Opinion
Nos. 18975 and 19105
Decided June 8, 1926.
Constitutional law — Workmen's compensation — Amended Section 35, Article II, Constitution — Prospective and not retroactive in operation — Rights and pending actions not affected by constitutional amendment — Action based upon failure to comply with lawful requirement — Section 1027, General Code.
ERROR to the Court of Appeals of Shelby county.
ERROR to the Court of Appeals of Hamilton county.
The case of Buckeye Churn Co. v. Roy E. Abbott, No. 18975, being a proceeding in error to reverse the Court of Appeals of Shelby county, and the case of George Kuhn v. Cincinnati Traction Company, No. 19105, being a proceeding in error to reverse the Court of Appeals of Hamilton county, were argued and submitted together and involve the same basic questions. They will therefore be considered together.
In the case of Buckeye Churn Co. v. Roy E. Abbott, defendant in error received an injury on July 25, 1923, on an unguarded ripsaw. On August 13, 1923, he filed his petition in the court of common pleas of Shelby county, claiming damages for such injury, basing his right to recover on a claimed violation of paragraph 7 of Section 1027, General Code. On May 6, 1924, a verdict was recovered in the sum of $4,500. Motion for new trial was overruled and judgment entered on the verdict. Error was prosecuted to the Court of Appeals, which affirmed the judgment. Error is now prosecuted to this court to reverse that judgment.
In the case of George Kuhn v. Cincinnati Traction Company, Kuhn received an injury on September 13, 1919. He brought suit against the traction company for damages, under the claim that it had failed to comply with paragraph 4 of Section 1027, General Code. The case came on for trial on December 9, 1921, and Kuhn was given a verdict and judgment in the sum of $15,000. Defendant traction company prosecuted error to the Court of Appeals. On May 27, 1922, that court reversed the court of common pleas and dismissed the case, upon the ground that the plaintiff had not shown a violation of a statutory duty on the part of the defendant, the traction company. Kuhn prosecuted error to this court, and on January 29, 1924, this court modified the judgment of the Court of Appeals and remanded the case to the court of common pleas for a new trial. Kuhn v. Cincinnati Traction Co., 109 Ohio St. 263, 142 N.E. 370. On July 1, 1924, Kuhn having died, his administratrix, Elizabeth Kuhn, became party plaintiff and prosecuted the action. In October, 1924, the second trial resulted in a verdict of $10,000 in favor of the administratrix. Error was prosecuted to the Court of Appeals, which court held void the judgment rendered in favor of the plaintiff in error, the journal entry reciting:
"On consideration whereof the court finds that by reason of the amendment to and repeal of original Section 35, Article II of the Constitution of the State of Ohio at the election on November 5, 1923, effective January 1, 1924, the right of defendant in error to maintain the action in the common pleas court became abrogated and that after January 1, 1924, the court of common pleas was without power or jurisdiction to enter the judgment to which error is prosecuted to this court herein and that there is error apparent upon the records and proceedings in said court to the prejudice of plaintiff in error and that substantial justice has not been done plaintiff in error.
"It is therefore considered by this court that the judgment rendered by the court below be and the same is reversed and held for naught.
"And the court further proceeding to render such judgment as said court of common pleas ought to have rendered find in favor of plaintiff in error, that defendant in error, plaintiff below, had no right to maintain the action below against defendant below for the reasons above stated."
Error is now prosecuted to this court to reverse this judgment.
Messrs. Wicoff Emmons, for The Buckeye Churn Company, plaintiff in error.
Mr. Harry K. Forsyth, for Roy E. Abbott, defendant in error.
Messrs. Roettinger Street, for George Kuhn, plaintiff in error.
Messrs. Freiberg, Avery Simmonds, for The Cincinnati Traction Company, defendant in error.
Messrs. Fillius Fillius, and Mr. Louis H. Winch, amici curiae.
The paramount question in both of these cases is whether Section 35, Article II, of the Ohio Constitution, as amended November, 1923, effective January 1, 1924, was retroactive in effect, or whether its operation was prospective only. Other questions presented by the record have heretofore been passed upon by this court. See Kuhn v. Cincinnati Traction Co., 109 Ohio St. 263, 142 N.E. 370, and authorities therein cited.
The court is of opinion that the amendment shows no language from which its retroactive character can be established, and unless there is language used in such amendment which discloses, either by terms or clear implication, that the same is retrospective, it will be held to be prospective in operation and that Kuhn's rights, or those of his administratrix, were not affected thereby. As was said by Fuller, C.J., in Shreveport v. Cole, 129 U.S. 36, 9 S.Ct., 210, 32 L.Ed., 589:
"Constitutions as well as statutes are construed to operate prospectively only, unless, on the face of the instrument or enactment, the contrary intention is manifest beyond reasonable question."
The following cases sustain this position. McCarthy v. City of Tucson, 26 Ariz. 311, 225 P. 329; Willcox v. Edwards, 162 Cal. 455, 123 P. 276; Worswick Street Pav. Co. v. Ind. Acc. Comm., 181 Cal. 550, 185 P. 953; Strickler v. City of Colorado Springs, 16 Colo. 61, 26 P. 313, 25 Am. St. Rep., 245; Conyers v. Comm'rs. of Roads and Revenues, 116 Ga. 101, 42 S.E. 419; State v. Barbee, 3 Ind. 258; State v. Thompson, 2 Kan. 432; Pecot v. Police Jury, 41 La. Ann., 706, 6 So. 677; City of Lansing v. Michigan Power Co., 183 Mich. 400, 150 N.W. 250; Ex parte Jones, 112 Miss. 27, 72 So. 845; State ex rel. Scott v. Dirckx, 211 Mo., 568, 111 S.W. 1; Town of Cherry Creek v. Becker, 123 N.Y. 161, 25 N.E. 369; Darling v. Miles, 57 Or. 593, 111 P. 702, 112 P. 1084; Kirby v. W. U. Tel Co., 4 S.D. 105, 55 N.W. 759, 30 L.R.A., 612, 46 Am. St. Rep., 765; Prescott v. Duncan, 126 Tenn. 106, 148 S.W. 229; Arey v. Lindsey, 103 Va. 250, 48 S.E. 889; State ex rel. Mathews v. Houndersheldt, 151 Minn. 167, 186 N.W. 234; State ex rel. Pardee v. Pattison, Governor, 73 Ohio St. 305, 327, 76 N.E. 946; Cincinnati, H. D. Rd. Co. v. Hedges, 63 Ohio St. 339, 341, 58 N.E. 804.
We do not find that the record contains prejudicial error. Hence our conclusion is that the judgment of the Court of Appeals must be reversed and that of the common pleas affirmed.
In the case of Buckeye Churn Co. v. Abbott the same basic question is involved, and there is no necessity for further discussion, as what has already been said in the case of Kuhn, Admx., v. Cincinnati Traction Company is applicable to the case of Buckeye Churn Co. v. Abbott. It appearing that the rights of the defendant in error became fixed at a date prior to the effective date of the constitutional amendment, he is not affected thereby, and the Court of Appeals, in so finding, was right in its conclusion. There being no prejudicial error on this or any other grounds shown in the record, the judgment is therefore affirmed.
Judgment affirmed in cause No. 18975. Judgment reversed in cause No. 19105.
MARSHALL, C.J., JONES, MATTHIAS, DAY, ALLEN, KINKADE and ROBINSON, JJ., concur.