Thaxter v. Finn

This is a proceeding instituted in this court to obtain a writ of mandate directed to defendant, requiring him to enforce against property of A. A. Janssen and the Aetna Life Insurance Company an execution issued by the clerk of the superior court of the city and county of San Francisco upon a judgment entered in said court upon an award of the Industrial Accident Commission in favor of petitioner. The award of the commission was made in a proceeding regularly instituted and prosecuted by petitioner against one F. W. Thaxter, and also said Janssen and said Insurance Company, for compensation for injuries arising out .of, and happening in the course of, his employment by F. W. Thaxter. All of these parties appeared in the proceeding before the commission. The work on which petitioner was engaged at the time of the accident was the erection of a building, said Janssen being the general contractor for such erection, the Insurance Company being the insurance carrier for Janssen, and F. W. Thaxter, for whom petitioner was working, being a subcontractor of said general contractor.

The refusal of Janssen and the insurance carrier, in June, 1916, to further comply with the terms of the award was doubtless due to the fact that on May 22, 1916, this court decided in Sturdivant v. Pillsbury et al., 172 Cal. 581 , [ 158 Pac. 222 ], and Carstens v. Pillsbury et al., 172 Cal. 572 , [ 158 Pac. 218 ] (both being proceedings in certiorari to review awards of the commission, instituted within the time allowed by the provisions of the Workmen’s Compensation, Insurance and Safety Act for the inauguration of such proceedings), that under the constitution the legislature was not empowered to confer judicial authority upon the commission to inquire into, determine, and enforce liabilities under section 30 of the act, in favor of the employee against persons other than his immediate employer. In passing, it may be said that this view has been adhered to in later review proceedings instituted within the specified time. (Donlon Bros. v. Industrial Accident Com., 173 Cal. 252 , [ 159 Pac. 715 ]; Connolly v. Industrial Accident Com., 173 Cal. 407 , [ 160 Pac. 239 ]; First Christian Church v. Industrial Accident Com., 173 Cal. 552 , [ 160 Pac.

Notwithstanding this impossibility of review in any judicial proceeding, it is urged that upon the face of the record the award and the judgment based thereon as to Janssen and the Insurance Carrier are absolutely void and open to collateral attack, for want of jurisdiction of the subject matter in the commission to make such an award, with the result that the writ of execution issued on the judgment is a mere nullity, affording no justification to the sheriff to make a levy. This claim is based upon authorities relative to collateral attacks upon judgments and declaring certain well-settled principles as to which we are in entire accord. But in our judgment those authorities are not in point here.

It seems to us that there can be no question as to the clear intent of the legislature to render awards by the commission of compensation to employees on account of injuries alleged to have been received in the course of their employment, free from review or attack of any kind except as prescribed in the Workmen’s Compensation, Insurance and Safety Act. We do not see how this intent could have been made clearer. As said by learned counsel for the commission: “It is as plain and clear as anything can be made that the statutory specifications for attack upon the awards of the commission were intended to provide the only method of attack, and to preclude any collateral attack which would, or could, be directed

It is provided in section 27 of the act that “the orders, findings, decisions, or awards of the commission made and entered under sections twelve to thirty-five, inclusive, of this act may be reviewed by the courts specified in sections eighty-four and eighty-five hereof and within the time and in the manner therein specified and not otherwise.”

Section 84 provides for the only review in the courts of such an award, a proceeding in the supreme court or a district court of appeal, inaugurated within thirty days after the proceeding is terminated before the commission, “for the purpose of having the lawfulness of the original order, decision or award or the order, decision or award on rehearing inquired into and determined,” and in which the question whether “the commission acted without or in excess of its powers” is one of the questions to be determined, as well as the question whether or not the findings of fact “support the order, decision or award under review.” In this section is to be found this provision: “No court of this state (except the supreme court and the district courts of appeal to the extent herein specified) shall have jurisdiction to review, reverse, correct or annul any order, decision or award of the commission or to suspend or delay the operation or execution thereof.”

In section 73 it is provided that all orders, rules, and regulations, findings, decisions, and awards “shall be conclusively presumed to be reasonable and lawful, until and unless they are modified or set aside by the commission or upon a review by the courts in this act specified and within the time and in the manner herein specified.” This necessarily means that whenever or wherever an award of the commission is shown it is to be conclusively presumed as against any kind of attack, collateral or otherwise (except, of course, the review proceeding authorized by the act itself), to be lawful and binding, in the absence of a showing that it has been modified or set aside by the commission or by the supreme court or a district court of appeal in the review proceeding provided by the act.

