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Opinion, per Nichols, C. J.

Messrs. Chapman, Howland, Niman & Younger, for plaintiff in error.

Mr. Joseph McGhee, attorney general; Mr. William J. Ford; Mr. Samuel Doerfler, prosecuting attorney, and Mr. G. A. Howells, assistant prosecuting attorney, for defendant in error.

Nichols, C. J. The sole question involved in this case has reference to the right of an injured employe, denied recovery of compensation by the Industrial Commission, to appeal from such decision to the common pleas court, where the employer was one of the class authorized by law to elect to pay compensation direct to the employe injured in the course of his employment.

Both the court of common pleas and court of appeals of Cuyahoga county held that the right to appeal did not exist.

It will be seen at once that if this decision is in accordance with law there is existent a marked discrimination in the law, in favor of the employe of the employer who contributes to the state fund, and against the employe of the employer who elects to pay direct.

The discrimination is a substantial one, and, if the judgment below is to stand, it raises a grave question as to the constitutionality of Section 22 of the Workmen's Compensation Act, providing for self-insurance and direct payment.

This section was assailed in the case of The State, ex rel. Turner, Attorney General, v. The United States Fidelity & Guaranty Company of Baltimore, Md., ante, 250, the claim being there

Opinion, per Nichols, C. J.

made that the provisions of Section 22 of the act are unconstitutional, in that there is thereby created an arbitrary, unjust and unlawful discrimination among the several classes of employes, and that there is no provision in the section by which an employe of such employer, who makes application to the board for compensation and is refused, may have any relief whatever, either against the state or against the employer direct.

Indeed it is difficult to see, if this contention is sound, how the provisions of Section 22 could be retained as a part of the Workmen's Compensation Act.

Employes in exactly similar employments, who are employed in different establishments, one of which pays into the fund and the other paying direct, would have different rights without having any voice in the matter; or, perhaps a more accurate statement would be, that the one class would have certain rights wholly denied to the other class.

The employe of a self-insuring employer would be denied the right of appeal granted to one employed by an employer who contributes to the fund, and this notwithstanding the employe of the selfinsuring employer had remained in the employ relying on the fact that the state, through its duly established agency, had taken all the necessary steps to provide for his compensation as fully and completely as it had provided for the compensation of employes of those who paid into the fund. The validity of any such discrimination or classification might well be questioned.

Opinion, per Nichols, C. J.

This court, in the case just referred to, refused to sanction the contention made as to the unconstitutionality of Section 22, and upheld it in its entirety; holding that the general assembly, in permitting employers who so elected to carry their own insurance, had safeguarded fully the legal rights of all employes of such employers, and, in case of denial of participation in the fund, had provided the same remedies to the one class as to the other.

If the law had provided a different remedy in the one case from that of the other, the classification thus made, if fair and reasonable, would not have defeated the provision of Section 22. But if, as held in the court of appeals, it provided for an appeal in the one instance and denied it in the other, then serious doubts of its validity at once arise.

This is especially so when it is observed that under the Workmen's Compensation Act no provision was made, nor is claimed by anyone to have been made, whereby the employe of the self-compensating employer could have a cause of action against such employer direct, in the event of a denial of his claim by the Industrial Commission; the general effect being that, if he could not appeal as against the Industrial Commission, and by submitting his claim for damages to such tribunal foreclosed himself from suing his employer in an original action, he would be wholly without any remedy.

It is quite clear that the general assembly did not contemplate any such condition of affairs, and, unless the plain language of the statute forbids giving the law a construction differing from that

Opinion, per NICHOLS, C. J.

accorded it by the courts now under review, we are confronted with the dilemma, if we affirm the judgments of the lower courts, of making a finding that in effect would be to hold a very important part of the Workmen's Compensation Act unconstitutional.

A construction working such havoc should be avoided, unless the plain language of the statute forbids

any other construction. It is the clear duty of the courts to avoid, if at all possible, the rendering of a judgment in a collateral proceeding that would have the necessary effect of destroying a law by indirection.

In the consideration of the question involved in the instant case the court should not ignore the consequence of its decision; especially since it is all but certain, that if appeal be denied employes of the class of plaintiff in error's ward, then the law by indirection is held unconstitutional.

We feel that we are bound by the rules of construction applicable were the constitutionality of Section 22 of the act directly assailed. These rules are quite well understood, and it is unnecessary to repeat them here.

Would there be a necessary and obvious inconsistency between the section in question and the constitution? Is there no "fair course of reasoning," no mode of interpretation, available, by which, without reading foreign matter into the law, the right of appeal may be granted to plaintiff in error?

Proceeding then with such compass and chart as our guide, we think it not difficult to demonstrate that it was clearly the intention of the general

Opinion, per NichoLS, C. J.





assembly to grant an appeal to the claimant, whether he be of the one class or the other; and that such right was granted.

The pertinent portion of Section 43 of the Workmen's Compensation Act (Section 1465-90, General Code) is as follows: "The board shall have full power and authority to hear and determine all

questions within its jurisdiction, and its decision thereon shall be final. Provided, however, in case the final action of such board denies the right of the claimant to participate at all in such fund on the ground that the injury was self-inflicted or on the ground that the accident did not arise in the course of employment,

then the claimant may, by filing his appeal in the common pleas court," etc.

The contention herein revolves around the proper construction to be given the words “such fund.” The claim made by the state and upheld by the court of appeals is that these words mean the fund created from the full premiums paid by the employers who pay into the fund.

We think that the contention thus made and upheld contemplates too narrow a construction of these words.

The fund with which the Industrial Commission deals is provided for by Section 22 of the act. There are three sources provided in the act from which moneys to satisfy claimants are available:

First. The fund created by the payment of full premiums of employers to the state. Second. The funds of self-compensating em

. ployers, who, by express requirement of Section

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