noting the “constantly employed axiom” that “the legislature enacts with the Court's interpretational decisions in one hand as it writes and votes with the other”Summary of this case from Speicher v. Columbia Twp. Bd. of Trs.
Calendar No. 9, Docket No. 51,042.
Decided April 5, 1966.
Appeal from Workmen's Compensation Appeal Board. Submitted June 8, 1965. (Calendar No. 9, Docket No. 51,042.) Decided April 5, 1966.
Arthur Autio presented his claim for workmen's compensation benefits against Proksch Construction Company and Liberty Mutual Insurance Company for injuries to a hand. Benefits denied by appeal board. Plaintiff appeals. Reversed and remanded.
Wisti Jaaskelainen ( Sterling W. Schrock, of counsel), for plaintiff.
PA 1912 (1st Ex Sess), No 10, as amended (CL 1948 and CLS 1952, § 411.1 et seq., as amended (Stat Ann 1950 Rev § 17.141 et seq., as amended).
"The workmen's compensation law is a departure, by statute, from the common law, and its procedure provisions speak all intended upon the subject. Rights, remedies, and procedure thereunder are such and such only as the statute provides. If the statute is short of what it should contain in order to prevent injustice, the defects must be cured by future legislation and not by judicial pronouncement." Luyk v. Hertel (1928), 242 Mich. 445, 447.
The act provides for limitational periods within which claims must be brought and also provides that the running of such limitational periods shall be tolled until the employer, having timely notice of the employee's injury, files a report of the injury with the workmen's compensation department within a prescribed period. Ordinarily a claim for compensation must be made within six months after the occurrence of the injury, but in the event of physical or mental incapacity to make a claim, within six months after regaining capacity. A three-year limitational period is provided where the "actual injury, disability, or incapacity" develops more than six months after the injury of which the employer was given notice. Consistent with the principle enunciated in Luyk, supra, and the time limitations contained in the act, the Court has held that the general statute of limitations has no application to claims brought under the act. Bankers Trust Co. of Detroit v. Tatti (1932), 258 Mich. 357, and Jelusich v. Wisconsin Land Lumber Co. (1934), 267 Mich. 313, 319.
See, currently, CLS 1961, § 412.15, as amended by PA 1965, No 44 (Stat Ann 1965 Cum Supp § 17.165).
See, currently, CLS 1961, § 600.5801 et seq. (Stat Ann 1962 Rev § 27A.5801 et seq.).
Notwithstanding its nominal acknowledgment that the general statute of limitations is not applicable to workmen's compensation claims, this Court in Hajduk v. Revere Copper Brass, Inc. (1934), 268 Mich. 220, nevertheless imposed judicially, by analogy, a six-year limitational period upon such claims. In that case plaintiff employee lost the sight of his left eye in October, 1922, as the result of an industrial accident. The department found that plaintiff had given defendant employer timely notice of the injury, but the latter nonetheless had failed to file a report of compensable injury. In May, 1933, a year after his discharge by defendant, plaintiff filed a claim with the department of labor and industry and was awarded compensation for loss of his eye. Defendant argued that the claim was barred by the general statute of limitations.
The Court said (p 223):
"While the general statute of limitations has no application in the instant case because the department of labor and industry is not a court and a proceeding before it is not an action, yet we can conceive of no reason why there should not be a limit of time within which a proceeding for compensation should be commenced. That limit of time must be a reasonable one, which by analogy to the statute of limitations will be deemed to be six years. Cruse v. Chicago, R.I., P.R. Co., 138 Kan. 117 ( 23 P.2d 471)."
Earlier in its opinion the Court had noted the above cited provision of the act which, in fact, specified "a limit of time within which a proceeding for compensation should be commenced." That limit is referred to in the act as "the statute of limitations", a reference the Hajduk Court expressly found meant (p 223) "the limitation within the act and not the general statute of limitations". Moreover, the statute also expressly provided that that time limitation for claiming compensation "shall not run against the claim of the injured employee or his dependents, or in favor of either said employer or his insurer, until a report of said accident shall have been filed" with the department by the employer in all cases in which the employer has been given timely notice or has knowledge of the happening of the accident. Thus, the legislature not only provided for a time limitation within which a proceeding for compensation must be commenced, a time limitation recognized by the Court in Hajduk, but, also, it provided for the extension of such time limitation so long as an employer with timely notice or knowledge of the happening of the accident failed, neglected, or refused to report the accident to the department.
"Injury" was substituted for "accident" by PA 1943, No 245. See, currently, CLS 1961, § 412.15, as amended by PA 1965, No 44 (Stat Ann 1965 Cum Supp § 17.165).
Yet, the Court in Hajduk imposed upon compensation claims a limitational period in addition to that expressly provided by the act and made it absolute in the sense that the judicially imposed limitational period was not tolled by the employer's failure to file a report of the accident with the department or, apparently, for any other reason. The effect of what the Court did in Hajduk was to write into the act a limitation upon entitlement to compensation which the legislature, by its tolling provision, had manifested expressly an intention not to impose. If what the Court did it did "to prevent injustice", a purpose the language of the Court's opinion seems clearly to indicate it had in mind, the Court must have forgotten what it had written earlier in Luyk v. Hertel, supra, about the workmen's compensation law and the respective roles of the legislature and the judiciary in connection therewith.
A majority of the Wisconsin supreme court imposed a similar limitation judicially upon the Wisconsin compensation law in Federal Rubber Company v. Industrial Commission of Wisconsin (1924), 185 Wis. 299 ( 201 N.W. 261, 40 ALR 491). The persuasive dissent in that case (p 303) is applicable to Hajduk:
"The old law of master and servant was scrapped as social and economic obsolescence and was supplanted by a complete and comprehensive scheme for the compensation of industrial accidents. It has not been customary to resort to the old law of master and servant for analogies to aid in the construction of the workmen's compensation act because that act is based upon principles entirely incompatible with the former law. The framers of the workmen's compensation act expressly provided for two limitations. The logical inference is that they did not intend to provide any further limitations.
"I cannot but regard the decision in this case as a judicial invasion of the legislative field, and I must dissent."
