#### SAM CRANDALL, Respondent, v. NORTH DAKOTA WORKMEN’S COMPENSATION BUREAU, Appellant.

(207 N. W. 551.)

Workmen’s Compensation Bureau — court may not entertain appeal from Workmen’s Compensation Bureau until bureau denies compensation on ground going to basis of claimant’s right.

The district court is without jurisdiction to entertain an appeal from the Workmen’s Compensation Bureau, under § 17, chapter 162, Laws 1919 (Workmen’s Compensation Act) unless, and until, such bureau has taken final action in the matter denying the claimant the right “to participate at all in the workmen’s compensation fund on the ground that the injury was self-inflicted, or on the ground that the accident did not arise in the course of employment, or upon any other ground going to the basis of the claimant’s right.”

Opinion filed August 4, 1925.

On rehearing February 11, 1926.

Workmen’s Compensation Acts, C. J. § 2 p. 5 n. 11; § 123 p. 119 n. 6.

Note. — ¡Right and extent of review of findings of Commission under Workmen’s Compensation Act, see annotation in L.R.A.1916A, pp. 178, 266; L.R.A.1917D, 186; 28 A.L.R. S82; 28 R. C. L. 828; 3 R. C. L. Supp. 1600; 4 R. C. L. Supp. 1872; 5 R. C. L. Supp. 1580; 6 R. C. L. Supp. 1766.

Erom a judgment of tbe District Court of Richland County, *Mc-*Kenna-, J., the defendant, North Dakota Workmen’s Compensation Bureau, appeals.

Reversed.

*Scott*Cameron-, for appellant.

“It is elementary that a statute which limits the time for an appeal is mandatory and jurisdictional and therefore must be strictly construed, and where appeal was not taken within the statutory period the court of review is without power to do more than dismiss the appeal.” Stierlen v. Stierlen, 8 N. D. 291.

“No estoppel can grow out of dealings with public officers of limited authority, and the doctrine of equitable estoppel cannot ordinarily be involved to defeat a municipality in the prosecution of its public affairs because of an error or mistake of, or because of a wrong committed by, one of the officers or agents which had been relied upon by a third party *637to bis detriment.” 10 B. C. L. 707; Philadelphia Mtg. & Trust Co. v. Omaha, 57 L.K.A. 150.

*Lemhe & Weaver,*for respondent.

“Courts have been practically unanimous in according Workmen’s Compensation Acts a broad and liberal construction in order to effect their evident intent and purpose. . . Workmen’s Compensation* C. J. T. § 34; Kennerson v. Thames Towboat Co. 89 Conn. 367, L.B.A.1916A, 436; Young v. Cucan, 218 Mass. 346; He Petrie, 215 N. Y. 335, and numerous other authorities cited under § 34, Workmen’s Compensation, Corpus Juris Treatise.

“The underlying purpose of the act is denominated to be protection of the injured workmen, their families and dependents, and the provision of sure and certain relief; to that end all jurisdiction of the courts nver personal injuries sustained by employees is abolished except as provided in the act. . . .” Gotchy v. N. D. Workmen’s Comp. Bureau, 194 N. D. 663.

“The industrial commission not only has the right to retain the jurisdiction of a proceeding to obtain compensation for further action and award, but such is its legal duty where the extent of the claimant’s disability cannot be immediately ascertained.” E. M. Ind. Co. v. Ind. Comm. 176 Pac. 314.

As to the amount and period of compensation, the statutes are to he liberally construed for the protection of the employee. Mass Bond. Co. v. Pillsbury, 170 Cal. 767, 151 Pac. 419; State v. Blue Earth County. Dist. Ct. 158 N. W. 700.

“The compensation to be awarded is not measured by the degree of the .injury, but rather by the degree of the incapacity which is caused by the injury.” 28 B. C. L. § 107, p. 821, L.B.A.1916A, 32.

“Where the evidence justified a finding of total incapacity, the compensation which the employee might be entitled to for partial incapacity need not be considered.” C. J.' Treatise, § 83; Be Séptimo, 219 Mass. 430, 107 N. E. 63; Bruce v. Taylor, 158 N. W. 153.

“Where the injury to one part of the body causes the loss of the use of another part, compensation may be based upon the loss of such use.” O. J. T. § 88, p. 96. See also in Be Burns, 218 Mass. 8, 115 N. E. 601.

