State Ex Rel. Hovey Concrete Products Co. v. Mechem , 63 N.M. 250 ( 1957 )

COMPTON, Justice.

This is an original proceeding in mandamus to compel the Governor to appoint Commissioners to administer the provisions of the Workmen’s Compensation Act, Ch. 246, L.1957, 1953 Comp. § 59-10-36 et seq. The Governor declined to appoint the Commission because of doubtful validity of the Act.

The attack on the Act is multiple but the main question is whether it confers an unlawful delegation of judicial power on the commission. We think it does, and we approach the conclusion feeling that the members of the legislature enacting this law labored just as honestly and zealously in their efforts to act within the constitution as do we of the judicial department. We should not presume to strike down the result of their labor unless satisfied beyond all reasonable doubt they went outside the constitution in enacting the challenged law. But deeply rooted in American Jurisprudence is the doctrine that state constitutions are not grants of power to the legislative, to the executive and to the judiciary, but are limitations on the powers of each. No branch of the state may add to, nor detract from its clear mandate. It is a function .of the judiciary when its jurisdiction is properly invoked to measure the acts of the executive and the legislative branch solely by the yardstick of the constitution. Article 3, Section 1, New Mexico Constitution provides:

“The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either .of the others, except as in this Constitution otherwise expressly directed or permitted.” (Emphasis ours.)

Under the Act, recovery of compensation is the exclusive remedy of an employee against his employer and his insurers. The employee may file a claim with the commission for benefits. The employer joins issue by answer, thus we have a controversy between private litigants. Following a hearing before the commission, or an agent or officers designated by it, findings of fact and conclusions of law are made and filed. When filed, the findings are conclusive and final, if supported by substantial evidence, and shall have force and effect of judgments. Appeals granted by the Act are limited to a review of legal questions only; no provision is made for a review of the facts.

Clearly there is an unlawful invasion of the constitution. This is not to-say that the legislature, in the exercise of its police powers, may not confer “quasi-judicial” power on administrative boards-for the protection of the rights and interest of the public in general whose orders are-not to be overruled if supported by substantial evidence. For instance, boards, regulating common carriers, transportation,, telephone, rates, Barber Boards, Medical' Boards, Boards of Registration, Tax Boards, Division of Liquor Control, etc. City of Socorro v. Cook, 24 N.M. 202, 173 P. 682; Oliver v. Board of Trustees of Town of Alamogordo, 35 N.M. 477, 1 P.2d 116. See also Trico Electric Cooperative v. Ralston, 67 Ariz. 358, 196 P.2d 470; Floyd v. Department of Labor and Industry, 44 Wash.2d 560, 269 P.2d 563. Bixt nowhere does this power extend to a determination of rights and liabilities between individuals.

Section 1, Article 3, was considered by us in State v. Kelly, 27 N.M. 412, 202 P. 524, 530, 21 A.L.R. 156, wherein a clear distinction was noted between boards and commissions created to administer regulatory laws affecting the general public, and those laws relating to a determination of rights and liabilities between individuals. We quote:

“The rights and liabilities of a private individual are fixed by law and are to be determined by judicial inquiry * * *.

“The fact that an appeal is provided for from the decision of the board of loan commissioners to the district court does not alter the character of the proceedings. * * * ”

The principle there announced is sound today and should be reaffirmed. See also In re Opinion of Justices, 87 N.H. 492, 179 A. 344, 110 A.L.R. 819.

Relators cite many cases in which the courts have sustained statutes creating Workmen’s Compensation Commissions. Unquestionably, this may be done; however, those statutes are distinguishable from the act in question. Relators start as their leading case, Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598, where the Supreme Court sustained the Longshoremen’s and Harbor Workers’ Act, 33 U.S.C.A. § 901 et seq., as against the contention that there was an unlawful delegation of judicial power conferred on administrative officers. At first blush, it would seem the decision would settle this case, but not so. It suffices to say that the Federal' Constitution fixes no limitation on the creation of inferior courts as does Section 1,. Article 6, New Mexico Constitution. See also Laisne v. State Board of Optometry, 19 Cal.2d 831, 123 P.2d 457.

Section 1, Article 6 reads:

“The judicial power of the state shall be vested in the senate when sitting as a court of impeachment, a Supreme Court, district courts, probate courts, justices of the peace, and such courts inferior to the district courts as. may be established by law from time to time in any county or municipality of the state, including juvenile courts.” (Emphasis ours.)

The Small Claims Court, Ch. 137, L.1953, was created pursuant to this section.

We think the function to be performed by the commission is clearly a judicial one. The commission is called upon to decide questions of fact between private litigants and is empowered to render decisions that have the force and effect of judgments. Being of the opinion that the commission is clothed with judicial power, the next question to be answered is, is this expressly permitted by our constitution? A reexamination of Article 6, Section 1, supplies an instant answer. The framers of the New Mexico Constitution in this section limited the creation of courts to those named therein, and “such courts inferior to the district courts as may be established by law from time to time in any county or municipality of the state, including juvenile courts”. Here the legislature has attempted to create an executive agency, clothe it with judicial power, on a parity with district courts, and invest it with state-wide jurisdiction. This cannot be done.

