Opinion, per NICHOLS, C. J.

22, before authorized to carry their own insurance, in the language of the act itself, "shall pay into the state insurance fund such amount or amounts as are required to be credited to the surplus in paragraph two of section seven hereof [Section 1465-54, General Code]." This amount is five per cent. of the full premium.

Attention is called to the fact that the law requires this payment to be made into the state insurance fund, and the contribution so made by the self-compensating employer, although credited to the so-called surplus fund, is in fact made to the state insurance fund.

Third. The bond executed by the self-insuring employer, payable to the state for the benefit of injured and killed employes, which in legal effect is a contribution to the general insurance fund.

The general assembly invested the Industrial Commission with full discretion in the matter of allowing employers to carry their own insurance. The privilege was safeguarded, hedged about, and restricted. The amount of the bond, the financial responsibility of the applicant, the sufficiency of the surety, were all to be determined by the commission. The failure to observe any of the valid orders of the board on the part of the employer would work almost automatically to remove from the employer the privilege of self-compensation.

In the eyes of the law, this bond was substantially the same as cash; and, in theory, at least, constituted a part of the fund available for payment of compensation. And as a matter of general

Opinion, per NICHOLS, C. J.

knowledge it has so worked out in practice; fully justifying the theory of the law.

In contemplation of both the statute and constitution there is but one fund, and that is the State Insurance Fund.

The constitutional amendment, Section 35, Article II, provides for the creation of but one fund. The so-called surplus fund is wholly of statutory creation, and after all is only a part of the general fund.

It is thus demonstrated that to the extent mentioned this class of employers does contribute to the state insurance fund.

Section 24 of the act provides that an employer paying the premiums provided by the act into the fund, or electing directly to compensate his injured employe, shall post in conspicuous places about his place of business notices stating the fact that he has made such payment and has complied with the provisions of said Section 22 and all the rules of the board made in pursuance thereof, and has been authorized directly to compensate such employes or dependents, and that the same, when so posted, shall constitute sufficient notice to the employe of the fact.

It seems only just and fair to hold that an employe seeing such notice is entitled to rely on the fact that the state has properly secured to him. everything which might be due him under the Workmen's Compensation Act. The employe should not be the one to assume the risk of the inadequacy of the bond required by the board, or of the insolvency of the employer.

Opinion, per NICHOLS, C. J.

Section

The state itself has assumed the responsibility and the duty of attending to that matter. 29 of the act provides as follows: "Every employe, or his legal representative in case death results, who makes application for an award, or accepts compensation from an employer who elects, under section 22 of this act, directly to pay such compensation waives his right to exercise his option to institute proceedings in any court, except as provided in section 43 hereof."

The necessary implication from this language is that employes of employers who pay into the fund, and employes of employers who compensate directly, are upon an equal and exact footing as to waiving the "right to exercise * option to institute proceedings in any court, except as provided in section 43." Each would seem to be included in the exception and in the right to appeal.

*

Such fund, the fund created by the contributions from all the different sources referred to, including the proportion paid by self-compensating employers, is a fund to be administered by the Industrial Commission to carry out the purposes of the act, and, if an employe of a self-compensating employer applies to the commission, and the commission denies his right to participate at all in such fund, it would seem that Section 43 would give him the right of appeal.

There is nothing in the act indicating a purpose that by applying to the commission such employe is expected to put into final hazard his whole right of recovery.

By the provision of Section 27 the commission

Opinion, per NICHOLS, C. J.

is required to institute suit against a self-compensating employer who refuses to pay its award in favor of an injured employe, and by the same section the commission is given authority to compromise such suit.

There is nothing in the act indicating a purpose that the commission has the right to finally and forever shut the door on such employe by refusing his application to participate at all in such fund.

Finally, in the construction of the words, "such fund," this court is constrained to take the broader view and ascribe to the legislature the intention to permit employes of self-compensating employers to participate in the fund to the extent of their claims duly proven on appeal.

The claim is made by the state that the insurance fund would be endangered by such depletion, and that this broader construction would entitle employes of employers who have not contributed to participate, to the injury of the employes of employers who have paid the full premium into the state fund.

We think this claim wholly unwarranted by the facts and the light gained by the experience of nearly four years' administration of the fund.

The five per cent. paid into this very fund by the self-compensating employers would easily cover the full payment of all such judgments; and, furthermore, if the claimant maintains his action. on appeal, and the state pays him out of the fund, it, the state, has a clear cause of action to recover from such employer or his bondsmen the full amount of such judgment.

Opinion, per NICHOLS, C. J.

The result then is full protection to the employe without ultimate loss to the state.

Section 43 is a general section, and covers all questions in a general provision with full power on the part of the board to hear and determine.

The provision is explicit, that, if the final action of the board denies the right of the claimant to participate at all in such fund, he may appeal.

There is nothing to indicate that a limitation is placed on the word "claimant." It would seem to cover any employe referred to in Section 22; that is, an employe of an employer who pays in full to the fund as well as of one who compensates directly.

The state has chosen to stand between the employe and every class of employers. It has permitted the employer to give bond, has decided to carry on the suit in its own name when suit is necessary; and, if the state pays, when its board has assumed to find that an employe has no right, and a jury finds differently, only simple justice is done.

Section 43 says any final judgment shall be paid "out of the state insurance fund in the same manner," etc.

It seems quite clear that the proper holding is to the effect that every provision in the entire law which looks to payment of compensation premiums by employers, whether direct or indirect, constitutes such payment a part of the fund.

The judgment of the court of appeals is therefore reversed.

Judgment reversed.

WANAMAKER, NEWMAN, JONES, MATTHIAS, JOHNSON and DONAHUE, JJ., concur.