The courts will take judicial notice of the official acts and records of public boards such as the railroad commission and the workmen’s com*638pensation board. Chicago & N. W. R. Co. v. Railroad Comm. 145 N. W. 262.

CiteistiaNSON, Ch. J.

In February 1922, the plaintiff, Sam Cran-dall, was employed as a deputy sheriff by Richland county, in this lítate. And he claims that on February 7th, 1922, he sustained certain injuries in the course of his said employment. On February 20th, 1922, he prepared a claim for compensation and presented the same to the Workmen’s Compensation Bureau for consideration. After investigation, the bureau, on April 27th, 1922, made its findings of fact and order for payment of medical expenses in the matter. In such findings and order the bureau found as follows: “That claimant sustained injury on the 7th day of February, 1922. That claimant was regularly employed, at the time of the injury, by Richland county, North Dakota. Prior to and at the time of the injury said employer was a subscriber to the State Insurance Fund; that claimant’s injury was sustained in the course of his employment; and that the said injury was not purposely self-inflicted. Claimant has not been disabled for more than seven days on account of said injury and is not entitled to any compensation other than the payment of the expenses incurred on account of said injury. That plaintiff has incurred the following expenses allowed at: The sum of $4.50 for medical expenses. Now, therefore, it is hereby ordered that the claimant is not entitled to any compensation on account of any disability arising out of said injury, save and except the payment of his medical expenses, etc., and it is hereby further ordered that the sum of $4.50 for medical expenses be paid direct to Dr. T. O’Brien.”

The record does not show when notice of this decision was given to the plaintiff; but apparently it was prior to May 1st, 1922, as on that date he wrote a letter to the Compensation Bureau asking for a review of the Case and stating that If a review were denied he would appeal. No further action was taken until April 12th, 1923, when he filed an application for review. On May 23d, 1923, the bureau made an order refusing to reopen the matter. Thereupon, on or about June 5th, 1923, the plaintiff served and filed a notice of appeal together with a complaint. The Workmen’s Compensation Bureau interposed a demurrer to the complaint which was overruled. Thereupon an answer was served *639and filed and the matter tried to tbe district court, with tbe result tbat judgment was rendered in favor of tbe plaintiff for tbe aggregate sum of $6,934.72; which sum was directed to be paid at tbe rate of $16.67 per week commencing February 7th, 1922. Plaintiff was also ¿warded costs of tbe proceedings. The Workmen’s Compensation Bureau has appealed from this judgment.

Tbe principal question raised by tbe Workmen’s Compensation Bureau, both in its demurrer and answer, and by objections during the course of tbe trial, went to tbe jurisdiction of the court to hear and determine plaintiff’s purported appeal. Tbe bureau contended tbat tbe order sought to be reviewed was not appealable and tbat the purported appeal to tbe district court conferred no jurisdiction upon the court to hear and determine plaintiff’s claim for compensation. The same question is raised and the same contention is advanced by tbe bureau in this court. Tbe question thus raised involves a consideration of tbe various provisions of tbe Workmen’s Compensation Act and particularly §§17 and 18 of tbat act. These sections read as follows:

> “Section 17. *The bureau shall have full power and authority to hear and determine all questions within its jurisdiction, and its decision thereupon shall be final.*Provided, however, in case tbe final action of such bureau denies the right of tbe claimant to participate at all in the Workmen’s Compensation Fund on tbe ground tbat tbe injury was self-inflicted, or on tbe ground tbat tbe accident did not arise in the course of employment, or upon any other ground going to tbe basis of tbe claimant’s right, then tbe claimant within thirty (30) days after tbe notice of the final action of such Bureau may by filing bis appeal in tbe district court for tbe county wherein tbe injury was inflicted, be entitled to a trial in the ordinary way. In such a proceeding, tbe state’s attorney of tbe county without additional compensation shall represent tbe Workmen’s Compensation Bureau, and shall be notified by tbe clerk forthwith of tbe filing of such appeal.

> “Within thirty (30)days after filing bis appeal, tbe appellant shall file a petition in tbe ordinary form against such Bureau as defendant, and further pleadings shall be bad in said cause, according to tbe rules of civil procedure, and the court shall determine tbe right of tbe claimant ; and if it determines tbe right in bis favor; shall fix his compensation within tbe limits prescribed in this act; and any final judgment so *640obtained shall be paid by the Workmen’s Compensation Bureau out of the Workmen’s Compensation Fund in the same manner as awards are paid by such bureau.