If the act construed in Hajduk had been ambiguous or if it had omitted reference to a limitational period within which claims for compensation were to be filed, the result reached in Hajduk might have been justifiable in the sense that it would have been an appropriate exercise of the judicial power to construe statutory provisions, but in the face of such clear expression of legislative purpose, what the Court did in Hajduk was completely unjustified. The Court should have approached its task then as it did 16 years earlier when it construed the workmen's compensation law to deny the claim of an injured workman in Cooke v. Holland Furnace Co. (1918), 200 Mich. 192. In the Cooke Case the Court said (pp 195, 196):
"We must approach this question, having full regard for the fact that under the division of powers found in the Constitution, our duty is not to enact but to expound the law, not to legislate but to construe legislation; to apply the law as we find it, to maintain its integrity as it has been written by a co-ordinate branch of the State government. If the law as written works hardships in a special class of cases the remedy lies with the branch of the government charged with the duty of enacting laws. If one does not protect himself and his rights under the law as written it is his misfortune, and this Court should not, by judicial legislation, for the purpose of relieving that misfortune, write into the statute a provision that the legislature has not seen fit to enact."
The Hajduk Court erred not only in its invasion of the legislature's domain, but it erred also by citing as authority for its imposition, by analogy to the general statute of limitations, of a six-year limitational period within which claims for compensation must be filed, the case of Cruse v. Chicago, R.I. P.R. Co. (1933), 138 Kan. 117 ( 23 P.2d 471). That case is not authority for what our Court did in Hajduk. The Kansas workmen's compensation law referred to a limitational period within which proceedings on a claim had to be begun but, unlike our own workmen's compensation act, the Kansas law neglected to define that period. Thus, there was an ambiguity in the Kansas law which it was appropriate for the Kansas supreme court to clarify by judicial construction and, under those circumstances, there was justification for the Kansas court's reference to Kansas' general statute of limitations for the purpose of defining that period. No such justification, however, existed for this Court's action in Hajduk, the legislature having provided expressly not only for the limitational period but, also, for its tolling.
Unfortunately, Hajduk has been followed subsequently in a number of cases. While it is impossible to tell from the Court's opinion in Hajduk whether the Court then intended its judicially imposed limitational period to be applied to bar all compensation claims made after expiration of six years following the injury or disablement or only to bar compensation benefits which, had earlier claim been made, would have been payable prior to the six-year period preceding filing of the claim, Hajduk has been applied to cases presenting both situations. See, for example, Henry v. Ford Motor Co. (1935), 273 Mich. 323, where the Court denied any compensation to plaintiff, who was injured in May, 1927, with resultant total disability in May, 1928, plaintiff not having filed a claim for compensation until May, 1934; and Sweet v. Eddy Paper Corp. (1942), 303 Mich. 492, where the Court modified the department's award of benefits on a petition for further compensation by limiting the award to cover a period beginning no earlier than six years prior to the date of filing of the petition.
See, also, the following cases which, directly or indirectly, rely upon or construe Hajduk as authority either for barring all benefits because claim therefor was filed after six years following injury or disability or for barring only those benefits which otherwise would have been payable more than six years before the claim was filed: Ardelian v. Ford Motor Co. (1935), 272 Mich. 117; Stone v. Ford Motor Co. (1935), 272 Mich. 139; Aiello v. Ford Motor Co. (1935), 273 Mich. 15; Oado v. Ford Motor Co. (1935), 273 Mich. 510; Tinney v. City of Grand Rapids (1936), 274 Mich. 364; Wright v. Mitchell Brothers Co. (1936), 275 Mich. 591; Hurst v. Ford Motor Co. (1936), 276 Mich. 405; Napolion v. National Concrete Metal Forms Corp. (1937), 279 Mich. 668; Henderson v. Consumers Power Co. (1942), 301 Mich. 564; Broadnax v. Ford Motor Co. (1944), 308 Mich. 305; Scalzo v. Family Creamery Co. (1944), 308 Mich. 587; Tarnow v. Railway Express Agency (1951), 331 Mich. 558; Babcock v. General Motors Corporation (1954), 340 Mich. 58.
It has been suggested that, because the legislature has reenacted the limitational section of the act after Hajduk was decided, without specifically disavowing the judicially imposed six-year limitational period, see PA 1943, No 245, and PA 1954, No 175, we are now precluded by the doctrine of legislative acquiescence from correcting the errors made by this Court in Hajduk. My views concerning the unsoundness of this doctrine were expressed in Halfacre v. Paragon Bridge Steel Co. (1962), 368 Mich. 366, and I here reaffirm those views finding them applicable to the errors committed in Hajduk. I would overrule Hajduk and those cases, above cited, which have relied upon Hajduk insofar as they stand for the proposition that compensation claims not otherwise barred by the provisions of our workmen's compensation law are barred if not filed within six years of the date of injury or disablement or for the proposition that benefits which otherwise would have been payable had earlier claim been made are barred to the extent the benefits are for periods of disablement prior to six years from the date claim therefor was filed.
It should be noted that as early as 1935, the year following the Hajduk decision, at least one justice of this Court argued that if an employer with timely notice of an employee's injury failed to make report thereof, no limitational periods ran against the claim of the employee. See the separate opinions of Mr. Justice POTTER in Ardelian v. Ford Motor Co. (1935), 272 Mich. 117, and Oado v. Ford Motor Co. (1935), 273 Mich. 510. As late as 1959 this Court suggested, perhaps too subtly, that the judicially imposed six-year limitational period with regard to compensation claims was of questionable soundness. See Johnson v. Cleveland-Cliffs Iron Company (1959), 356 Mich. 387. There defendant argued, inter alia, that because plaintiff's injury-induced amputation occurred in July, 1951, while claim for compensation for specific loss was not made until December, 1957, the delay of more than six years barred plaintiff's claim. The appeal board did not pass upon the question (although it was raised before it), nor did this Court, but the Court significantly commented (p 389):
"To this defense plaintiff says a number of answers suggest themselves. One of them may possess merit. It is that, in plaintiff's words, `no report sufficient under the statute to start limitations was filed.' Plaintiff relies on the provision of the above-mentioned section of the statute that the limitation shall not start to run against the employee's claim until the employer has filed a report of the injury with the commission as required by statute."
If the Court had thought that Hajduk and its successors were correct, it could have seen no merit at all in plaintiff's argument, and would have affirmed the appeal board's denial of benefits on the ground that claim for compensation had been filed too late. Instead, the Court remanded the case for further consideration by the appeal board.
