. Herbert, attorney general, and Mr. E.P. Felker, for respondent.
The relatrix predicates this mandamus proceeding upon that portion of Section 1465-90, General Code (117 Ohio Laws, 86), effective July 3, 1937, which reads:
"If the order of the commission does not state the ground or grounds on which the claim was denied, or if the order of the Industrial Commission is not definite in such regards, the claimant may maintain an action in mandamus against the commission in the Supreme Court of Ohio, and, if the final order in such proceedings directs the commission to state the ground or grounds of its order or make the order definite as to the ground or grounds thereof, then there shall be taxed as part of the costs assessed against the commission an attorney fee in the amount of $250."
Counsel agree that the second order of the commission denying additional compensation on January 26, 1939, definitely stated the grounds. Therefore, that issue is moot and the only question before this court is whether attorney fees should be taxed.
Counsel for the relatrix in their brief assert that the purposes of the General Assembly in amending Section 1465-90, General Code, were to avoid confusion in the court as to what orders were final and appealable, and to place a penalty upon the Industrial Commission. Counsel direct our attention to observations and admonitions by this court when reviewing orders of the Industrial Commission which were not definite in State, ex rel. Randolph, v. Industrial Commission, 128 Ohio St. 27, 31, 190 N.E. 217; State, ex rel. Depalo, v. Industrial Commission, 128 Ohio St. 410, 419, 191 N.E. 691; Simmons v. Industrial Commission, 134 Ohio St. 456, 457, 17 N.E.2d 751.
Forfeitures and penalties are not favored in law or equity and statutory provisions therefor must be strictly construed. 19 Ohio Jurisprudence, 204, 215, Sections 4 and 17; 37 Ohio Jurisprudence, 752, Section 425.
Section 1465-90, General Code, provides for taxing an attorney fee only if the final order in the mandamus proceeding directs the commission to amplify its order in the respects named in the amended statute.
Strictly construing the penalty portion of that section, in connection with the admission that the order of the commission dated January 26, 1939, is definite, this court by virtue of the limited language of that section is not warranted in issuing a writ of mandamus.
Writ denied.
WEYGANDT, C.J., WILLIAMS, MATTHIAS and HART, JJ., concur.
MYERS, J., not participating.