Moweaqua Coal Corp. v. Industrial Commission

This cause is here on writ of error to review the judgment of the circuit court of Shelby county setting aside an award of the Industrial Commission and entering an award upon the record. The facts are not disputed. The only question presented is as to the proper amount to be awarded under the Workmen's Compensation act.

George Ondes on December 24, 1932, while in the course of his employment in defendant in error's coal mine, was killed by an explosion. He left him surviving a widow and children, two of whom were under the age of sixteen years at the time of his death. On the application of his widow for compensation the arbitrator awarded as such compensation $4800, payable at the rate of $12 per week for 400 weeks. This award was confirmed by the Industrial Commission. Oncertiorari the circuit court set aside the award and awarded the sum of $4040, payable at $12 per week for 336 2/3 weeks. The earnings of Ondes during the year next preceding his death were $1010. Plaintiff in error contends that under sub-paragraph (h)-3 of section 7 of the Workmen's Compensation act she is entitled to $4800.

Section 7 of the act, so far as necessary to be considered here, is as follows:

"Sec. 7. The amount of compensation which shall be paid for an injury to the employee resulting in death shall be:

"(a) If the employee leaves any widow, child or children whom he was under legal obligation to support at the time of his injury, a sum equal to four times the average annual earnings of the employee, but not less in any event than two thousand five hundred dollars and not more in any event than four thousand dollars. * * *

"(h) 1. Whenever in paragraph (a) of this section, a minimum of two thousand five hundred dollars is provided, such minimum shall be increased in the following cases to the following amounts:

"Three thousand dollars in case of one child under the age of sixteen years at the time of the death of the employee.

"Three thousand one hundred dollars in case of two children under the age of sixteen years at the time of the death of the employee.

"Three thousand two hundred dollars in case of three or more children under the age of sixteen years at the time of the death of the employee.

"2. Whenever four times the average annual earnings of the deceased employee as provided in paragraph (a) of this section amounts to more than two thousand five hundred dollars and to less than four thousand dollars, the amount so payable under said paragraph shall be increased as follows:

"In case such employee left surviving him one child under the age of sixteen years the amount so payable shall be increased three hundred fifty dollars.

"In case such employee left surviving him two children under the age of sixteen years the amount so payable shall be increased four hundred fifty dollars.

"In case such employee left surviving him three or more children under the age of sixteen years the amount so payable shall be increased six hundred dollars.

"3. Whenever in paragraph (a) of this section a maximum of four thousand dollars is provided, such maximum shall be increased in the following cases to the following amounts:

"Four thousand four hundred fifty dollars in case of one child under the age of sixteen years at the time of the death of the employee.

"Four thousand eight hundred dollars in case of two children under the age of sixteen years at the time of the death of the employee.

"Five thousand five hundred dollars in case of three or more children under the age of sixteen years at the time of the death of the employee." Cahill's Stat. 1931, chap. 48, sec. 207, pars. (a) and (h), pp. 1406, 1407.

Sub-paragraphs 1 and 3 of paragraph (h) of section 7 were added to the act by an amendment of July 1, 1919, as (h)-1 and (h)-2. (Laws of 1919, p. 541.) Sub-paragraph 2 of paragraph (h) was added to the act by amendment of July 2, 1927. (Laws of 1927, p. 502.) By this amendment original sub-paragraphs (h)-1 and (h)-2 were re-enacted except as to maximum and minimum amounts, and (h)-2 became (h)-3. In 1931 sub-paragraphs (h)-1 and (h)-3 were again amended by increasing the maximum and minimum but without further change. (Laws of 1931, pp. 580, 581.) It is conceded by counsel on both sides that paragraph (a) of section 7 is modified by sub-paragraphs (h)-1, (h)-2 and (h)-3 of that section.