> “The cost of such proceeding, including a reasonable attorney’s fee to the claimant’s attorney to be fixed by the trial judge, shall be taxed against the unsuccessful party.”

> “Either party shall have the right to prosecute error as in the ordinary civil cases.”

> “Section 18. If the original claim for compensation has been made within the time specified in Section fifteen the bureau may, at any time, *on its motion*or on application, review the award, and, in accordance with the facts found on such review, may end, diminish, or increase the compensation’previously awarded, or, if compensation has been refused or discontinued, award compensation.”

The North Dakota Workmen’s Compensation Act (Laws 1919, -chap. 162) is compulsory, its provisions operate upon all persons and all employments within the act (Bordson v. North Dakota Workmen’s Comp. Bureau, 49 N. D. 534, 191 N. W. 841; Fahler v. Minot, 49 N. D. 960, 194 N. W. 695), and it substitutes the principle of compensation for that of liability for fault. Fahler v. Minot, 49 N. D. 960, 194 N. W. 695; State ex rel. Dushek v. Watland, 51 N. D. 710, 39 A.L.R. 1169, 201 N. W. 682. The remedy provided by the act for the compensation of “workmen injured in hazardous employments, and their families and dependents” is (according to the terms of the act) exclusive “of every other remedy, proceeding or compensation, except as otherwise provided in the act; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are abolished, except as in the Act provided.” Laws 1919, § 1, chap. 162.

It will be noted that § 17, siipra, expressly provides that the Workmen’s Compensation Bureau *“shall have full power and authority to hear and determine all questions within its jurisdiction,"*and that *“its decision thereon shall he final.”*And it further provides that a claimant against the workmen’s compensation fund shall be entitled to appeal, from and obtain a judicial review of the action of the bureau “in case' the final action of such Bureau *denies the right of the claimant to participate at all*on the ground that the injury was self-inflicted, or on the' *641ground that tbe accident did not arise in tbe course of employment, or upon any other ground going to tbe basis of tbe claimant’s right.” In considering tbe scope of tbe judicial review so afforded this court, in Gotchy v. North Dakota Workmen’s Comp. Bureau, 49 N. D. 915, 194 N. W. 666, said:

> “It may be observed that the statute accords tbe right of appeal from tbe decision of the board (bureau) upon certain designated grounds.

> . . . It must be remembered that tbe Compensation Act provides that all civil actions and civil causes of action and all jurisdiction of courts over such causes are abolished, except as in tbe Act provided. . . .

When an appeal is taken from a decision of tbe bureau tbe court is empowered to determine two things:

> “ 'The right of tbe claimant, and, if established, tbe fixing of tbe compensation within tbe limits prescribed in tbe act.’ ” Section 17.

> “This right of appeal, as may be noted, is limited. *No right of appeal is granted from the recognition or allowance of a claim, or from the amount of aw award made by the bureau. In such cases, its determination is final. Otherwise, except as this limited right of appeal permits', the bureau has full power and authority to hear and determine finally all questions within its jurisdiction*

Section 17, supra (like many of tbe other provisions of our Compensation Act), was doubtless taken from tbe Ohio Workmen’s Compensation Act. . So far as concerns tbe question under consideration here tbe language of § 17, supra, is identical with tbe Ohio Law. See § 36, Act of May 31, 1911; 102 Ohio Laws, 53Í. (The only difference between § 17, supra, and tbe same provision in tbe Ohio law is that tbe Ohio law provides that where an appeal has been taken from tbe final action of tbe Workmen’s Compensation Bureau, the claimant “shall be entitled to a jury if be demands it,” — this clause was eliminated from tne statute as enacted in this state).

In considering tbe scope of judicial review afforded by tbe appeal authorized by tbe statute, tbe supreme court of Ohio in Snyder v. State Liability Bd. of Awards, 94 Ohio St. 342, 114 N. E. 270, said:

