163 S.E. 16 | W. Va. | 1932
These two appeals from the rulings of the state compensation commissioner, and prayer for prohibition in No. 7043, present one controlling question of law and will be considered together.
In the Long Flame case, the employee, Cabell Thomas, was injured by a slate fall in the mine on November 29, 1929, and died on November 30, 1930, at about ten o'clock A. M., more than one year from the date of his injury. In the Pettry case, Harrison Pettry, the husband of Alice B. Pettry, and an employee of Glogora Coal Company, was injured in the employement on September 30, 1926, and died on December 9, 1930, more than one year from the date of his injury. In the Long Flame case, the commissioner awarded compensation to the widow of Thomas of thirty dollars per month and to three children five dollars each per month until they arrived at the age of sixteen years. In the Pettry case, the widow and minor children were refused compensation on the ground that Pettry's death occurred more than one year from the date of his injury. The question presented is this: Does the commissioner have power under the Compensation Act to make awards to dependents where the death of the employee occurs more than one year from the date of the injury? In the first case, the commissioner awarded compensation to the widow and infant children, while in the Pettry case, compensation was denied to the widow and infant children. In the Pettry case, the death of the injured *411 workman occurred a little over four years from the date of his injury; while in the Long Flame case, Thomas died one day after the expiration of one year from the date of his injury.
Here, we have two rulings which are apparently inconsistent. It is true, that in the Long Flame case, the commissioner takes the position that the award to the widow and minor children was based on the theory that Thomas, the employee, died less than one year from the date of his fatal injury. We find no basis of fact for that contention. There is no controversy of fact as to the time when he received his injury on November 29, 1929, and there is no question but that he died on November 30, 1930, about ten o'clock A. M. If no compensation can be awarded to dependents where the death of the employee occurs more than one year from the date of injury, then it is immaterial whether the employee died one day or four years after the one-year period. One day is as effective to prevent awards as four years.
When and to whom shall death benefits be paid under the Compensation Act? Code 1931,
It is argued that the commissioner has always interpreted the act to mean that no award can be made to dependents *413
after one year from the date of the fatal accident, and therefore the practical administrative construction over a long period of years should not be disturbed except for cogent reasons. Daniel v. Sims,
It is argued on behalf of the dependents that the statute should be construed to give them compensation after the one-year period because the act is in derogation of common law principles and of existing statute law, especially Lord Campbell's Act (Code 1931,
We advert to the Long Flame case. Was the order of the commissioner awarding compensation to the widow and minor children coram non judice? If so, he has exceeded or abused his jurisdiction and his order is void. If, on the other hand, he had jurisdiction to promulgate that order, and his action was not in excess of, or abuse of jurisdiction, the remedy for reversal is by appeal and not by prohibition; both of which remedies are here invoked. Long Flame appealed alleging (1) that the commissioner had no power to make the awards because the death did not occur within one year from date of fatal injury, and (2) that he erred in not entertaining its protest received by him on April 11, 1931. By an amendment to the petition, it prays for prohibition against him *416 to prevent payment of the awards, on the first ground above stated.
That he has jurisdiction to make awards to dependents of deceased workmen who die within one year from date of fatal injury cannot be questioned. The substance of definitions of jurisdiction is, power to hear and determine a cause. "Jurisdiction in courts is the power and authority to declare the law. The very word in its original, imports as much; it is derived from juris and dico — I speak the law." Johnston v.Hunter,
We conclude that he has abused his power in the instant case. He was without power to make the awards; they are null and void, and should be prohibited.
Prohibition awarded.