Prior to the amendment of 1919 the Workmen's Compensation act made no provision for increase in awards in death cases because of children under the age of sixteen years. Sub-paragraphs (h)-1 and (h)-3 as enacted in 1919 and as re-enacted since, provide only for increasing the minimum and maximum, respectively, of awards, over the minimum and maximum fixed by paragraph (a) of section 7. Sub-paragraph (h)-2 as enacted in 1927 and as amended since, provides a specific amount of compensation in the cases therein fixed in addition to "the amount so payable" derived from computing four times the average annual income. Sub-paragraphs (h)-1 and (h)-3 have at no time contained a provision for the addition of any specific amount to the award provided in paragraph (a), but have, and have had, to do only with an increase of "such minimum" and "such maximum." Before the addition of sub-paragraph (h)-2 in 1927 there was nowhere in section 7 a provision for the addition of any specified sum to the award as determined under paragraph (a) of section 7. While sub-paragraph (h)-2 was amended in 1929 (Laws of 1929, p. 446,) by increasing the amount to be added to the award and by adding a clause, it in no way deals with or changes the maximum or minimum fixed in paragraph (a) but has at all times dealt only with specific amounts to be added to a sum four times the average annual earnings of the deceased employee where such sum falls between the minimum and maximum prescribed in paragraph (a). It is thus clear that the subject matter of sub-paragraph (h)-2 is not the same as that dealt with in sub-paragraphs (h)-1 and (h)-3.

Plaintiff in error contends that whenever four times the average earnings of a deceased employee on account of whose injury and death a liability is incurred amounts to or exceeds the maximum of $4000 stated in paragraph (a), the award provided by sub-paragraph (h)-3 is $4800 if such employee left a widow and two children under the age of sixteen years. Defendant in error on the other hand contends that the award provided by sub-paragraph (h)-3 under such circumstances is four times the average annual earnings but in no event more than $4800. Its counsel argue that the word "maximum" as used in sub-paragraph (h)-3 must be given its ordinary meaning, which, they say, is the "highest amount obtainable." Plaintiff in error's counsel argue that while the word "maximum" means the highest amount obtainable, it is to be construed here as meaning the highest amount obtainable where there are no children under sixteen years of age.

It is a long recognized and frequently announced canon of construction that unambiguous words in a statute are to be construed in accordance with their ordinary use and meaning, or when they have a well-settled meaning through judicial interpretation such meaning is to be adopted when those Words are used in a statute. (Trustees of Schools v. Berryman,325 Ill. 72; In re Manaca, 146 Mich. 697, 110. N.W. 75; Poolman v.Langdon, 94 Wn. 448, 162 P. 578.) As was said by this court in Murrell v. Industrial Com. 291 Ill. 334: "The words of a statute will be construed in their ordinary sense and with the meaning commonly attributed to them under such construction unless such construction will defeat the manifest intention of the legislature. When the words have a well-settled meaning through judicial interpretation, they must be understood, when used in a statute, to have that meaning unless a different meaning is unmistakably indicated." So inPeople v. Patten, 338 Ill. 385, it was said: "The intention of the legislature is manifested by, and must be ascertained from, what it has said in the act construed, and not from something the court might surmise the legislature might have intended to say but which it for some reason failed to say." When the meaning of the language of a statute is plain, courts are not privileged to attribute to it a different construction though they may be of the opinion that the language was unwise or seriously impairs the act as a whole. (People v. Beekman Co.347 Ill. 92; Downs v. Curry, 296 id. 277.) It is likewise a rule of construction that when words appear more than once in a statute it will be presumed that the General Assembly intended to attribute to them the same meaning throughout, unless there is something to show that a different meaning was intended. (Board of Education v. Morgan, 316 Ill. 143.) It is also the rule that a primary purpose in construing a statute is to ascertain the intention of the General Assembly, and in so doing it is necessary and proper to consider the purpose of the law and the object to be accomplished. Where absurd consequences result from a particular construction such construction will be avoided if the statute will reasonably permit of a different construction. (Patterson Pie Co. v.Industrial Com. 335 Ill. 476; People v. Brundage, 296 id. 197;City of Chicago v. Mayer, 290 id. 142.) Though an inconsistency may result, courts cannot, where there is no ambiguity in the language used, construe the statute as having a meaning different from that plainly to be gathered from the words used.People v. Shader, 326 Ill. 145; People v. Beekman Co. supra;Downs v. Curry, supra.