Relators further rely on the following cases among a host of others. Greenarch v. Industrial Commission, 10 Ill.2d 450, 140 N.E.2d 665; Walters v. Blackledge, 220 Miss. 485, 71 So.2d 433; Arneson v. Robinson, 59 Idaho 223, 82 P.2d 249; Ontario Mining Co. v. Industrial Commission, 86 Colo. 206, 280 P. 483; Grant Coal Mining Co. v. Coleman, 204 Ind. 122, 179 N.E. 778; Borgnis v. Falk Co., 147 Wis. 327, 133 N.W. 209, 37 L.R.A.,N.S., 489; State of Washington v. Mountain Timber Co., 75 Wash. 581, 135 P. 645, L.R.A.1917D, 10; Mountain Timber Co. v. State of Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685; Evanhoff v. State Industrial Accident Commission, 78 Or. 503, 154 P. 106; Hunter v. Colfax Consol. Coal Co., 175 Iowa 245, 154 N.W. 1037, 157 N.W. 145, L.R.A. 1917D, 15; Utah Fuel Co. v. Industrial Commission, 57 Utah 246, 194 P. 122; Alabama's Freight Co. v. Hunt, 29 Ariz. 419, 242 P. 658.

In Greenarch v. Industrial Commission, supra, the action was against the state. In Walters v. Blackledge, supra, the decision was based on the right of review of both law and facts. As we view the case of Arneson v. Robinson, supra, it does not relate to matters involved here. In Ontario Mining Co. v. Industrial Commission, supra, delegation of judicial power was sustained on the ground that the legislature was authorized to create inferior courts with state-wide jurisdiction. Grant Coal Mining Co. v. Coleman, supra, points up the fact that an award without a judgment would be ineffective. The cases of Borgnis v. Falk Co.; State of Washington v. Mountain Timber Co.; Evanhoff v. State Industrial Accident Commission; Hunter v. Colfax Consol. Coal Co.; Utah Fuel Co. v. Industrial Commission; and Alabam’s Freight Co. v. Hunt, all supra, are cases involving the recovery from state insurance funds, or the acts are elective. Certainly, if the parties so ¿lect, they are bound thereby. It is just as certain that the state, in the exercise of its police power, may consent to be sued and provide the exclusive machinery therefor. Thus it is seen the acts reviewed are all unlike the 1957 Act, ours is compulsory and deals with individual rights. Other cases relied on are as readily distinguishable.

We repeat, the right to determine controversies between individual litigants stems from Section 1, Article 6 of New Mexico Constitution. This power rests alone with the courts. No case has been cited, and our search fails to disclose one having constitutional provisions comparable with Section 1, Article 6, which supports relators’ position. Possibly Maryland is the one exception, but there the commission cannot issue an enforceable judgment; the judgment must be that of the court to give it effect.

Relators say further that since the Workmen’s Compensation Act was unknown to the common law, rights and liabilities provided thereby may be determined finally by a commission. True, the Workmen’s Compensation Act is a creature of the statute, but we wonder just how far would relators have us go in this regard. There were numerous territorial statutes, too numerous to .mention, in effect at the time of the adoption of our constitution, which created rights and liabilities unknown to the common law. Would relators say that all such rights and liabilities might be determined by a commission ?

There is one further matter. Section 94 of the Act under attack expressly repealed Workmen’s Compensation laws existing prior to the 1957 Act and it would appear that the conclusion reached leaves the state without a Workmen’s Compensation law, but this is not so. Plainly, Section 94 intended to clear the way for the operation of the new Act, and since the new Act is found unconstitutional, the repealing clause falls with the act containing it. State v. Prince, 52 N.M. 15, 189 P.2d 993, 996. We said in that case, “an unconstitutional law being void is not inconsistent with any former law”, citing cases.

We wish to make the observation that within the last decade we have had a progressively increasing number of Workmen’s Compensation cases reaching the district courts and this court. We have seen the number of district judges in the state grow from 9 to 19. Much of the added work justifying this increase is due to the increasingly large load of compensation cases. Undoubtedly the legislature had in mind to give the courts relief, by the questioned Act. Suffices to say, that the work load on the courts has likewise increased similarly in other fields of litigation, and to sustain the Act as a matter of expediency, would justify the creation of boards and agencies to take over the entire field of the judicial department of our state government.

The validity of the Act is challenged on other grounds but since these raise constitutional questions, we will refrain from deciding them until a proper case is presented.

The alternative writ heretofore issued should be discharged and it is so ordered.

KIKER, J., and HENSLEY, Jr., D. J., concur. SADLER, J., and ARMIJO, D. J., dissent. LUJAN, C. J., and McGHEE, J., not participating.