DUNSEATH v. NEVADA INDUSTRIAL COMMISSION
Dunseath v. Nevada Industrial Commission
Sanders, J.: Í dissent.
DUNSEATH v. NEVADA INDUSTRIAL COMMISSION
DUNSEATH v. NEVADA INDUSTRIAL COMMISSION
No. 2872
December 2, 1929.
282 P. 879.
Harry Dunseath, for Appellant:
M. A. Disltin, for Respondent:
OPINION
By the Court,
Ducker, C. J.:
Appellant brought this action in the court below against the Nevada industrial commission to compel the commission to pay him the sum of $600 out of an award to an injured workman. It is alleged in the complaint that said amount is the agreed compensation for appellant's services as an attorney for securing for said workman an enlarged compensation in an action instituted in the district court against the commission.
Respondent filed a demurrer to the complaint, and as grounds of demurrer alleged that the complaint did not state facts sufficient to constitute a cause of action, and further that the contract sued upon was in direct violation of the specific provisions of the statutes of Nevada and contrary to public policy.
The demurrer was sustained by the court and judgment entered thereon. The judgment is based upon the conclusion, of the court that the contract for compensation of the attorney out of the moneys of the award is void under the provisions of section 28 of the Nevada industrial insurance act (Stats. 1913, c. 111), as amended by Stats. 1915 at page 291, c. 190, sec. 10. The section in part reads:
"Compensation payable under this act, whether determined or due, or not, shall not, prior to the issuance and delivery of the warrant therefor, be assignable; shall be exempt from attachment, garnishment, and execution, and shall not pass to any other person by operation of law."
Appellant contends that the provisions of this section are not applicable in a case like this where an enlarged compensation has been awarded by a court, but are applicable only to an original award made by the commission. We do not agree with this contention. The terms of the section are clearly against it. The exemptions ¡and prohibitions found in the section apply to all "compensation payable under the act."
If the district court bad jurisdiction of the action for an enlarged compensation, how can it be said that the claim rejected by the commission and finally awarded by the court is not compensation payable under the act. Counsel virtually conceded jurisdiction by instituting that action, and such jurisdiction has not been questioned by counsel in any of the cases of that character coming to this court. It has been held by this court that, after a claim for compensation had been rejected by the commission, a judgment might be obtained against it in a court of competent jurisdiction. State v. Nevada Industrial Commission, 40 Nev. 220, 161 P. 516, 518. In this regard the court said:
"If a claim is finally rejected in toto, that is the end of it so far as the commission is concerned, unless a judgment is obtained against the commission in a court of competent jurisdiction, in which event the judgment will have the force of an allowed claim. Should the commission refuse to pay such final judgment, mandamus would be an appropriate remedy."
As such a judgment has the force of an allowed claim and it is the duty of the commission to pay it, the compensation awarded by the judgment comes clearly within the scope of section 28.
Counsel for appellant calls our attention to Richey v. Ziegler, 89 Cal. App. 35, 264 P. 293. It is claimed that the case is directly in point and in accord with his' contention. While counsel did not discuss the case, we think the statement he must rely on to the effect that the defendants could not invoke the defense of the invalidity of the assignment is inconsistent with the purpose of section 28 of our act. This section clearly expresses the intention of the legislature that the award shall be paid only to the claimant. A contract to the contrary is of no force and effect. Pacific Electric Ry. Co. v. Commonwealth Bonding & Casualty Ins. Co. et al., 55 Cal. App. 704, 204 P. 262.
It is further contended that said section is in violation of section 15, article 1, of the Constitution of Nevada, and of section 10, article 1, of the Constitution of the United States. This contention is likewise untenable.
To impair, within the meaning of the constitutional inhibition, "is in some way to weaken or diminish the power which the courts had when the contract was made to enforce it, if enforoible specifically, or to give remedy by damages for failure to perform" it." Miller on Const. of U. S. p. 541; quoted in Brearley School v. Ward, 201 N. Y. 358, 367, 94 N. E. 1001, Ann. Cas. 1912b, 251. Mr. Justice Miller, in his treatise on the Constitution of the United States, at page 531, speaking of the meaning of this constitutional inhibition, also says:
"What is meant is that after the contract has been made no state shall make a law which impairs its force, and it does not mean anything more than that."
The section assailed by appellant was enacted long prior to the contract in question. Consequently, under the elementary rule stated above the obligation of this contract could not be impaired by it. 6 R. C. L. p. 326, par. 315, and cases cited in notes 14, 15, 16, and 17.
In appellant's closing brief are found objections on other constitutional grounds, but we think they are without merit. Lynch and appellant were not prohibited by the section from contracting for the payment of an attorney fee to the latter, but from agreeing that it should be paid out of the award. We are satisfied that the provisions of the section in this regard are within the police power of the legislature. Appellant denounces the statute as unjust, but this consideration was for the legislature.
The judgment of the lower court should be affirmed.
It is so ordered.