Tazewell Coal Co. v. Industrial Commission, 287 Ill. 465 (1919)

April 15, 1919 · Illinois Supreme Court · No. 12623

287 Ill. 465

(No. 12623.

Reversed and remanded.)

The Tazewell Coal Company, Plaintiff in Error, vs. The Industrial Commission et al.—(Martina Lipnick, Admx., Defendant in Error.)

Opinion filed April 15, 1919.

1. Constitutional law—liability cannot be imposed without notice and an opportunity to be heard. The constitution affords protection against the imposition of any liability without notice and an opportunity to be heard.

2. Workmen’s compensation—jurisdiction of the Industrial Board must appear from facts in record. There is no presumption of jurisdiction in favor of a body exercising a limited or statutory jurisdiction, such as an industrial board, and nothing is taken by intendment in favor of such jurisdiction but the facts upon which it is founded must appear in the record.

3. Same—employer entitled to judicial review of proceeding to commute award—when action of board cannot be sustained. The. employer has a right to a judicial review of a proceeding before the Industrial Board to commute an award to a lump sum, and where the record contains no fact or evidence upon which the order of the Industrial Board is founded but only the conclusion of the board that it is for the best interest of the parties that compensation be paid in a lump sum the order cannot be sustained.

Writ oE Error to the Circuit Court of Tazewell county; the Hon. John M. Niehaus, Judge, presiding.

William A. Potts, for plaintiff in error.

J. P. St. Cerny, (W. B. Cooney, of counsel,) for defendant in error.

Mr. Justice Cartwright

delivered the opinion of the court:

The Industrial Board awarded compensation to defendant in error, Martina Lipnick, administratrix of the estate of Andrew Lipnick, deceased, on account of his death while in the emplo)unent of. plaintiff in error, the Tazewell Coal Company. On September 12, 1917, plaintiff in error filed its verified petition in the circuit court of Tazewell county, alleging that on July 2, 1917, defendant in error, Martina Lipnick, filed her petition for payment of the compensation in a lump sum, and upon a hearing an order was made on August 21, 1917,-by which the compensation was commuted to a lump sum of $3093.74, and notice of the order was received by plaintiff in error on August 25, 1917; that no notice of the filing of the petition was given to plaintiff in error, and it had no notice of the pendency of the petition and no opportunity to appear and oppose, by evidence or otherwise, the commutation of the award to a lump sum, and that the Industrial Board had no jurisdiction of the cause or the person of the plaintiff in error. The petition prayed for a writ of certiorari commanding the Industrial Board to certify to the court a full and complete record of the proceedings. The writ was issued and a return was made certified as a full and complete record, which showed a petition for the commutation of the compensation to a lump sum and alleging facts upon which the petition was based. Concerning jurisdiction and the basis for the finding and order of the board the record is as follows: “The said board having given proper notice to the parties hereto and said matter now coming to be heard, the board, upon proper showing of the parties hereto and having made careful inquiry and investigation of said matter and being fully advised in the premises, doth find that it is for the best interest of the parties hereto that compensation be paid in a lump sum.” The court quashed the writ of certiorari, dismissed the petition, rendered judgment for costs against plaintiff in error and certified that the cause was one proper to be reviewed by this court.

Section 9 of the Workmen’s Compensation act provides that upon a petition to the Industrial Board, if, upon proper notice to the interested parties and a proper showing made before the board, it appears for the best interest of the parties that the compensation be paid in a lump sum the board may order commutation to an equivalent lump sum. The statute does not prescribe the character of notice which shall be given or the length of time or manner of service but only that there shall be proper notice. The record does not show any rule or regulation of the board as to what is regarded as proper notice or what notice is to be given, which would be subject to judicial review to determine its reasonableness. (Kettles v. People, 221 Ill. 221.) The constitution affords protection against the imposition of any liability without notice and an opportunity to be heard. There is no presumption of jurisdiction in favor of a body exercising a limited or statutory jurisdiction, such as an industrial board. Nothing is taken by intendment in farmr of such jurisdiction but the facts upon which the jurisdiction is founded must appear in the record. The record filed in return to the writ does not show what notice was given to plaintiff in error or what method of informing plaintiff in error of the proceeding was adopted or regarded proper by the Industrial Board, and the record fails to show jurisdiction over plaintiff in error or any authority of the board to hear and decide the question presented by the petition. Plaintiff in error had a right to a judicial review of the proceeding, and the record must show that the board acted upon evidence and contain the testimony upon which the decision was based, in order that the court may determine whether there was any evidence fairly tending to sustain' the order. (Forschner & Co. v. Industrial Board, 278 Ill. 99.) The record contains no fact or evidence upon which the order was founded but only the conclusion of the board that it was for the best interest of the parties that compensation be paid in a lump sum. Such a record practically deprives a party of any review of the proceeding.

The judgment of the circuit court is reversed and the cause is remanded.

Reversed and remanded.