Maroulas v. State Industrial Acc. Com. , 117 Or. 406 ( 1926 )

If plaintiff's statement of the issue before this court is correct, there would be no room for controversy. It is elementary law that an officer clothed with judicial or quasi-judicial power cannot delegate that function: 15 C.J. 513, § 183, State v. Smith, 1 Or. 250; Moore v. Wilson, 84 Kan. 745 (115 P. 548).

We do not think that the statement of the issue here as placed by plaintiff and quoted above is correct. When an appeal has been taken from the decision of the State Industrial Accident Commission, it ceases to be clothed with discretion in the matter of the claim and becomes an actor: Butterfield v. StateIndustrial Acc. Com., 111 Or. 149 (223 P. 941, 226 P. 216). The matter in controversy has been removed from the Commission to court. When the jurisdiction of the court has attached, the Commission has no more control over the controversy than has any other litigant in court. By the statute the Commission is bound to abide by the judgment and order of the court. It is settled law that an attorney has authority to submit a pending case for arbitration: Morse, Arbitration and Award, 15; 2 R.C.L. 991, § 70, p. 357, note 17; 6 C.J. 650, § 158.

The Circuit Court properly denied the motion to dismiss the appeal: Holst v. State Industrial Acc. Com., ante, p. 370 (244 P. 319).

The only question involved in the claim of plaintiff is the extent of his injury. This matter would be determined largely by medical expert testimony. The claimant made the offer to arbitrate to the Commission and his offer was accepted. He proposed to submit the matter to three disinterested physicians of Portland. This was all done after he had appealed to and his case was pending in the Circuit Court. Thereupon the Commission submitted to him the names of six physicians of high professional standing from which he selected the three who made the award. This seems to us to have been an appropriate, fair and inexpensive way of adjusting the controversy.

Other public corporations have the power to submit controverted questions for arbitration: Johnson v. Prineville, 100 Or. 105,117 (196 P. 817).

"A municipal corporation, unless restricted by its charter, has the power to submit any controversy to arbitration, and the legislative body thereof has implied power to bind the corporation by such a submission. This is said to be a necessary incident to its capacity to prosecute and defend suits at law." 2 R.C.L. 357, 358, note 21.

The statute has conferred upon the Commission the power to sue and be sued. The Commission would not have authority to submit to arbitration a claim pending before it because that would be a delegation of its functions which is not authorized by statute. To submit to arbitration a controversy after an appeal has been taken from its decision is not a delegation of its functions, however, because it no longer has any control over the controversy in any way different from the control any other litigant has over a case pending in court. It was error, therefore, for the court to reject evidence of the submission of the controversy between the plaintiff and defendants to arbitration: Morse on Arbitration and Award, 488. In the instant case the plaintiff sought the agreement to arbitrate. He should not be allowed, after the cause was submitted at his request, to repudiate his agreement on the ground that the Commission had no authority to make such an agreement.

No question is raised in the appeal about the regularity of the arbitration. We therefore pass no opinion upon the regularity of the arbitration agreement or the validity of the award. The judgment of the Circuit Court is reversed and the case remanded to the Circuit Court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

McBRIDE, C.J., and BURNETT and RAND, JJ., concur.