As we have stated, the claim here is that the award in this matter is void on its face for want of jurisdiction by the commission of the subject matter (we say jurisdiction of the subject matter, for, of course, in view of the record, there can be no question as to jurisdiction of the person), and that, therefore, in accord with the well-settled rule ordinarily applicable to judgments that a judgment pronounced by a tribunal having no jurisdiction of the subject matter is necessarily and incurably void, and may be shown to be so in any collateral or other proceeding in which it is drawn in question, it must be treated as a nullity. We may concede that in accord with the principles applicable to collateral attacks on ordinary judgments, notwithstanding the provisions of the act that we have set forth, absolute lack of jurisdiction of the subject matter, when apparent on the face of the judgment-roll, may be urged on a collateral attack on an award of the commission, in the highly inconceivable event of the commission assuming jurisdiction of an action for damages for libel or slander, or one for money due for goods sold and delivered, or one for damages for negligence, or, indeed, any proceeding other than one under the Workmen’s Compensation, Insur

As we have already said, we see no good reason to doubt the authority of the legislature to preclude to the extent stated, in so far as the courts of this state are concerned, any attack, direct or collateral, upon an award by the commission of compensation in any proceeding instituted by a person claiming compensation under the Workmen’s Compensation, Insurance and Safety Act, provided, always, of course, that jurisdiction of the person of the party against whom the award runs is not wanting. The language used in our constitutional provision sufficiently implies the authority to make any reasonable regulation as to the time within and manner in which any award for compensation made in a proceeding before the commission may be attacked in any way, directly or collaterally; to enact, as it were, a statute of limitations creating an absolute bar to any such attack made after the prescribed time. It is an incident of their acknowledged power to “by appropriate legislation create and enforce a liability on the part of all employers to compensate their employees,” etc., and to “provide for the settlement of any disputes arising under the legislation contemplated” by the constitutional provision, and reasonably appropriate to that end. We have already discussed this matter and the question of the purpose and .reasonableness of the provisions precluding any attack on an award other than such attacks as are provided in the act.

The situation here presented does not render the award and judgment attackable collaterally. It could be considered by

It follows that petitioner is entitled to the relief sought.

Let a peremptory writ of mandate issue as prayed.

Wilbur, J., Richards, J., pro tem., and Victor E. Shaw, J., pro tem., concurred.

I dissent.

In my opinion none of the propositions on which the majority opinion is based is logically tenable.

It is an elemental principle of law that a judgment of any tribunal, upon a subject matter of which it has no jurisdiction, is absolutely void; not merely voidable at the election of the losing party thereto if he chooses to avail himself of some procedure authorized by law, for the purpose of annulling or vacating it, but totally void whether he submits to it or not, and wholly and always incapable of enforcement against his will. The reason is simple. The power of any tribunal to adjudge a matter is given to it by the people. It can come from no other source. The judgment, when made, is, in effect, the judgment of the people. The power is always limited by the terms of the gift. Beyond that- the power does not exist. A decision upon a matter to which the power does not extend is not a decision of the people, and, hence, is of no force.

The Industrial Accident Commission is authorized to decide disputes of one kind only, that is to say, disputes between an employer and an employee in regard to a claim by the employee against the employer for the compensation allowed to him by the Workmen’s Compensation Act for an injury arising out of, and happening in the course of, his employment. It has no power to decide upon a claim by such employee for such compensation against a person who is the general contractor upon a building upon which his employer is a subcontractor, or against the owner of the building, or against one who is not his employer. A decision purporting to allow such compensation against either or all of such persons, and which

The decision which the plaintiff in this proceeding seeks to have enforced in his favor against Janssen and the Aetna Life Insurance Company, his insurance carrier, is a decision that Janssen, who is not the employer, nor claimed to be the employer, of the plaintiff, and who had no connection with him whatever, except that he contracted to erect a building and let a subcontract for a part of the work thereon to another person by whom plaintiff was employed and for whom he was at work when injured, shall pay the compensation for which the employer, solely, is liable. It was a decision upon a matter upon which the commission had no jurisdiction to act at all, as this court has repeatedly decided. (Sturdivant v. Pillsbury, 172 Cal. 581 , [ 158 Pac. 222 ]; Carstens v. Pillsbury, 172 Cal. 572 , [ 158 Pac. 218 ]; Donlon Bros. v. Industrial Accident Com., 173 Cal. 252 , [ 159 Pac. 715 ]; Connolly v. Industrial Accident Com., 173 Cal. 407 , [ 160 Pac. 239 ]; First Christian Church v. Industrial Accident Com., 173 Cal. 552 , [ 160 Pac. 675 ].)

