#### The State, ex rel. Lourin, *v.*Industrial Commission of Ohio.

(Decided January 28, 1941.)

*Mr. David E. Evans*and *Mr. David A. Peiros,*for relator.

*Mr. Thomas J. Herbert,*attorney general, and *Mr. E. P. Fetker,*for respondent.

G-eigeb, J.

This matter has its inception in this court, wherein the relator files a petition praying that a writ of mandamus may issue commanding the Industrial Commission of Ohio to take certain action prayed for by the relator. The petition states that the Columbus Malleable Iron Company employed Stanley Lourin, the husband of the relator, and paid money into the Industrial Commission for the purpose of insuring its employees; that Stanley Lourin at all times was employed by the Columbus Malleable Iron Company, a contributor to the state insurance fund; that from the year 1930 to September 3, 1937, while working for *301such company, in the course of his employment as a bench molder, making molds from sand, he was exposed to dust, which resulted in his contracting silicosis; that he died on September 15, 1938, from silicosis; that she made application, as widow of the decedent, to the commission for reimbursement for expenses she incurred in his care and funeral expenses.

The commission, on June 2, 1939, made an order to the effect that the commission found decedent’s death was the result of silicosis contracted in the course of and arising out of his employment; that the applicant, Elizabeth Lourin, was his widow, wholly dependent upon him; that the maximum amount of compensation payable herein according to the provisions of Section *1465-68a,*General Code, is $551; and that the commission grants the maximum amount, payable in installments.

Relator further avers: That on September 25,1939, she filed an application for a modification to the effect that the compensation for the death claim should have been allowed and paid in accordance with Section 1465-82, subsection 2, General Code, instead of the latter portion of Section *1465-68a,*General Code. The commission thereupon made the order that the application for modification be dismissed.

It is alleged that that portion of Section *1465-68a,*General Code, which provides certain limitations on the award to the dependent of one dying from an occupational disease is unconstitutional under Section 26, Article II of the Ohio Constitution, and of Section 1, Article XIV, Amendments of the United States Constitution. Relator states that she cannot appeal from the order of the commission, and that unless this court by mandamus compels the Industrial Commission to comply with Section 1465-82, General .Code, she is deprived of her rights and therefore prays that mandamus issue requiring the commission to award her *302compensation as the widow of her deceased husband, under Section 1465-82, General Code.

Respondent, the Industrial Commission, demurs to the petition for a writ of mandamus on the ground that it does not state facts sufficient to show a cause of action entitling the relator to the remedy therein sought.

The relator urges the unconstitutionality of a portion of Section 1465-68», General Code, providing a limitation upon the amount payable to dependents of an employee suffering death as a result of an occupational disease contracted in the course of and arising out of employment, and insists that she is entitled to the same award of death benefits as that provided for in case of death from injury in Section 1465-82, General Code.

Relator asserts that she is not accorded the same protection as is accorded to other persons of the same class, that is, claimants for compensation or benefits arising out of occupational diseases, and counsel sets out at length the various rates of compensation to those suffering from occupational diseases, and concludes to the effect: “Thus the court will see that

the claimants whose claims are based on occupational diseases are not accorded the same protection on account of a varying lapse of time.”

We briefly examine the Constitution, the statutes, and the pertinent decisions.

Section 35, Article II of the Constitution, provides in substance that for the purpose of providing compensation to workmen and their dependents for death, injury, or *occupational diseases,'*occasioned in the course of such workmen’s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, out of which may be paid compensation, or damages for such death, injury or *occupational disease.*This provision, as amended, took effect January 1, 1924.

Section .1465-68», General Code, as amended, effec*303tive July 31, 1937, provides iu substance that every employee who is disabled because of the contraction of an occupational disease, shall, on and after July 1, 1921, be entitled to the compensation provided by Sections 1465-78 to 1465-82, inclusive, and Section 1465-89, General Code.

The statute provides that certain diseases shall be considered occupational diseases and compensable when contracted by an employee in the course of his employment, in which he was engaged at any time within twelve months previous to the date of his disablement and due to the nature of any process described in the statute.

The disease numbered 22 is silicosis, and shall mean a disease of the lungs caused by breathing silica dust, producing the designated result.

It is provided that nothing shall entitle an employee to compensation for medical treatment or funeral expenses for disability or death from silicosis unless the employee has been subject to injurious exposure to silica dust in his employment for a period of at least five years, some portion of which has been after the effective date of the act. Compensation shall be payable only in the event of temporary total disability, permanent total disability, or death, and only in the event of such disability or death resulting within one year after the last injurious exposure. Section 1465-*68a*specifically provides:

“In the event that an employee has been subject to injurious exposure to silica dust (silicon dioxide) in his employment in Ohio for periods amounting in all to at least five years after the effective date of this act, such compensation shall be paid in accordance with the provisions of Sections 1465-79, 1465-81 and 1465-82 of the General Code; but in the event that such exposure after the effective date of this act shall have amounted to less than five years, then the maximum aggregate amount payable for disability, death, *304or disability and death shall not exceed the sum of five hundred dollars plus fifty dollars for each calendar month which may elapse after the effective date of this act and before the month in which disability shall begin but shall not exceed, in any event, the sum of three thousand dollars. * * **”*

Section 1465-68&, General Code, provides that every employee and dependent shall be entitled to all the rights, and subject to all the liabilities provided for injured employees, by Sections 1465-44 to 1465-108, General Code, “save and except Section 1465-90, General Code, which shall not apply to any case involving occupational disease, and also subject to such other modifications or exemptions hereinafter provided. ’ ’

Section 1465-90, General Code, provides in general for the jurisdiction of the commission, its hearing and rehearing, and the filing of the petition in the Common Pleas Court upon the transcript of the record taken before the commission, all of which is familiar proceeding in Industrial Commission cases.