But it is not enough in this case simply to refer to my previously expressed views of the unsoundness of the doctrine of legislative acquiescence. Mr. Justice BLACK recently has embarked upon a course of selective invocation of the doctrine in its most extreme form. He does so yet again in this case of Autio. The doctrine, a pernicious evil designed to relieve a court of its duty of self-correction, has been examined and rejected by this Court before, but its current resurrection demands we perform the task once more lest our silence be construed as signifying its unanswerable validity. In the process, we shall compare Justice BLACK'S present writing with that which he signed without apparent reservation in Van Dorpel v. Haven-Busch Company (1957), 350 Mich. 135, and which he reindorsed in 1960 in Wilson v. Doehler-Jarvis Division of National Lead Company, 358 Mich. 510, 514.
Justice BLACK now shrinks from what he characterizes as "retroactively effective overrulements of long standing, steadily accepted and unanimously mature interpretations and applications [of statutes]", but in the Van Dorpel Case he shared the duty of forthright, and retroactively effective, overrulement of prior judicial errors and joined, as well, in the forceful rejection of the doctrine of "legislative acquiescence" as a bar thereto. In that case the Court had before it for consideration sections 9 and 10 of part 2 of the workmen's compensation act. Appellant company claimed that the appeal board had wrongly applied section 10 in that, after payment of compensation for the period allowed under section 10 for specific loss of fingers and a leg, the board awarded further compensation for total disability under section 9. This Court referred to no less than five unanimous decisions which supported appellant's contention that the latter award was erroneous, the decisions ranging in date from 1914 to 1948.
CL 1948, §§ 412.9, 412.10 (Stat Ann 1947 Cum Supp §§ 17.159, 17.160). See, currently, CLS 1961, §§ 412.9, 412.10, as amended by PA 1965, No 44 (Stat Ann 1965 Cum Supp §§ 17.159, 17.160).
The Court focused its attention upon one decision which it regarded as particularly in point, Curtis v. Hayes Wheel Company (1920), 211 Mich. 260. Here are portions of the opinion subscribed by Justice BLACK:
"In his conclusion the appellant argues forcefully and at length that legislative silence and inaction for 37 years after the Curtis Case amounts to a tacit recognition of its soundness by which we must irrevocably be bound. Now this beguiling doctrine of legislative assent by silence possesses a certain undeniable logic and charm. Nor are we oblivious to the flattery implicit therein; double flattery, in fact; flattery both to the profound learning and wisdom of the particular supreme court which has spoken, and flattery to a presumably alert and eagerly responsive State legislature. One pictures the legislators of our various States periodically clamoring and elbowing each other in their zeal to get at the pearls of wisdom embalmed in the latest decisions and advance sheets of their respective supreme courts — and thenceforth indicating their unbounded approval by a vast and permanent silence.
"Yet there are several dark shadows in this picture. For one, it suggests a legislative passion for reading and heeding the decisions of our supreme courts which we suspect may be scarcely borne out by the facts. For another, pushed too far such a doctrine suggests the interesting proposition that it is the legislatures which have now become the ultimate courts of last resort in our various States; that if they delay long enough to correct our errors those errors thus become both respectable and immutably frozen; and, finally, the larger and more dismal corollary that if enough people persist long enough in ignoring an injustice it thereby becomes just. We reject as both un-Christian and legally unsound the hopeless doctrine that this Court is shackled and helpless to redeem itself from its own original sin, however or by whomever long condoned." 350 Mich. 135, 145, 146.
It is interesting to note that sections 9 and 10 had been jointly or severally the subject of legislative action nine times in the interval between the Curtis and Van Dorpel decisions, and as the Court observed in Van Dorpel (p 137), "Despite occasional amendments to both sections, the basic design of each has remained substantially unchanged." Surely such evidence of "legislative acquiescence" in five unanimous interpretive decisions should have bound Justice BLACK in Van Dorpel, as he alleged himself to be bound in the more recent case of Mosier v. Carney (1965), 376 Mich. 532, 589-591, and now alleges himself to be bound in this case of Autio, although, with persistent inconsistency, he is willing to "legislate" by overruling "unanimously mature" Hajduk and its progeny, but only prospectively.
PA 1921, No 173; PA 1927, No 63; PA 1943, No 245; PA 1949, No 238; PA 1952, No 263; PA 1953, No 198; PA 1954, No 175; PA 1955, No 250; PA 1956, No 195.
Justice BLACK also now accuses this Court thusly:
"Even a legislature could not, consistent with constitutional guaranties, do what the Court has continued to do in 1965, and does now in 1966, that is, destroy defensive rights of substance which, by law, had become vested long before the date of the legislative attempt."
Compare the above with what Justice BLACK embraced in Van Dorpel (pp 146-148):
"Courts throughout the land have long split over this doctrine of legislative acquiescence by silence. The usual arguments for recognizing it are that it gives stability and sureness to the law; that `rights' thus acquired can thus only be disturbed at regular and predictable intervals by but one branch of the government, the legislative; and, finally, that to disregard the doctrine amounts to judicial legislating. Now we recognize that a court should not lightly overrule an interpretation of a statute that has been the law for 37 years, but we also see little justice or utility in continuing to give stability or sureness to an unfortunate rule of law; nor do we understand that employers or their insurance carriers have gained any vested `rights' in the interpretation of this statute; nor do we think that the reinterpretation of a statute in the light of long experience with an unfortunate interpretation constitutes judicial legislating. (Emphasis added.)
"This case involves an interpretation of a statute which is silent on the precise issue involved. This Court 37 years ago decided what it thought the correct interpretation should be. We happen to disagree with that old interpretation and wish to make a new interpretation, for the reasons herein stated. It is suggested that we should not do this because, whether the original interpretation was right or wrong, inaction by the legislature since it was handed down constitutes a sort of informal post-enactment declaration of legislative assent thereto possessing the binding effect of law; and that any new and variant interpretation here and now would on that account constitute `judicial legislation.'
"To our mind the doctrine implicit in this kind of reasoning constitutes a surrender of the judicial function to a legislative body. In the final analysis the objection may fairly be stated thus: Our Court interprets a statute; whether right or wrong our decision henceforth becomes judicially immutable and we are powerless to change it; there is only 1 way it can be changed; if we are wrong we must wait for the legislature to tell us so; if by its long silence and inaction the legislature does not speak out and tell us we are wrong then it has perforce by the same token told us we are right; in any case this Court is forever fettered and powerless to reinterpret the statute in question. We have instead delegated that function to the legislature. This curious doctrine can be boiled down even more: right or wrong in the Curtis Case, we are helpless to change it.