> “It is to be observed that *the statute which confers the right of appeal does so upon condition that final action of the board denies the right of the claimant to participate at all in the fund, upon one of the grounds therein enumerated. The right of appeal proceeds upon the theory that*
>       *642
>       *there has been a finding by the boa/rd that it is without jurisdiction to act in the matter.*If the board should find that the injury complain,ed of was self inflicted, or that the injury did not arise in the course of employment,' or that there was some other ground which went to the basis of claimant’s right, then the board, being without jurisdiction, must necessarily deny the right of claimant to participate. The claimant then, under the proviso in the statute in question has his day in court, and it is expressly provided that after the appeal is perfected and the pleadings are filed the court, or a jury under the instructions of the court, if a jury is demanded, shall *determine the*right of the claimant to participate in the fund. That is the first question to be determined by the court or jury. If it is determined adversely to the claimant, that is the end of the matter. If there is a finding in his favor, then the court or jury goes further and fixes the compensation within the limits and under the rules prescribed by law, and the judgment so obtained shall be paid out of the insurance fund. *The court or jury, as we view it, would have no authority under the provisions of this statute to deal with the amount of compensation unless the question of the right of the complainant to participate in the fund was in issue.*In the case under consideration this right 'could not be, and was not, denied claimant by the State Liability Board of Awards. The matter was unquestionably within its jurisdiction. The employer had contributed to the State Insurance Bund, the employee was injured in the course of his employment, there could be no denial of his right, and he was therefore permitted to participate in the fund. . . .

> “As we view the present case, plaintiff in error, in invoicing the jurisdiction of the court of common pleas, sought to have the court review the amount allowed to him by the State Liability Board of Awards. *His right to participate in the fund, as we have seen, had not been denied, and a denial of this right upon one or more of the grounds set out in the statute being a condition precedent to his right to appeal to the court of common pleas, that court was therefore without jurisdiction to act in the matter,*and the Court of Appeals was correct in so finding.”

The holding of the Ohio court was epitomized in ¶ 1 of the syllabus thus :

> “The term ‘final action’ as used in section . . . has relation .to the question whether or not the industrial commission has jurisdiction *643to allow compensation to a claimant out of tbe. state insurance-fund, apd under tbe provisions of that section, as a condition precedent to. tbe right of claimant to file bis appeal in tbe court of common pleas, thebe must be’ a denial of bis right to participate at all in such fund, based upon one of tbe jurisdictional matters enumerated in tbe section.”

Tbe rule announced in Snyder v. State Liability Bd. of Awards, supra, was reaffirmed by the Ohio court in Industrial Commission v. Hogle, 108 Ohio St. 363, 140 N. E. 612.

Tbe decision of tbe Ohio court in Snyder v. State Liability Bd. of Awards; supra, was rendered more .than two years before tbe provision of tbe Ohio Workmen’s Compensation Act therein construed was adopted and made a part of tbe Workmen’s Compensation Act of this state. Presumptively, the North Dakota legislature adopted this provision in light of the construction which bad been placed thereon by tbe Ohio courts. 25 R. C. L. pp. 1069, 1010; State ex rel. Dushek v. Watland, supra. In other words, it must be presumed that tbe North Dakota legislature in adopting tbe provision then in force in Ohio, intended to adopt tbe same policy in this state as regards appeals which might be taken by claimants from decisions of tbe Workmen’s Compensation Bureau as then prevailed in Ohio under the same provision. In other words, it must be presumed that the legislature intended to afford a claimant against the workmen’s compensation fund the right of appeal to the courts only in those cases where the Workmen’s Compensation Bureau has taken “final action” upon tbe claim, within the purview of the statute, and such final action has resulted in a denial of “the right of the claimant to participate at all in the workmen’s compensation fund” on one of the grounds enumerated in the statute.

While the decision of the Ohio court in Snyder v. State Liability Bd. of Awards, supra, was not called to our attention at the time of the decision of Gotchy v. North Dakota Workmen’s Comp. Bureau, supra, it will be noted that both cases adopt the same reasoning and reach the same result, as regards tbe scope of judicial review afforded to a claimant against tbe Workmen’s Compensation Bureau. And the rule so announced in these two eases is, we think, clearly in accord with the letter and spirit of tbe Workmen’s Compensation Act. The purpose of that act, according to the express declaration contained therein, was to substitute the remedy therein provided, to tbe exclusion of all others, *644•in providing compensation for workmen, who have sustained injuries 'in tbe course of an employment subject to the act, in all cases where the employer has complied with the law. In such case the employer is relieved from all personal liability, and the injured employee has no legal claim against him, but is entitled to be compensated according to the terms of the Workmen’s Compensation Act, and not otherwise. Whatever compensation is awarded is a charge against and payable out of the workmen’s compensation fund. (State ex rel. Dushek v. Watland, 51 N. D. 710, 39 A.L.R. 1169, 201 N. W. 685.) The bureau is charged with the duty of collecting premiums, administering and disbursing the compensation fund, under the law. It has a “continuing obligation and a continuing duty, after, as well as before the award is made.” Gotchy v. North Dakota Workmen’s Comp. Bureau, 49 N. D. 915, 194 N. W. 666, § 18, supra. The continuing duty of the bureau exists even in cases where the bureau has denied the right of the claimant “to participate at all in the workmen’s compensation fund” on one of the grounds' specified in the statute and its decision has been reversed on appeal. Bor, while in such case the court has power to determine not only the right of compensation but also to fix the compensation within the terms of the act, the judgment becomes conclusive upon the bureau only upon the jurisdictional question of the right of the claimant to participate in the fund at all. And the award made by the court in the judgment is subject to ' the continuing jurisdiction vested in the Compensation Bureau; and in a proper case, “the bureau, after such judgment may increase or diminish the award, or may award a lump sum.” Gotchy v. North Dakota Workmen’s Comp. Bureau, supra. See also Roma v. Industrial Commission, 97 Ohio St. 247, 119 N. E. 461; Industrial Commission v. Davidson, 101 Ohio St. 71, 126 N. E. 876.

