203 Ky. 820 | Ky. Ct. App. | 1924
Opinion of the Court by
Reversing on both the original and cross appeals.
Andrew Chamos, an unnaturalized native of Hungary, was on March 6, 1918, employed by the Sudduth Coal Company as a workman in its coal mine in Pike county, Kentucky, and on that day he sustained an accidentan the course of his employment from the effects of which he died. The employer was operating under our Workmen’s Compensation Act (sections 4880-4987, both inclusive, of 1922 edition, Kentucky Statutes) and it was insured under that act by appellant, Maryland
In the meantime the National Custodian of alien property intervened in the cause and asked that whatever sum was awarded be paid to him, while another resident Hungarian, who was a friend of the deceased, made a similar request of the court upon the ground that the dependents, Mrs. Chamos and her two infant children, had duly authorized and empowered him to collect the compensation. All those questions were heard upon the trial in the circuit court and it found and adjudged that the claimants were dependents of the deceased; that they were nonresident aliens, but that notwithstanding that fact it also held that the section of the statute (4903), allowing only half compensation “to alien dependent widows and children, not residents of the United States,” was unconstitutional and adjudged that they were entitled to full compensation as provided in the act for the death of an employee. The court did not determine the one to whom the compensation should be paid but reserved .that question for future adjudication and in the meantime directed it paid to the master com
The first question on the appeal is whether the evidence was sufficient to show that the claimants were dependents on the deceased employee and as such entitled to the award provided by the statute! In proof of their •claim as such dependents they introduced certain copies of Hungarian public records showing-' the marriage of • deceased to appellee, Rosalia B. Chamos, and the births of the other two claimants, Rosy and Maria Chamos. But it is contended that those records were not properly certified or authenticated so as to 'be competent evidence ^of the 'facts they contain. We do not, however, regard it as necessary to the disposition of the case to determine that question, since there was proof by one or more eyewitnesses', who were native Hungarians and who had '.known the deceased for a great number of years and lived fin his immediate vicinity in Hungary, that he' was duly married to the appellee, Rosalia B. Chamos, and that .afterwards the two other claimants were born as a re.sult of that marriage and while the parties were living-together as husband and wife, and that the widow was still unmarried and both she and her two daughters resided in the foreign country. In the cases- of Faustre v. Commonwealth, 92 Ky. 34, and Scott v. Scott, 200 Ky. 153, it was held that the fact of marriage might be proven by parol testimony given by persons who had -actual knowledge of the fact, and the same reason for the admission of such testimony to prove that fact would .also prevail to establish the fact of birth, since there is no difference in principle between the two issues. We, "therefore, conclude that the court properly found appellees to be nonresident alien dependents' and entitled to :-recover the award provided by the statute in their favor.
Counsel for appellees strenuously insist that section ■4903, supra, is unconstitutional as repugnant to section 1 of the Fourteenth Amendment to the Constitution of the United States, saying: “All persons born.or natur.-alized in the United States, and subject to the jurisdiction thereof, are citizens of the United States' and of 'the state wherein they reside. No state shall make or 'enforce -any law which shall abridge the privileges or
To begin with it readily will be seen that appellees' are not citizens of the United States under that section of the amendment, since they were neither born, here nor are they naturalized; neither are they subject .to the jurisdiction of either the United States, or of this or any other state. Therefore, according to the express terms of the amendment there exists no inhibition against any state making, or enforcing any law abridging any' supposed privileges or immunities of appellees, since the power in the state to d,o so is therein withheld only as to “citizens of the United States'.” Neither is the provision therein that “nor deny to any person within its jurisdiction the equal protection of the laws” applicable to the facts in this case, since appellees have never' been within the jurisdiction of this Commonwealth. If they were, corporeally ’ here and thereby properly classified as resident aliens then the last quoted language might be invoked by them if the rights sought to be enforced were of such a nature as to entitle them to rely.oh that provision; and the. same is true with reference to the other provision that “nór shall any state deprive any person of life, liberty or property, without due process of law.” But, before that provision may be invoked against’the validity'of the laws of a state' it must appear that the one relying thereon is 'about to be
As to the right of a state to extend the benefit of its exemption laws to only residents therein without violating the provisions of the Federal Constitution here re.lied on, see Cooley’s Constitutional Limitations, seventh • edition, top page 574. The text in 2 Corpus Juris, 1046, in discussing the rights of aliens under the federal constitutional provisions here relied on, says: “Resident . alien friends have practically all and the same rights and privileges as citizens, and are entitled to the bene_fit of the provision of the Federal Constitution that no state shall deprive ‘any person’ of life, liberty or property without due process of law, or deny to ‘ any person’ the equal protection of the law.” (Our italics). But, on the following page, in speaking of the rights of nonresident aliens, it is said: “Nonresident aliens are entitled to such rights and privilege as may be expressly conferred, but no duties may be imposed upon them.” In 12 Corpus Juris, 1142, it is pointed out that the ‘ ‘ equal protection ’ ’ guaranty in the section ' of the amendment, supra, may be invoked only by aliens within the jurisdiction of the sovereignty or authority whose laws are attacked; and that physical and corporeal pres-ence within the jurisdiction is necessary in order to obtain the benefit of the guaranty. Many cases supporting the text are cited in note 77 thereto, one of which is Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. R. 1064, 30 L. Ed. 220. So that, the “equal protection” guaranty of the Federal Constitution may not be invoked for the benefit of the dependent appellees heréin, if for no other reason -than that they are not only aliens, but they are also nonresident aliens and are not subject to or within the jurisdiction of Kentucky.
Coming now to a brief consideration of the specific, application of the principles discussed to alleged discriminations against aliens in workmen’s compensation acts, we find that wherever such discriminations are attempted to be made in those acts, or where alien dependents in case of the death of the employee, especially if' they are nonresident aliens, are wholly excluded from the benefits of the act, such discriminations or exclusions-have everywhere been upheld except in the single instance of the Kansas case of Vietti v. Geo. K. Mackie Fuel Co., 197 Pac. 881 ; and in that case it was unnecessary to decide the point, since the applicant was a native-of a country between which and the United States there-existed a treaty whose language was broad enough to-guarantee to him the same privileges as extended to citizens of the United States, under which circumstances it
We have so far discussed the question without reference to the right of a state to provide for the classification of persons ytho are entitled to the benefits'of a statute. The cited cases uphold such right wlien the classifications are n.ot arbitrary and they also shy that the classification of aliens and citizens in the extension of such privileges is not an arbitrary one- and will'be upheld, especially so when the alien classification refers only to nonresident aliens, such as are appellees' here. It is, therefore, our conclusion, without ’further extension of the discussion, that the court erred in holding section 4903, which is-a part of our Workmen’s Compensation Act, unconstitutional; and as a consequence erred when it adjudged that appellee's were entitled to full compensation instead of half compensation as provided by that section.
The questions raised on the cross-appeals may be briefly disposed of.--.As we .construe the two .petitions filed in the circuit court for a review of the finding of the compensation board, no objection is made in either of them to that part of the board’s award 'saying: “As the claimants herein are alien dependents, the ¿mount of compensation- herein awarded shall be paid' to the alien property custodian,'and held in trust by him until Congress shall enact the necessary legislation contemplated in section 5 of the treaty of peace with Hungary.” But, if we are mistaken on that point, it is our conclusion that the temporary order of the board in so directing'the awarded installments to be paid to the alien property custodian until the time designated in' the order was and is correct, and that there was nothing'shown at the trial in the circuit court to authorize a different ruling. So that in either event we think the circuit court was not authorized to direct such payments to be paid to its master commissioner ¿s a quasi receiver in the casé.