There is, so far as we are advised, neither difference in nor shades of meaning given by lexicographers and the courts to the word "maximum." It is universally defined to mean the highest or greatest amount, quality, value or degree. Webster's New Int. Dict.; Century Dict. 1913 ed.; 6 Oxford Dict. 1908, p. 254; Funk Wagnalls New Standard Dict.; Trustees of Schools v.Berryman, supra; In re Manaca, supra; Poolman v. Langdon,supra.

It will be observed that by sub-paragraph (h)-1 "such minimum shall be increased in the following cases to the following amounts," and by sub-paragraph (h)-3, "such maximum shall be increased in the following cases to the following amounts." It seems clear that by the words "such minimum" and "such maximum" are meant only the minimum and maximum provided in paragraph (a) of section 7 based on a computation of four times the annual earnings of the employee. It must follow, therefore, that the greatest or highest award that can be made under sub-paragraph (h)-3 where there are two children under the age of sixteen years is $4800. In other words, that is the most that can be given by the application of the formula prescribed by paragraph (a) of section 7 as modified by sub-paragraph (h)-3. It also unescapably follows that to authorize an award of $4800 under these provisions the deceased employee leaving two children under the age of sixteen years must have had an average annual earning of $1200 or more. In other words, the thing increased by sub-paragraph (h)-3 is "such maximum" — that is, the maximum fixed by and in the manner prescribed in paragraph (a) of section 7. The effect of sub-paragraphs (h)-1 and (h)-3 is to cause paragraph (a) of section 7 to be read as though it contained the following words: The amount of compensation which shall be paid for an injury to an employee resulting in his death who leaves a widow and two children under sixteen years of age shall be a sum equal to four times the annual earnings of the employee, but not less in any event than $3100 and not more in any event than $4800. It is only by determining the meaning of the terms "such minimum" and "such maximum" that a true construction of section 7 as a whole may be reached. The minimum and maximum of paragraph (a) of section 7 are based solely on the formula of four times annual earnings. They apply to nothing else. No specific amount or amounts payable in any given case are there provided, but the award is to depend upon the facts, including not only the number of children under sixteen years of age but also the amount of average annual earnings.

Counsel in support of their contention that the award here should be $4800 argue that the existence of children under the age of sixteen years is the only reason for the increase in compensation; and this is true, but the language of the statute must be examined to determine what is increased, and whether by the act it is intended that an additional specified sum shall be added to the maximum or minimum in a given case where there are children under sixteen, or whether it is the maximum or the minimum under the formula prescribed for making the award which shall be increased. It seems too clear to admit of argument that under sub-paragraph (h)-3 the thing increased is the maximum, and while it may be said that an increase in the maximum would not have occurred but for the existence of children under sixteen years of age, yet the reason for the increase cannot be said to be a definition of what was increased, where the act, as here, specifically provides, because of the existence of such children, not a certain specified sum to be added to the award, as in sub-paragraph (h)-2, but an increase in the maximum that may be allowed. It will be observed that sub-paragraph (h)-3 does not prescribe that there shall be added to the award the sum of $450 or $800 or $1500, but increases "the maximum to the following amounts" — $4450, $4800 and $5500.