All this is admitted in the majority opinion. The decisions in the eases last cited, although they were all cases in which the awards of the commission were attacked by a direct proceeding in this court, as provided in the Workmen’s Compensation Act, were necessarily based upon the proposition that such an award was upon a subject matter that was beyond the jurisdiction of the commission, and they fully establish that proposition. This, also, is admitted, or at all events, not disputed, in the majority opinion.

The principle I have stated applies to all courts, the highest as well as the lowest. There is no exception, not even in the ease of the supreme court itself. This court has no jurisdic

The majority meet this condition by the assertion that the Industrial Accident Commission is an exception. The exception exists, they say, because of the peculiar provisions of the Workmen’s Compensation Act. They point to the provision of section 84, that “no court of this state (except the supreme court and the district courts of appeal to the extent herein specified) shall have jurisdiction to review, reverse, correct or annul any order, decision or award of the commission or to suspend or delay the operation or execution thereof,” and to provisions of section 27 of similar import and of section 73, declaring that awards of the commission made “in conformity with law” shall be conclusively presumed to be reasonable and lawful until set aside upon a review as provided in section 84. And these provisions, they say, forbid all question, in any other court, concerning the validity of any award of the commission, no matter how obviously and palpably void it may be on the face of the record thereof. The claim is that the invalidity, though patent, cannot be taken advantage of in any collateral proceeding in any court, or at all.

The phrase “collateral attack” is relied on to justify this proposition. The act says that such award shall not be “reviewed, reversed, corrected or annulled” in any other than the prescribed manner. This, it is claimed, precludes all other “attacks.” The words bear no such significance. They each have a well known and somewhat limited meaning, and they all refer to some sort of direct proceeding in which the rulings and' the award may be examined with a view to determining whether or not they were regular or sanctioned by law and with the object of vacating the award if on such examination sufficient cause therefor is found. A judgment is “reviewed” when the proceedings leading up to it are examined by some other tribunal with power to vacate, reverse, annul, or cor

These provisions of the act limiting the power of review of awards of the Industrial Accident Commission and forbidding such review by any court other than those specified introduce no new feature into our law. A judgment of the superior court cannot be “reviewed, reversed, corrected, or annulled,” except by the courts specially empowered to do so and in the manner specially provided for that purpose. There may be more methods of procedure for review provided, but the principle is the same, and, of course, the greater variety of methods has no bearing on the question at issue. The same is true of judgments of justices of the peace. A judgment or order of a superior court may be reversed or corrected on appeal by the supreme court or by a district court of appeal. It may be annulled on certiorari, for want of jurisdiction, by the same courts. And it may be annulled or set aside for fraud or mistake by an action in equity for that purpose by the superior court itself. These are all expressly provided by law and are all of the class known as direct attacks. And none other is provided or permitted. The provisions of the act aforesaid, therefore, do no more than to place the Industrial Accident Commission, which is a tribunal of special and limited jurisdiction, upon the same plane, with respect to presumptions in its favor, and in respect that its awards can be directly attacked only by the specified courts, as that on which the law had already placed courts of general jurisdiction. The reasonable and obvious conclusion and interpretation of the act would be that this was all that was intended by the language used, since that is all that its natural and ordinary meaning imports. Yet, notwithstanding these limitations upon the power and manner of reviewing judgments of the superior courts, fully as drastic as those applying to the commission, it has never been supposed or contended that such judgments, if shown by the record thereof to be upon a subject matter not within its jurisdiction, were not ineffectual and void, subject to collateral attack, so called, at any time or place, or that they could not be safely ignored and disre

Why should there be a discrimination between these tribunals whereby such limitations, when applied to superior courts, should leave their judgments open to impeachment or "question collaterally, or obvious want of jurisdiction, but when applied to the Industrial Accident Commission, places its award beyond reach or question collaterally, although obviously and openly upon a matter over which the commission is given no power or jurisdiction whatever? The majority do not attempt to answer this question, or to give any reason for the discrimination. It does not appear that they have even perceived that there is such discrimination. In my opinion, no answer is possible and no reason for the discrimination exists.

