Opinion
No. 25053
Decided June 26, 1935.
Workmen's compensation — No distinction between rights of Americans and aliens — Ten-year statute of limitations not tolled — Section 1465-86, General Code — Greek consulate not notified, by Industrial Commission, of Greek employee's death — Mandamus — Clear right to writ to be established.
1. No distinction can be made between the rights of Americans and aliens under the Workmen's Compensation Act. Alienage does not impair one's rights nor does it establish superior rights. Failure on the part of the Industrial Commission to notify the Greek Consulate of the death of an employee, a Greek National, does not prevent the running of the statute of limitations as prescribed in Section 1465-86, General Code.
2. Mandamus is an extraordinary writ and will not lie unless the claimant can establish a clear legal right thereto.
IN MANDAMUS.
This is an original action in mandamus seeking to compel the Industrial Commission of Ohio to assume jurisdiction over the claim of relator, Eumorphia Papadopoulos, for death benefits arising out of the death of her father which occurred in the year 1917 during the course of his employment while in the service of the Central Alloy Steel Corporation of Massillon, Ohio, a contributor to the State Insurance Fund.
John Papadopoulos, alias John Kane, a Greek citizen, was killed in the course of his employment on June 22, 1917. The following day his employer, the Central Alloy Steel Corporation, notified the Industrial Commission of Ohio of his death.
Relator alleges in her petition that she is the daughter of the decedent; that at the time of her father's death she was four years of age and residing in Greece; that during the time that her father was in America he contributed regularly toward the support of herself and mother, the wife of decedent.
In 1917 relator and her mother were exiled into Pontos, where the mother died, and the relator lived with relatives until 1930.
The identity of decedent as her father was not established until July 2, 1933, more than sixteen years following his death. Thereafter she made application to the Industrial Commission of Ohio for compensation for her father's death, and filed proof of her relationship and all other necessary facts.
It appears that in 1923 the Industrial Commission had ordered the case closed on the ground that there were no dependents, and on November 3, 1933, following the filing of relator's application, the commission made the following order: "As more than ten years have elapsed since this case was closed, and no application for death benefits was presented to the Commission for more than ten years after the date of death, hence, the Commission is without jurisdiction to further consider the matters in question."
Relator contends that the Industrial Commission at no time notified the Greek Consulate in the United States of the death of said decedent, a Greek National, and that such failure constituted a violation of the Consular Convention between the United States and Greece which was entered into on December 2, 1902; that by reason of the commission's refusal to take jurisdiction over relator's application for death benefits, relator, as the minor child of said decedent, was thereby wrongfully, unlawfully and arbitrarily denied her rights, contrary to the provisions contained in Section 1465-82 of the General Code, and prays that a writ of mandamus issue commanding the Industrial Commission to take jurisdiction over the application of relator.
Mr. James I. Boulger and Mr. Robert S. Hayes, for relator.
Mr. John W. Bricker, attorney general, and Mr. R.R. Zurmehly, for respondent.
Two questions are presented for our determination: (1) Whether the Industrial Commission of Ohio has authority to take jurisdiction over an application for death benefits filed more than ten years after the death of an employee, and (2) whether mandamus is the proper remedy.
Section 1465-86, General Code, provides:
"The powers and jurisdiction of the board over each case shall be continuing, and it may from time to time make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion may be justified. Provided, however, that no such modification or change or any finding or award in respect of any claim whether filed heretofore or hereafter shall be made with respect to disability, compensation, dependency or benefits, after ten years from the last payment theretofore made of compensation or benefits awarded on account of injury or death, or ten years after the injury in cases in which no compensation ever has been awarded. Provided further that nothing herein contained shall deprive the commission of its continuing jurisdiction as herein defined to determine the questions raised by any application for modification of award which shall have been filed with the commission after June 1, 1932, and prior to the expiration of such ten years but in respect to which no award shall have been granted or denied during such ten years.
"The commission may, by general rules, provide for the destruction of files of cases in which no further action may be taken."
It is clear that under the above quoted section of the General Code the Industrial Commission has no authority to take jurisdiction over relator's application or to make an award.
Whether the Industrial Commission had or had not notified the Greek Consulate of the death of the decedent is not material to the issues here presented. Notification is not by statute made a condition precedent to the commencement of the operation of the limitation imposed by the section of the General Code quoted above.
"Though a person may not discover his injury until too late to take advantage of the appropriate remedy yet this is said to be one of the occasional hardships necessarily incident to a law arbitrarily making legal remedies contingent on mere lapse of time." 17 Ruling Case Law, 832, Section 193.
"The fact that a person entitled to an action has no knowledge of his right to sue, or of the facts out of which his right arises, does not, as a general rule, prevent the running of the statute, or postpone the commencement of the period of limitation, until he discovers the facts or learns of his rights thereunder." 17 Ruling Case Law, 831, Section 193.
"The operation of the statute of limitations is not suspended or postponed * * * unless such an exception is a rule of the statute." 37 Corpus Juris, 986, Section 37. Courts can not engraft exceptions thereon.
No distinction can be made between the rights of Americans and aliens under the Workmen's Compensation Act. Alienage does not impair one's rights nor does it establish superior rights.
The rights claimed by relator are those emanating from statute and not from treaty. Where statutes are not inconsistent with, or in contravention of, treaty provision, the rights emanating therefrom will be governed thereby.
Is mandamus available? Mandamus is an extraordinary writ and will not lie unless the claimant can establish a clear legal right thereto. "Mandamus is a writ commanding a public board or official to perform an act which the law specially enjoins as a duty resulting from an office, trust or station, and will issue only when it is clearly shown that there is a plain dereliction of such duty." (Italics ours.) Paragraph one of the syllabus in State, ex rel. Van Harlingen, v. Board of Edn. of Mad River Twp., 104 Ohio St. 360, 136 N.E. 196.
No dereliction of duty on the part of the Industrial Commission is here shown.
Respondent was under the law wholly without jurisdiction to consider the application of relator and acted wholly within its authority in refusing to assume jurisdiction.
No ground exists in this case for the issuance of a writ of mandamus.
Writ denied.
WEYGANDT, C.J., STEPHENSON, WILLIAMS, JONES, MATTHIAS and ZIMMERMAN, JJ., concur.