"Such a doctrine is to squarely place the legislature in the position of a super supreme court. We also consider it an abdication of judicial responsibility. We reject such a doctrine flatly along with the sort of mechanistic thinking that can arrive at such an ironic impasse. This doctrine has irreverently been called the `one shot' theory of legislative interpretation. We ourselves brand it a Rip-Van-Winkle doctrine of judicial stagnation and inertia. We happen strongly to disagree with it and in this we are not alone."
Justice BLACK currently inveighs against "judicial legislation", yet in Van Dorpel (p 153) he agreed completely with the following, which describes the situation now facing us with regard to the "rightful damnation of the Court's 32-year-old error [in Hajduk]":
"A little sense of proportion and realism in this area might not be amiss. The plain fact is that courts of last resort everywhere constantly engage in a form of `judicial legislating' when they are confronted — as they so often are — by statutory or other provisions of ambiguous or uncertain meaning. Such judicial interpretations often in effect add words to a statute. Must we act at our peril that we might possibly we wrong? Some judges solemnly declare that we must. Yet far from being the doctrine of humility and keeping our places that they would have it appear, is not this essentially to preach the gospel of judicial infallibility? Scarcely a term of this Court passes that all of us are not obliged to interpret unclear statutes. Occasionally we must reinterpret them. It is one of our primary functions; that's what we are here for. It is only when a judge ignores or flies in the face of a positive and unambiguous statutory enactment that he may justly be accused of judicial legislating, in the bad sense. That is not our case."
But, we might add, it is what the judges did do in Hajduk.
But our review of Justice BLACK'S views need not be confined to Van Dorpel. Consider Linski v. Employment Security Commission (1959), 358 Mich. 239. Earlier, in 1955, in Cassar v. Employment Security Commission, 343 Mich. 380, seven Justices of this Court, as against one dissenter, had interpreted section 29 of the employment security act, dealing with disqualification for unemployment compensation benefits, as barring from benefits employees who were discharged after concertedly ceasing work in violation of a labor contract. In Linski, a majority of five, including Justice BLACK, voted to overrule Cassar and substitute a new interpretation of the statutory language for the one adopted therein. I note that in his present opinion Justice BLACK emphasizes the unanimity of erroneous decisions in which the legislature allegedly has acquiesced, as one of the reasons giving rise to his asserted abhorrence from overruling them. See, also, his separate opinion in Halfacre v. Paragon Bridge Steel Company (1962), 368 Mich. 366, 387. It would seem, however, that when, in the face of a vigorous dissent to a court's interpretation of a statute, the legislature takes no action to make the statute mean what the dissenter said it meant, logically, it should follow that the legislature is applauding and approving the interpretation given to the statutory language by the majority. Viewed at all realistically, it is much more likely that a decision to which there is a dissent would come to legislative attention than would one which is pacifically unanimous. Thus, a dissenting opinion in a case involving an erroneous statutory interpretation should reinforce one's inhibition against its later overrulement which arises from the doctrine of "legislative acquiescence", for the legislature has had the error pointed out to it and nonetheless has declined to act. To those not purblindly devoted to that doctrine, however, the dissent marks out judicial error, hopefully, for future judicial correction.
CL 1948, § 421.29, as amended by PA 1951, No 251 (Stat Ann 1953 Cum Supp § 17.531). See, currently, CLS 1961, § 421.29, as amended by PA 1965, No 281 (Stat Ann 1965 Cum Supp § 17.531).
Applying the doctrine of "legislative acquiescence" logically and realistically to the cited decisions of Cassar and Linski, it should have followed that the legislature had approved the interpretation put upon section 29. Cassar was decided on October 3, 1955, over the 16-page dissent of Mr. Justice TALBOT SMITH. In Knight-Morley Corporation v. Employment Security Commission, 350 Mich. 397, decided November 26, 1957, Justice SMITH criticized the Cassar doctrine, in the course of a dissenting opinion joined by three other Justices, including Justice BLACK. In Peaden v. Employment Security Commission, 355 Mich. 613, decided April 13, 1959, Justice SMITH again criticized Cassar, this time being joined by two other Justices, but not including Justice BLACK. And, finally, in Linski, supra, on November 25, 1959, Cassar was overruled notwithstanding the legislature's quite obvious acquiescence therein.
During the interval between the decision in Cassar and its overrulement by Linski, the legislature had legislated with regard to the employment security act (although not with regard to the specific section involved in those cases) four times, by PA 1957, No 287, adopted June 13, 1957; PA 1957, No 311, adopted June 21, 1957; PA 1958, No 230, adopted June 13, 1958; and PA 1959, No 270, adopted October 30, 1959. When the legislature thus acted, according to the theory of the acquiescers, it had before it the Cassar opinions, in which seven Justices had interpreted section 29 to bar claimants from benefits and in which one Justice had interpreted the same language not to bar claimants; the Knight-Morley opinions, in which the judicial division became four to four; and the Peaden opinions, in which three of the Justices reaffirmed their belief that Cassar was wrong. Had the legislature thought Cassar's majority was wrong, surely it would have changed the pertinent language to make this clear. Instead, in the course of four legislative acts, it left section 29 unchanged. Should this not logically mean that the legislature approved the interpretation of Cassar's majority and rejected out of hand the interpretation of the lone dissenter in Cassar? Such is the conclusion to which a legislative acquiescer should have been driven, but Justice BLACK nonetheless felt free, in Linski, to "legislate" by saying that the section 29 language meant other than the "Court's solemn word" said it meant in Cassar, and this after the legislature had four times left untouched the section 29 language while amending other sections of the act.
Mosier v. Carney (1965), 376 Mich. 532, 594 (dissenting opinion of BLACK, J.).
A doctrine which is so flexible that it bars correction of judicial error in cases like this of Autio, wherein the pertinent statutory section has been subject to legislative action only three times since the blatantly erroneous interpretative decision of Hajduk, but does not bar such correction in the case of Van Dorpel, wherein the pertinent statutory sections had been the subject of such action nine times, is indeed a useful device to reach a desired decision. However, when such antinomous results emerge from a single principle, how does its application help "skilled lawyers, and correspondingly skilled subordinate court judges, [to] `know the law'"?
By PA 1943, No 245; PA 1954, No 175; and PA 1965, No 44.
Consider next the case of Wilson v. Doehler-Jarvis Division of National Lead Company (1960), 358 Mich. 510. Earlier, in 1954, in Fowler v. Muskegon County, 340 Mich. 522, 526, a case dealing with the workmen's compensation law, this Court unanimously held:
"Under our holding in the Luyk Case, [ Luyk v. Hertel (1928), 242 Mich. 445] the remedy for all matters connected with compensation must be found in the statute, and our holding in the Kermott Case, [ Kermott v. Ayer (1863), 11 Mich. 181] is that interest is statutory. It must follow that where the statute does not provide for interest, none can be granted."
