« PreviousContinue »
Opinion, per Nichols, C. J.
the exclusive method by which compensation should be gathered and dispensed.
It is claimed that Section 22 denies to a part of the workmen of the state permission to participate in the fund, and excuses a portion of the employers of the state from compulsory contribution to the fund, while all others are compelled to contribute.
The doctrine of “Expressio unius est exclusio alterius" is invoked by the state.
This court is not now concerned with the operative effect of the act, nor with the administrative methods; but, taking Section 22 as it was framed and enacted into law by the general assembly, we are unable to see wherein it offends against the constitution.
By the terms of this section the industrial commission retains and must exercise the most complete supervision over the award and payment of compensation by those who by permission of the commission are permitted to pay directly to injured or the dependents of killed employes.
The employe is favored with the most complete guarantee that he will receive the same benefits he would have received had his employer contributed to the state insurance fund. The underlying purpose of the compensation act is in no manner thwarted.
Before this independent method of dispensing compensation is permitted, the industrial commission must determine that the noncontributing employer is of sufficient financial ability to render certain the payment of compensation to injured and killed employes or their dependents. This is the crux of the matter. It ought not escape attention
Opinion, per NICHOLS, C. J.
that the constitutional provision is permissive and not mandatory, and it is to be gathered from a perusal of it that the details of the law and the method of its administration were largely left to the good sense of the general assembly. The law could have been framed, no doubt, so that all employers would have been compelled to participate in the one fund to be administered wholly by the state board, but the law's departure from that exclusive method is not of such palpable nature as to suggest to this court that it should destroy such portion of the law.
The second and fourth constitutional objections to Section 22 may be considered as one, since they are of like import, it being urged that the section violates the equal-protection clause of our Bill of Rights and that part of the Fourteenth Amendment to the Federal Constitution forbidding the denial by any of the states of equal protection of the laws.
The third objection will be considered with the second and fourth, for essentially, and so far as this act is concerned, Section 26 of Article II, to the effect that all laws of a general nature shall have uniform operation throughout the state, is only expressing in another form the doctrine of equal protection before the law.
Counsel for the relator, while granting without question the right of the general assembly to distinguish, select and classify objects of legislation, at the same time assert that the classification made by Section 22 is unnatural, arbitrary and unreasonable.
Opinion, per NICHOLS, C. J.
The classification effectuated by this section is one of employers rather than of employes, although it must be admitted that employes, without having any voice in the matter, are by virtue of the election of their employers necessarily also classified.
It is not always an easy matter, by the mere examination of a statute, where classification of any sort is attempted, to determine whether the classification is arbitrary, unreasonable and unnatural. Probably one of the most sensible tests is to determine whether any substantial favor is gained by the one class or any greater burden is fastened on the other by reason of the classification.
Measured by this test, it is felt that the assaults on this section must fail. Neither employer, employe, nor the state, suffers any additional burden, nor are they subjected to any substantial discrimination.
It is possible that all of the employers of the state might have elected to pay the compensation direct to the injured employe. Had this been the case, there would still be a large field for the board of awards to occupy, for it would still be the lawchosen intermediary between the employer and employe, to see that justice is done in every case. And, again, it were possible that no employer would avail himself of the system of paying direct.
However, the choice of the two methods is open to all. The law creates no favored class; it only conditions the choice by the necessities of the case, in order that the compensation may be certain.
Whether the contributing employer is compelled to pay a greater premium to the state fund, by
Opinion, per NichoLS, C. J.
reason of the election of others to pay direct, is, and
fact that the state itself by direct appropriation from the general revenue funds of the state pays all charges and expenses incident to the discharge of this great trust.
There is no claim made, nor could one be made in reason, that accidents to employes are more likely to be anticipated in the one case than in the other.
The state itself suffers no additional burden by reason of any number of employers electing to pay the compensation direct. In fact, the labors of the commission and the expense incident thereto are lessened to the extent that compensation is paid directly to the employe. The employe cannot suffer either through delay or diminution of award.
In view of above facts we are unable to observe in the terms of Section 22 any denial of the constitutional guarantee of equal protection before the laws.
If the law is faithfully administered, and we are bound to assuine that it is and will be there is absolutely no discrimination between the employes of contributing and noncontributing employers, nor can there be.
The state board of awards that administers the fund contributed by the employers exercises the
Opinion, per NICHOLS, C. J.
closest scrutiny and control over those employers who pay direct. So far as we can see, the only difference is in the person of the paymaster-in the one case, the state, and, in the other, the employer. The law expressly provides that the compensation when paid direct shall in no event be less than that paid out of the state insurance fund. As heretofore stated, the board of awards must be satisfied of the financial ability of the noncontributing employer, and is further authorized to require such security or bond from such employers as it may deem proper, adequate and sufficient to secure to injured employes the payment of compensation. In other words, the state board of awards is clothed with full authority to make certain the payment of compensation, just as certain in fact as if the state fund itself was to be drawn upon.
If, then, the compensation in the one case is to be as great as in the other, and if the prompt payment is as certain in the one case as in the other, the claim of inequality before the law is dissipated to the very vanishing point.
The matter of the wisdom or unwisdom of permitting indemnity insurance contracts to survive in Ohio has no possible connection with this question.
In the discussion of this phase of this series of lawsuits, the insurance issue, acute as it is, should therefore be entirely disregarded. Section 22 neither authorizes nor denies the right of employers to enter into indemnity contracts to protect them from loss or damage from injury to employes, and we cannot see how any injured employe, or the dependent of any killed employe, is