The legislature has declared in the most unmistakable terms that “the bureau shall have full power and authority to hear and determine all questions within its jurisdiction and its decisions thereon shall be final.” Section 17, supra. The extent of the injuries of a claimant, who is found to be entitled to participate in the compensation fund, is 'obviously a question within the jurisdiction of the Compensation Bureau, — a question on which the statute says the decision of the bureau “shall be final.” Gotchy v. North Dakota Workmen’s Comp. Bureau, *645supra; Snyder v. State Liability Bd. of Awards, 94 Ohio St. 342, 114 N. E. 270; Industrial Commission v. Hogle, supra.

In the. instant case, the compensation bureau did not find the claim of the plaintiff to be outside of its jurisdiction. There was no denial of “the right of the claimant to participate at all” in the workmen’s compensation fund “on the ground that the injury was self-inflicted, or on the ground that the accident did not arise in the course of employment, or upon any other ground going to the basis of the claimant’s right.” On the contrary, the bureau specifically found that at the time of the injury and prior thereto plaintiff’s employer was a subscriber to the workmen’s compensation fund; that plaintiff sustained certain injury in the course of his employment; and that said injury was not purposely self-inflicted. In this case, therefore, there was a finding by the Workmen’s Compensation Bureau that the claim in controversy is one within its jurisdiction and that the claimant is entitled to participate in and receive compensation from the compensation fund for the specific injury for which he claimed compensation. But the Workmen’s Compensation Bureau further found that the injuries sustained were of such slight character as to entitle the claimant to no compensation except the sum of $4.50 for medical expense. This is the finding which is said to be erroneous and which the plaintiff asked the workmen’s compensation bureau to reopen and reinvestigate and consider anew. The bureau denied the application to reopen,, but in no manner modi-' fied its former findings. The undisputed fact remains that there has been no finding by the bureau that it is without jurisdiction to act in* the matter; there has been no final action of the bureau denying “thh right of the claimant to participate at all in the workmen’s compensation fund on the ground _ that the injury was self-inflicted, or on the ground that the accident did not arise in the course of employment, or upon any other ground going to the basis of claimant’s right.” In' other words, there has been no denial of claimant’s right “to participate' at all in the workmen’s compensation fund” upon one or more of the jurisdictional grounds specified in the statute.

If it is true,- as the plaintiff contends, that the bureau committed an error in its determination as to the extent of plaintiff’s injury, the bureau has the unquestioned power to correct its error (§ 18, supra) as the claim in controversy here was indisputably filed within the time *646provided by law (Laws 1919, § 15, cbap. 162)-. If the injuries sustained by tbe plaintiff were more serious than the compensation bureau believed them to be at the time of their determination it is not only within the power, but it is the duty of the bureau to take such action as will insure that the plaintiff receives such compensation ad he is justly entitled to receive under the provisions of the act. But this power is vested in the Workmen’s Compensation Bureau, and not in the courts; and tk.e duty which arises from the power granted rests upon the bureau and must be performed by it. The legislature has deliberately chosen to abolish all the ordinary judicial remedies formerly existing in cases like the one before us, and to substitute therefor a state insurance fund out of which to compensate employees, who, like the plaintiff in this case, have sustained certain injuries in the course of employment. The legislature has further vested, the Workmen’s Compensation Bureau with full power to hear and make final determination of all questions of fact relating to claims within its jurisdiction; and it has said that a claimant against the compensation fund shall have the right to appeal from and obtain a judicial review of the decisions of the Compensation Bureau only “in case the final action of such bureau denies the right of the claimant to participate at all in the workmen’s compensation fund on the ground that the jury was self-inflicted, or on the ground that the accident did not arise in the course of employment, or upon any other ground going to the basis of the claimant’s right.” Whether these legislative provisions are wise or unwise is not for us to determine. The provisions exist. Their validity is not questioned, and their meaning is, we think, too clear for doubt. It is the duty of the courts to give effect to the intention of the lawmakers as expressed in the law.