In Wilson, a majority of five, including Justice BLACK, properly concluded that Fowler had been erroneously decided and voted to overrule it.
In the interval between Fowler and Wilson, the workmen's compensation law had been the subject of legislation three times, by PA 1955, No 122, PA 1955, No 250, and PA 1956, No 195, yet the legislature in no way indicated that the unanimous decision of Fowler, which held that workmen's compensation awards bore no interest, was wrong. Surely, then, it must have "acquiesced" in Fowler's interpretation, and thus insulated that decision from judicial overrulement. But the extreme flexibility of the doctrine of "legislative acquiescence" comes to the rescue of its advocates who, on selective occasion, shrink from its logical imperatives.
Thus it is said that only one unanimous decision interpretive of a statute followed by "legislative acquiescence", silent or otherwise, does not inhibit the Court from later correcting its erroneous interpretation. See Justice BLACK'S opinion in Halfacre, supra. Although the single-decision exception is bandied about, I find no rationally consistent explanation even suggested for its validity. Either the legislature is presumed to act with all of our advance sheets in hand or it is not. If it is so presumed to act, its acquiescence in a statutory interpretation announced by us in one decision should be as binding as its acquiescence in an interpretation announced in several decisions.
In Park v. Employment Security Commission (1959), 355 Mich. 103, 141, Justice BLACK relied upon two so-called exceptions to the "legislative acquiescence" doctrine ("one interpretive decision isn't binding" and "an interpretive decision in which there is a dissent isn't binding") to escape again the then unwelcome strictures of the doctrine. In Chrysler Corp. v. Smith (1941), 297 Mich. 438 (135 ALR 900), six members of the Court had interpreted language in section 29 of the employment security act to bar claimants from benefits. Despite a persuasive dissent, the legislature in the interval between Smith and Park amended section 29 no fewer than seven times, but remained, in Justice BLACK'S language, "disinterested in correction by its hand of our grievous misinterpretation at that time". 355 Mich. 103, 142. The legislature being unwilling to correct the Court's error, despite seven specific opportunities, Justice BLACK then saw no reason why the Court could not do so itself.
See footnote 10, supra.
PA 1941, No 364; PA 1942 (2d Ex Sess), No 18; PA 1943, No 246; PA 1947, No 360; PA 1951, No 251; PA 1954, No 197; PA 1955, No 281.
See, also, Thompson v. Ogemaw County Board of Road Commissioners (1959), 357 Mich. 482, and Employment Security Commission v. Vulcan Forging Company (1965), 375 Mich. 374, both of which decisions overruled earlier decisions construing statutory language and in both of which decisions Justice BLACK concurred.
The cited cases show that steady judicial legislating, as horrible examples of which Justice BLACK holds up volumes 375 and 376 of our reports, began well before then and with his unqualified support. As a matter of fact in volumes 375 and 376 there are only four cases in which the Court overruled any of its prior decisions: Felgner v. Anderson (1965), 375 Mich. 23, involving a question of common-law assumption of risk and in which Justice BLACK fully concurred; Employment Security Commission v. Vulcan Forging Company (1965), 375 Mich. 374, involving an overrulement of a prior statutory interpretation, and in which Justice BLACK fully concurred; Mosier v. Carney (1965), 376 Mich. 532, in which the Court overruled prior common-law decisions, to a limited extent; and Bunda v. Hardwick (1965), 376 Mich. 640, in which the Court overruled a prior common-law decision.
Excluded are cases in which less than a majority of the Court have written, unsuccessfully, to overrule prior decisions which, in their judgment, were erroneous and deserved respectful interment. See, for example, my opinion in Thom v. State Highway Commissioner (1965), 376 Mich. 608, 613.
Although we have confined this discussion in the main to cases involving statutory interpretation, because it is of overrulement of those cases that Justice BLACK now professes to be chary, we need not have done so, for as he indorsed in Van Dorpel (pp 149, 150):
"We can see no basic difference between a court overruling its former case law and overruling its former interpretation of a statute. Bad law no less ceases to be bad law, however the accident of its birth."
We might conclude this discussion of "legislative acquiescence" by quoting from the eminently correct writing of Justice BLACK in Park, supra, pp 145-147, and by hoping that he may yet return to the fold:
"In Helvering v. Hallock, 309 U.S. 106, 119-121 ( 60 S Ct 444, 84 L ed 604, 125 ALR 1368), the Court came to grips with today's identical controversy. Having found an earlier rule of statutory construction quite untenable, the court was immediately confronted by a contention that congress, having failed to correct the court's error, had perforce ratified that error and thus had rendered it immune from judicial correction. The court (pp 119-122) said (Justices Roberts and McReynolds dissenting):
"`We recognize that stare decisis embodies an important social policy. It represents an element of continuity in law, and is rooted in the psychologic need to satisfy reasonable expectations. But stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience. * * *
"`Nor does want of specific congressional repudiations of the St. Louis Union Trust Cases serve as an implied instruction by congress to us not to reconsider, in the light of new experience, whether those decisions, in conjunction with the Klein Case, make for dissonance of doctrine. It would require very persuasive circumstances enveloping congressional silence to debar this court from re-examining its own doctrines. To explain the cause of non-action by congress when congress itself sheds no light is to venture into speculative unrealities. * * * Various considerations of parliamentary tactics and strategy might be suggested as reasons for the inaction of the treasury and of congress, but they would only be sufficient to indicate that we walk on quicksand when we try to find in the absence of corrective legislation a controlling legal principle.
"`This court, unlike the House of Lords, has from the beginning rejected a doctrine of disability at self-correction. * * * The real problem is whether a principle shall prevail over its later misapplications. Surely we are not bound by reason or by the considerations that underlie stare decisis to persevere in distinctions taken in the application of a statute which, on further examination, appear consonant neither with the purposes of the statute nor with this court's own conception of it.'
"Here, then, is our contributed view that stare decisis is a discretionary rather than obstinate rule of judicial conduct. Fairly analyzed, it declares that appellate courts should adhere to precedent save only when due consideration leads to firm conviction that the earlier decision or decisions (emphasis added) in scrutiny are wrong as well as unjust, and that more rather than less injustice will flow from perpetuation of that which is found erroneous."