Counsel for plaintiff in error call attention to inconsistencies which they say will arise from the application of this construction when compared with the provisions of sub-paragraph (h)-2. They set out a case where the widow of an employee whose earnings were just below $1000 per year, so that four times such earnings is just below $4000, to-wit, $3999, would under sub-paragraph (h)-2 receive more compensation than the widow whose husband earned $1000 per year, or, as in this case, $1010. They point out that the award to the widow first referred to is by sub-paragraph (h)-2 increased $450, making the total award $4449, whereas in this case four times the annual earnings of Ondes amounts to $4040, and under defendant in error's contention his widow receives $4040, or $409 less than the widow of an employee whose annual income was under $1000. It may be also observed that if plaintiff in error's construction of sub-paragraph (h)-3 is the sound one and Ondes' widow is to receive $4800, she would under that construction receive $351 more than the widow first referred to in the comparison though there is less than $11 difference in the annual earnings in the two cases. The inconsistency arising between a case such as this and the supposed case is because of the provisions of sub-paragraph (h)-2, which, as we have seen, deal with a specific sum to be added rather than with the maximum or minimum. There is, and has been, in sub-paragraph (h)-2 nothing to indicate that the legislature intended a different construction to be placed on the words "such minimum" or "such maximum." On the contrary, the provisions of sub-paragraph (h)-2, as we have pointed out, increase "the amount so payable" by a specific sum "whenever four times the average annual earnings" falls between the minimum and maximum provided by the act. It may be further observed that we are here dealing with the construction of sub-paragraph (h)-3 and not (h)-2. The latter has no application here.

Counsel on both sides concede that the question here presented has never been squarely before this or any other court. Both sides, however, cite Patterson Pie Co. v.Industrial Com. supra, as supporting their reasoning. In that case the court held that the weekly compensation for an injury not resulting in death, where the employee has four children under sixteen years of age and makes $18 per week, should under sub-paragraph (j)-2 of section 8 be $14 per week notwithstanding sub-paragraph (j)-1 of section 8 provided that the payment should be sixty-five per cent of the weekly wage. It was held that sub-paragraph (j)-2 of section 8 raised the minimum of the weekly compensation in a case such as there under consideration to $14, and this though sixty-five per cent of the weekly wage did not amount to $14. The matter there under consideration was the minimum or the least amount that could be paid for injury not resulting in death, under the act as there construed. We are unable to see wherein that case is of aid in the case before us. Where there is doubt in the meaning of words used, recourse to other provisions of the statute is of assistance. There is no such doubt here. Considering all applicable provisions of the act, we are unable to find basis for counsel's contention that the award here should be fixed at $4800. Provisions other than those mentioned herein do not aid in clarifying the intention of the General Assembly on this matter.

Counsel for plaintiff in error say that while no cases have come to this court involving this question, it has been the practice of the Industrial Commission and lower courts to allow the full $4800 under facts such as appear here. It is not contended, of course, that such practice is binding on this court but it is urged as in the nature of contemporaneous construction, as we understand the argument. While this court is not advised by anything that appears in this record as to what such practice has been, Angerstein, in his work on Employer and the Workmen's Compensation act of Illinois, (sec. 191,) discusses the provisions of the act here under consideration, and, though he cites no cases to support it, arrives at the conclusion that the meaning of the act is to increase the maximum based on four times the average annual earnings and does not provide an increase in any specific amount. He there states that the practice of the commission is to apply such a construction. In his supplement of 1934 (page 37) he says that the Industrial Commission has recently given those provisions a different construction. The intention of the General Assembly concerning these paragraphs of the act must be determined by the application of settled rules of construction. Courts are not privileged to change the plain wording of an act to make it more workable or to bring its meaning within what the court thinks is wise. Whether an act is unwise or causes hardship is not a judicial question but a legislative one. Courts may not legislate. (City of Decatur v. German, 310 Ill. 591.) In its various amendments to this act the General Assembly has not provided that payment of a specified additional sum for the support of dependent children shall be made where four times the annual earnings of the deceased employee equals or exceeds $4000, but has increased the maximum of what may be awarded in such a case based on annual earnings. We therefore cannot escape the conclusion that the construction placed upon this act by the circuit court was correct and that the award provided by the act is four times the average annual earnings of Ondes.

The judgment of the circuit court is therefore affirmed.

Judgment affirmed.