Nor can I perceive any reason in justice for enlarging the accepted meaning of the words of the act, as, in my opinion, the majority has done. The view advanced by me could not materially affect the proceedings of the commission. The invalidity of its awards can be taken advantage of, under the principles above stated, only when the excess of jurisdiction appears on the face of the record. This means that it can be done only when the record itself shows that the commission has committed, or attempted to commit, an injustice; when it has, awarded compensation from a person whom the law does hot make liable therefor, or has assumed to adjudge a matter wholly foreign to its functions, such, for example, as to give judgment for the recovery of money due on contract, or for damages for conversion of property. It must be admitted that if an award purports to impose a liability upon someone upon whom the law does not cast the burden, reason, fair dealing, and justice alike would require that such award should have the stamp of invalidity so impressed upon it that it could be made available at any time and under any circumstances. Surely, the commission itself can have no wish to have its mistakes of that character cause such hardship and injustice, it being itself powerless to correct the mistake after the lapse of thirty days from the making thereof. Such straining of the ordinary meaning of words would seem to have no possible result other than to perpetuate injustice and wrong in cases where from any cause such as inadvertence, ignorance, sickness, or other disability, the party so mulcted

The majority admit that “in the highly inconceivable event of the commission assuming jurisdiction of an action for damages for libel or slander, or one for money due for goods sold and delivered, or one for damages for negligence, or, indeed, any proceeding other than one under the Workmen’s Compensation, Insurance and Safety Act, looking to the fixing and enforcement of compensation to an employee, or to his dependents in the event of his death, on account of injuries received by him in the course of his employment,” the objection of lack of jurisdiction of the subject matter may be urged collaterally. They also admit, as before stated, that a proceeding against the original contractor by an employee of a subcontractor, to obtain compensation for an injury received in the course of that employment, is not a lawful proceeding under said act, nor a proceeding authorized thereby. They therefore admit the error of their conclusion. The argument is comparable to the defense of the wet-nurse in Marryatt’s story of Mr. Midshipman Easy, who, when taxed by the austere and highly moral father of little Jack with being the mother of an illegitimate child and, therefore, unfit to suckle the child of such a father, answered by way of confession and avoidance, “But it was such a little one.” Here, the award being for compensation to plaintiff for injuries received in the course of his employment, and the only departure from the authority of the commission being that it has avowedly charged such compensation to one who was not legally liable, and could not lawfully or justly be made liable therefor, it is too small to be taken advantage of collaterally, although wholly unauthorized, as completely without authority of law as would have been an award of damages for libel.

There is no question here of the failure of the complaint before the commission to state a valid claim under the act. It is not disputed that the claim was made against Janssen solely on the ground that he was the original contractor, and upon the theory, now known to be erroneous, that the act cast upon him in that character a liability to compensate the employee of a subcontractor under him. The record plainly shows on its face that this is the fact of the matter. Nor was it a mere lack of evidence to show that Janssen was the employer of the plaintiff. There never was a claim that he was such employer.

Running through the majority opinion there is apparent an erroneous idea as to the nature of what is denominated a “collateral attack, ’ ’ the idea that it is some sort of proceeding to

Finally, it is said that section 21, article XX, of the constitution gives the legislature power to provide this immunity of awards of the commission from question collaterally, even when they are upon matters not committed to the commission either by the legislature or by the constitution itself. The statement in that section that “the legislature may provide for the settlement of any disputes arising under the legislation contemplated by this section,’'’ refers only to the preceding sentence, wherein power is given to the legislature to “create and enforce a liability on the part of all employers to compensate their employees” for injuries arising out of, and happening in the course of, their employment. This section, therefore, does not contemplate any legislation allowing a liability for compensation to be created against persons not employers, nor legislation providing that compensation awarded against persons not employers shall be immune from collateral attack, and that though invalid for want of power if directly attacked, they immediately become valid and enforceable if such direct attack, for any reason, is not made within the short time allowed. Hence, whatever power the legislature may have over such matters, it does not derive that power from this section, but obtains it from the general grant

For these reasons I am of the opinion that the writ of mandate applied for should have been refused.

Sloss, J., and Melvin, J., concurred.

Rehearing denied.