In the instant case of Autio, the appeal board made a record-supported finding of fact that plaintiff had suffered the loss of industrial use of his right hand as the result of an injury sustained during his employment by defendant Proksch Construction Company in 1952. The board also found that Proksch had failed to file an accurate report of this loss, having had timely notice thereof, a finding not challenged by Proksch, and the board concluded that the limitational period which is expressly provided in the workmen's compensation act was thereby tolled. However, the board held that plaintiff's claim for compensation for loss of industrial use of his hand, filed in June, 1961, was barred by the absolute six-year limitational period imposed judicially by this Court in Hajduk. Having written to overrule Hajduk, I would reverse and remand this case of Autio for further proceedings. Costs to plaintiff.
An inaccurate or incomplete report does not preclude tolling of the statutory limitational period provided by CL 1948, § 412.15 (Stat Ann 1950 Rev § 17.165). See Wilson v. Doehler-Jarvis Division of National Lead Company (1958), 353 Mich. 363, 372-374, and Weenink v. Allen Electric Equipment Co. (1936), 276 Mich. 561.
T.M. KAVANAGH, C.J., and SMITH, O'HARA, and ADAMS, JJ., concurred with SOURIS, J.
My views respecting this now really contagious business of judicial amendment of statutes, effected by retroactively effective overrulements of long standing, steadily accepted and unanimously mature interpretations and applications thereof, came to extended spread upon our record when Burns v. Van Laan, 367 Mich. 485; Harris v. City of Detroit, 367 Mich. 526; and Halfacre v. Paragon Bridge Steel Co., 368 Mich. 366, were handed down in 1962.
"This is another case, like recent Burns and Harris, where one who claims under a long standing statute would have us rewrite that statute so that it provide for him exactly what this Court, 30 years ago and consistently since, has said unanimously it does not provide." Halfacre at pp 381, 382.
Since then the key vote of restraint, provided by Chief Justice CARR in matters of proposed overrulement, is no longer here. In the resultant circumstances it is — for the time being — useless to write much more against what I look upon as a judicial disease; a disease which — if not quickly cured — is bound to destroy the only substance which sustains our judicial system. That substance is public confidence in the intellectually steadfast devotion of judges to law as it is written; distinguished from law judges want ordained.
That this Court has legislated, boldly, retroactively and steadily since Chief Justice CARR departed, just as the Court so grievously legislated when the present criticized Hajduk Case was signed and released, is neither doubted nor denied. It cannot be denied now. The 375th and 376th Michigan Reports are at large and beyond recall. Such judicial legislation is a naked fact confronting every lawyer, and now most citizens, as all of us go about the necessarily continuous effort to carry on the affairs of society according to the principle of government by law rather than government by men, the edicts of whom are now being stamped nunc pro tunc.
Hajduk v. Revere Copper Brass, Inc. (1934), 268 Mich. 220. — REPORTER.
The time has come for all lawyers and judges of Michigan to resign themselves to this real, if temporal, usurpation of legislative power. Too, the minority seated here must philosophically accept the situation until our personnel is changed by those inexorables all lifetime seekers of public office have ever feared and always have known.
Agreeing only with what I concede to be rightful damnation of the Court's 32-year-old error ( Hajduk, 268 Mich. 220), and viewing that error as correspondingly identical with the error considered in Halfacre, I am moved to stand in favor of legislative correction of the error of Hajduk. If that is not to be, then certainly I would stand for wholly prospective overrulement of Hajduk and the subsequent cases that are applicatory thereof (the latest being simultaneously and unanimously decided Babcock v. General Motors Corporation, 340 Mich. 58 and Malleis v. Employment Security Commission, 340 Mich. 78). For reasons see Linkletter v. Walker, 381 U.S. 618 ( 85 S Ct 1731, 14 L ed 2d 601), Tehan v. United States, ex rel. Shott, 382 U.S. 406 ( 86 S Ct 459, 15 L ed 2d 453), and the new text of American Jurisprudence (20 Am Jur 2d, Courts, § 234, p 562, "Change in construction of statute"). Nunc pro tunc law, enacted judicially by the process of overruling unanimous and mature decisions dealing with standing statutes, is consummately indefensible. That is why no member of our Court attempts to defend the practice as he proceeds with it.
In Hajduk, as in Boshaw v. J.J. Newberry Co., 259 Mich. 333 (83 ALR 412) (see Halfacre at p 382), "the court just hauled off and enacted an amendment of the statute" (the workmen's compensation law).
One outvoted re the above must simply bide the passage of time, hopeful that this hell-for-breakfast enterprise of now-for-then legislation by the Court is transitory and that it will not — because really it cannot — go on much longer. Even a legislature could not, consistent with constitutional guaranties, do what the Court has continued to do in 1965, and does now in 1966, that is, destroy defensive rights of substance which, by law, had become vested long before the date of the legislative attempt. Too, and no matter what branch of government tries it, the result is palpably invidious discrimination, effected in favor of those who seek retrospective overthrow of laws others of their class have obeyed.
At one time students and citizens, lay and professional, were taught that everyone is presumed to know the law, and hence is duty bound to act in accord therewith. But how may even skilled lawyers, and correspondingly skilled subordinate court judges, "know the law" when they are taught that the law in the books is not law at all, unless upon litigatory test a bare majority of this very ordinary Supreme Court happens to like it? Former Justice VOELKER'S latest epigram comes to mind at this point. I quote it from "Laughing Whitefish", p 239 (McGraw-Hill 1965):
"Clapping a black nightshirt on a lawyer and packing him off to the state capital and thenceforth calling him "Mister Justice" makes him no less fallible and uncertain than he was when he was back home drawing five-dollar wills."
I vote to affirm, without an award of costs.
. . . . . . . . .
Since the foregoing opinion was submitted to other members of the Court, Justice SOURIS has written 14 additional pages for the case; all devoted to the Court's most disputatious topic, that is, the "now for then" overrulement of unanimous and long standing decisions which have construed and applied legislatively unamended statutes. Beginning riposte, I shall presume that the reader of this postlude has read the 14 pages; also that he perceives clearly that our continuant debate turns upon the specificity of that respect which is due to the constitutional injunction against usurpation, by one branch of the government, of the powers belonging properly to another (Const 1963, art 3, § 2).