It follows from what has been said that the judgment appealed from must be reversed, and the cause remanded with directions to dismiss the action. It is so ordered.

Biedzkll, Nubs sue, JohNSON, and Bukke, JJ., concur.

On rehearing.

OirniSTiANSON, Ch. J.

Plaintiff petitioned for a rehearing. A re-*647argument was ordered. Tbe questions discussed and decided in the former opinion were argued at length and have been carefully reconsidered by this court.

It is first contended that the following statement of facts in the former opinion is incorrect; viz.: “On May 23rd, 1923, the bureau made an order refusing to reopen the matter.” And it is asserted that the Workmen's Compensation Bureau did reopen the case, and after having reopened it denied plaintiff any compensation. We have again examined the record and find the facts to be as stated in the former opinion. The record shows that Crandall, on April 12, 1923, filed an application for review of his claim. After this application was received the bureau arranged to have him examined by certain physicians. At a meeting of the Workmen’s Compensation Bureau held May 23d, 1923, the bureau duly provided for the payment of the expenses of the physicians who had examined the plaintiff, Crandall, and also allowed Crandall the traveling expenses he had incurred incidental to such examination. The' record, also, shows that at the same meeting the following proceedings were had before the Bureau: “Moved by Mr. Elliot and seconded by Mr. McDonald that the application of Sam Crandall for a review of his claim Number 3453 be denied, and *that the claim he not reopened*On the day following, to wit, May 24th, 1923, a notice was sent by the Workmen’s Compensation Bureau to the attorney for the plaintiff, Crandall, wherein it was stated: “We have completed the investigation of the Crandall matter and the evidence before us is of such nature that *we cannot reopen the case.”*

We have again carefully considered the legal questions determined in the'former opinion, and further reflection has brought no change in our views. We are fully convinced that the legislature, by the express terms of the Workmen’s Compensation Act, evidenced an intention to entrust to the bureau, and not to the courts, the determination of the questions which it is sought to have reviewed and determined in this case.

It is contended by the plaintiff, however, that if the Workmen’s Compensation Act precludes judicial review to the plaintiff in this case, that then the act is unconstitutional, in this, that it denies the plaintiff the right to resort to the courts for judicial relief, in violation of § 22 of the state Constitution; and deprives the plaintiff of his property with*648out due process of law in violation of tbe 14th Amendment to tbe Federal Constitution, and tbe counterpart thereof in tbe state Constitution. Tbe constitutional questions tbus urged cannot avail tbe plaintiff bere for two controlling reasons: (1) Tbe constitutional question was not raised in tbe court'below and under well-settled rules cannot be raised for tbe first time in tbis court. (2) Plaintiff’s claim bere arises by virtue of tbe Workmen’s Compensation Act alone. There is no contention that tbe plaintiff would have had any cause of action against his employer if tbe Workmen’s Compensation Act bad not been in existence. Plaintiff’s injuries were sustained by reason of bis slipping on an icy sidewalk. If plaintiff bad any causé of action against anyone on account of tbe condition of tbe sidewalk where be slipped, that cause of action remains wholly unaffected by tbe Workmen’s Compensation Act.' In other words, tbe plaintiff, under tbe undisputed facts bere, is entitled to recover compensation, if at all, solely because the Workmen’s Compensation Act entitles him to recover such compensation. Obviously, tbe plaintiff cannot assert a right to recover compensation based solely upon the statute, and at tbe same time to refuse to abide by, and deny tbe validity of, tbe provisions of tbe statute governing tbe award of stich compensation. 12 C. J. 770 et seq. See also State ex rel. Brontrager v. Mundy, ante, 249, 205 N. W. 684.

We adhere to tbe former opinion. Tbe judgment appealed from is reversed and tbe cause is remanded with directions to dismiss tbe action.

Bikdzell, Bukicb, Nuessle, and Joi-iNsoN, JJ., concur.