The 14 pages, boiled down to actual fact, are aimed at my unconditional indorsement of two opinions Justice VOELKER wrote prior to Justice SOURIS' appointment to the Court. I shall come to them, noting with a modicum of satisfaction that the stinging challenge, delivered in the foregoing opinion, has finally brought this debate out into the open; on our public record distinguished from the claustrally safe smugness of the Court's conference room. The challenge, repeated here as and for a textual start, is this: "That is why no member of our Court attempts to defend the practice [ nunc pro tunc overruling] as he proceeds with it."
Now really, I would rather have the record made by my pen exhibit my views, the pertinent subject being "legislative acquiescence," than permit those views to be selectively twisted and turned around by one who, at long last, has been forced to attempt some defense of this mushrooming policy of judicial amendment of standing statutes. My Brother should know the record that pen has made, pretty well by now, since he opposed it directly in the 3 pointedly divisive cases to which reference was initially made in the opinion above ( Burns, 367 Mich. 485; Harris, 367 Mich. 526; Halfacre, 368 Mich. 366).
See comment with respect to such policy, all unceremonious and with full detail, in People v. Holbrook, 373 Mich. 94, 101; Currie v. Fiting, 375 Mich. 440, 457-488; and Mosier v. Carney, 376 Mich. 532, 587-606.
Here is that record. It cannot be changed now. Too many thousand Michigan lawyers have it booked on their shelves. ( Burns at p 493, handed down September 10, 1962.)
"The whole argument for and against `extension of our recent ruling in Montgomery v. Stephan' adds up to this: Some in today's situation of longtime and steadily unanimous construction of an old statute would `extend' the power of the judiciary to rewrite that statute so that it means what in Staal we said it does not mean. Others — the writer being one — would respect the almost conclusive force of the doctrine of `legislative acquiescence' where, as here, such acquiescence is proven by many years of unanimous interpretation; the legislature meanwhile remaining acquiescently compliant."
Montgomery v. Stephan, 359 Mich. 33. — REPORTER.
Staal v. Grand Rapids I.R. Co., 57 Mich. 239. — REPORTER.
( Harris at pp 536 and 537, handed down the same day.)
"This is not a case where, by a nonunanimous and nonmature decision challenged at the bar, a standing statute is shown as having been misconstrued and misapplied. An example of that kind of judicial blunder was examined and set right in Park v. Employment Security Commission, 355 Mich. 103. Here a 70-and-more-year-old statute, which by its terms created the very right of action this plaintiff pleads, has been construed by a long series of unanimous decisions as denying such right where the pleader is unable to allege and prove a violation of what lawyers have come to know as the `2-inch rule.' The sole question is whether any `cogent circumstances' are disclosed, or may be judicially noticed, which might lead us to depart from that which was settled so many years ago. I perceive none, and so would stand by the general rule which is applicable to stare decisis in the field of statutory construction distinguished from that of the common law. Such general rule appears in 14 Am Jur, Courts, § 66, pp 287, 288. It was the subject of some little debate in the Park Case, supra.
"Stressed for special emphasis is the fact that we are asked to overrule unanimous cases construing an unamended statute; not a case or line of cases announcing a rule of the common law."
( Halfacre at pp 381, 382, 384-388 handed down December 4, 1962.)
"This is another case, like recent Burns and Harris, where one who claims under a long-standing statute would have us rewrite that statute so that it provide for him exactly what this Court, 30 years ago and consistently since, has said unanimously it does not provide. So comes to public assay the solemnly recorded and wholly united word of this Court, given repeatedly upon oath to lawyers, legislators, and judges, that this statutory proviso of 1927 spells out 2 kinds rather than 1 kind of defense against payment of double compensation to illegally employed minors." (pp 381, 382.)
"My Brother SOURIS' proposal to overrule is too rashly impetuous for me. After all, the doctrine of legislative reliance upon and acceptance of judicial interpretation has its value and its place. Moreover, there is present today one only of those `cogent circumstances' which, in Sheppard v. Michigan National Bank, 348 Mich. 577, 596-603, and Park v. Employment Security Commission, 355 Mich. 103, 138-140, 141-151, led this Court to overrule previous interpretative decisions. In today's instance, unless we are to ignore a constantly employed axiom (that the legislature enacts with the Court's interpretational decisions in one hand as it writes and votes with the other), we have here most of the more or less conclusive reasons why the doctrine of legislative acceptance should be applied. When a legislature, confronted constantly with unanimous interpretations like Boshaw and its progeny, deliberately reenacts without change such an interpreted statutory proviso, and does so 8 times running over a period of 30 years, it seems to me that any judge who fails to apply the mentioned doctrine wittingly or unwittingly violates the law (see Cardozo, Nature of the Judicial Process, p 129). I at least want no part of a motion to overrule what indeed was bad law but now is anchored in a regularly readopted statutory provision." (pp 384, 385.)
Boshaw v. J.J. Newberry Co., 259 Mich. 333 (83 ALR 412). — REPORTER.
"With respect to this case of Halfacre there are no previous decisions `in turmoil and conflict.' Instead there are 3 unanimous decisions, upon continued strength of which the legislature presumably has legislated 8 times. Thus and today there is affirmatively more than legislative `silence.' There is frequent legislative action taken in presumptive reliance upon judicial advices long since given with never a dissenting judicial voice. I repeat; never a dissenting judicial voice until these cases of Halfacre and Keller came along.
Keller v. Fraser Stamping Company, 368 Mich. 397. — REPORTER.
"As for the Park Case it need only be said, as was said at the time, that the single earlier decision ( Chrysler Corp. v. Smith, 297 Mich. 438 [135 ALR 900]) was the subject of `sharp and unerring dissent.' It literally forewarned the legislature that when the question came up again it would be due for something more than cozy reaffirmation. The divisive Chrysler Case actually remained in chancery, to engage the sporting phrase, until it arrived for re-examination by a court which of necessity was concerned with the need for unitary national construction of like statutes enacted (by most of the States) as a `part of the legislative scheme for unemployment compensation induced by the provisions of the social security act of 1935' (see footnote 2, p 145, Unemployment Compensation Commission of Alaska v. Aragon, 329 U.S. 143 [ 67 S Ct 245, 91 L ed 136]). Here we are confronted by 3 — not just 1 — unanimous decisions, all matured and fitted to each other, which under the rule of Department of Conservation v. Connor bid us accept gracefully what the legislature has accepted.
Department of Conservation v. Connor, 321 Mich. 648. — REPORTER.
"If Boshaw alone stood before us, divisive or otherwise, we then might avail ourselves of the principle that `one decision construing an act does not approach the dignity of a well settled interpretation' ( United States v. Raynor, 302 U.S. 540, 552 [ 58 S Ct 353, 82 L ed 413]; quoted and followed in White v. Winchester Country Club, 315 U.S. 32, 40 [ 62 S Ct 425, 86 L ed 610]). Such, however, is not today's case. Boshaw, Blanton , and Walker , standing unitedly, constitute `the dignity of a well-settled interpretation' even though all were patently wrong when written, and there we find the difference between the situation faced in Park and that which faces us now. One clearly erroneous interpretation of a statute, attested over unanswerable dissent, has little value as presumptive proof of legislative acceptance thereof. It carries its own flag of independability. Three unanimous decisions however, supporting each other solidly and seemingly accepted for many years by an acquiescent legislature, are quite beyond judicial repudiation when they involve statutes rather than the common law." (pp 386-388.)
Blanton v. Clay Products Co., 310 Mich. 635. — REPORTER.
Walker v. Ridley Cleaners, Inc., 311 Mich. 4. — REPORTER.
To the above consider People v. Holbrook, 373 Mich. 94, 101, into which the following was penned by the writer:
"There is, I fear, an all too easygoing tendency in our midst to overrule long since settled and unanimous but unsatisfactory constructions of standing statutes. Consider Halfacre, supra; also Wallace v. Tripp, 358 Mich. 668, 681; Harris v. City of Detroit, 367 Mich. 526, 536-539, and now In re Carey, 372 Mich. 378, 382.
"I, too, believe that provably errant precedent of statutory construction, especially that which is of recent origin and is opposed by vigorous and portentously predictive dissent, should be overruled. See, for instance, the contribution made by the undersigned to Park v. Employment Security Commission, 355 Mich. 103, at 141-151. But, as pointed out in that contribution, stare decisis is the rule, and overrulement is the exception. The exception, to justify its application, calls for something more than contemporaneous disfavor."
But Justice SOURIS says, today ( ante at p 536):
"Thus it is said that only one unanimous decision interpretive of a statute followed by `legislative acquiescence', silent or otherwise, does not inhibit the Court from later correcting its erroneous interpretation. See Justice BLACK'S opinion in Halfacre, supra. Although the single-decision exception is bandied about, I find no rationally consistent explanation even suggested for its validity. Either the legislature is presumed to act with all of our advance sheets in hand or it is not. If it is so presumed to act, its acquiescence in a statutory interpretation announced by us in one decision should be as binding as its acquiescence in an interpretation announced in several decisions."
So my Brother can find "no rationally consistent explanation even suggested for its validity," referring as he does above to the "one decision" exception to the general rule of legislative acceptance. His search for such "rationally consistent explanation" hardly could have been prolonged, and his memory surely is bad. A scant five months after release of Halfacre, Halfacre with the writer's definite reference to the "one decision" rule (final paragraph quoted above), Justice SOURIS joined the writer, along with Justices T.M. KAVANAGH and OTIS SMITH, in the unqualified indorsement of this ( Smith v. Lawrence Baking Co., 370 Mich. 169, 177, 178; prevailing opinion by Justice T.M. KAVANAGH):
"We do not lightly overrule settled decisions construing any section of a standing statute. Had the Wagner Case represented unanimous views of the Court, we might hesitate resolving to overrule that case since, as Justice Brandeis said so pointedly in Burnet v. Coronado Oil Gas Co., 285 U.S. 393, 406 ( 52 S Ct 443, 76 L ed 815):
Wagner v. La Salle Foundry Co., 345 Mich. 185. — REPORTER.
"` Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.'
Wagner's dissent, however, simply postponed a final interpretive decision. And even if Wagner's majority view had been rendered as unanimous, we would not necessarily be bound thereby since `one decision construing an act does not approach the dignity of a well-settled interpretation.' See White v. Winchester Country Club, 315 U.S. 32, 40 ( 62 S Ct 425, 86 L ed 619), quoting and following United States v. Raynor, 302 U.S. 540, 552 ( 58 S Ct 353, 82 L ed 413)."
Upon reading all of Justice SOURIS' comments upon the citations appearing in the 14 pages aforesaid, it will be found that my Brother's indictment of my record of consistency is founded solely upon my indorsements of Justice VOELKER'S opinions of Van Dorpel v. Haven-Busch Co., 350 Mich. 135 and Wilson v. Doehler-Jarvis Division of National Lead Company, 358 Mich. 510. Now Van Dorpel was a standoff; four of us standing for overrulement of "one decision," that only. That decision was Curtis v. Hayes Wheel Co., 211 Mich. 260. And Wilson overruled "one decision," that only. That decision was Fowler v. Muskegon County, 340 Mich. 522.
It would seem that, by harking back to Smith v. Lawrence Baking Co., we might prosperously resolve our present differences respecting the boundaries of that line, a line I concede is somewhat grayish, which separates pertinently the legislative power from the judicial process. Since the writer along with Justices SOURIS and SMITH indorsed what Justice T.M. KAVANAGH wrote into the Smith Case per quotation above, the Court might well consider writing a precedential declaration of redevotion to such quoted doctrine. It is founded on the principle, adopted in Smith from Raynor ( 302 U.S. 540, 552) and White ( 315 U.S. 32, 40), that "one decision construing an act does not approach the dignity of a well settled interpretation."
I do not favor acceptance of plaintiff's invitation to overrule Hajduk v. Revere Copper Brass, Inc., 268 Mich. 220, and Ardelian v. Ford Motor Co., 272 Mich. 117. The holding in those cases was that by analogy to the general statute of limitations, six years must be deemed to be the limit of time and a reasonable one within which a proceeding for compensation should be commenced under the workmen's compensation act; and, further, that the running of that period is not tolled by the employer's failure to file a report of accident as provided by that act in CL 1929, § 8431, because that tolling applies only to the six-month limitation provided in that same section.
CLS 1961, § 412.15 (Stat Ann 1960 Rev § 17.165). See, currently, as amended by PA 1965, No 44 (Stat Ann 1965 Cum Supp § 17.165).
Thirty-two years have passed since the decision in Hajduk was announced by this Court, followed the next year in Ardelian. The act has been before the legislature and amended many times during that period. No amendment has been added to change the rule of Hajduk and Ardelian. The conclusion must be one of legislative acquiescence in the statutory interpretation of those two cases. For us now to change the law by overruling them would amount to legislation by judicial fiat. Accordingly, I concur with Mr. Justice BLACK in affirmance.
KELLY, J., concurred with DETHMERS, J.