The heart of the controversy is whether the Legislature, under the exercise of its power, given by the Constitution, may provide a different and frequently a less rate of compensation for the death of one who has suffered from an occupational disease than is paid on account of the death of one who may have suffered an accident.

The contention of the relator is that the discrimination so made, not only on account of the compensation to be paid to those dying from an occupational disease, but also on account of a marked variation between compensation granted to those suffering from occupational diseases based upon the length of time that they may have been employed, renders the exception to which wo have called attention, unconstitutional and void, and that those workmen suffering from occupational diseases and dying as a result thereof should be com*305pensated to the same extent as those who are the victims of accident, injury, and death.

On the other hand it is claimed by the respondent that it is entirely within the authority of the Legislature to provide for compensation of those suffering occupational disabilities, different from and less than that provided for accidental injury or death.

Our first observation directs our attention to Section 35, Article II, Constitution, which provides:

“For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen’s employment, laws *may be*passed establishing a state fund to be created by compulsory contribution thereto * * (Italics ours.)

For quite a period the Legislature neglected to exercise its power to provide compensation for occupational diseases, and the question was never raised that under the Constitution it was obliged to provide such relief or to fix the rate.

We do not propose to go into any lengthy discussion of workmen’s compensation, but shall refer briefly to certain cases that may bear upon the question involved.

*Industrial Commission*v. *Brown,*92 Ohio St., 309, 110 N. E., 744, holds in paragraph two of the syllabus that:

“Although Section 35, Article II of the Constitution, as amended in September, 1912, authorizes the Legislature to pass laws providing an insurance fund to compensate workmen and their dependents for death, injuries or occupational disease, occasioned in the course of employment, by compulsory contribution, the General Assembly has not yet provided by law for the compensation for injury or death from occupational disease.” ■

Nichols, C. J., delivering the opinion of the court, on page 316, quotes from *Adams*v. *Acme White Lead & Color Works,*82 Mich, 157:

*306“ * * We are not able to find a single case where an employee has recovered compensation for an occupational disease at common law. Certainly it can be said that in this state no employer has ever been held liable to the employee for injury from an occupational disease, but only for injuries caused by negligence. It seems to us that the whole scheme of this act negatives any liability of the employer for injury resulting from an occupational disease. ’ ’ ’

This opinion was delivered before the occupational disease statute was passed.

*Thornton*v. *Duffy,*99 Ohio St., 120, 124 N. E., 54, holds in paragraph one of the syllabus:

“The enactment of the workmen’s compensation law (103 Ohio Laws, 72 to 92), did not exhaust the authority conferred upon the General Assembly of Ohio by Section 35 of Article II of the Constitution. On the contrary, it has the power to amend or repeal all or any portion thereof at any time it deems proper.”

*Maxwell Motor Corp.*v. *Winter,*118 Ohio St., 622, 163 N. E., 198, holds in paragraph one of the syllabus:

“Sections 1465-68a, 1465-68& *et seq.,*as enacted in 1921 # * * known as the occupational disease act extends the benefit of workmen’s compensation to an employee who suffers a disability due to’an occupational disease and entitles him to receive the benefits of Section 1465-76, General Code.”

This section, 1465-76, General Code, was repealed in 1931.

*Bozzelli*v. *Industrial Commission of Ohio,*122 Ohio St., 201, 171 N. E., 108, holds, in effect, that the rights of employees and dependents to recover compensation from, and participate in, the state insurance fund rests-, not upon the principles of the common law, but upon the grant of the legislative authority and are only such as may be conferred by the Workmen’s Compensation Law.

*307*Adkins*v. *Staker,*130 Ohio St., 198, 198 N. E., 575, holds in paragraph one of the syllabus:

“The chief purpose of Section 35, Article II of our state Constitution, is to levy compulsory contributions upon employers in order to establish a state fund for providing compensation to workmen or their dependents. Under the provisions of that section the Legislature has been invested with the power of ‘determining the terms and conditions upon which payment shall be made ’ out of the fund. ’ ’

The case upon which respondent confidently relies is that of *State, ex rel. Jonak,*v. *Beall et al., Industrial Commission,*136 Ohio St., 213, 24 N. E. (2d), 826, in paragraphs one and tw;o, says:

“1. That part of Section 1465-685, General Code, reading ‘save and except Section 1465-90, General Code, which shall not apply to any case involving occupational disease,’ violates neither the Constitution of Ohio nor the Fourteenth Amendment of the Constitution of the United States.

“2. Where the General Assembly, by appropriate legislation authorized by the Constitution, grants certain rights, not theretofore enjoyed, to employees in respect to occupational disease claims and at the same time withholds certain other rights, this court cannot grant such rights which the Legislature failed to give. ’ ’

This case revolved about the exclusion of the authority of Section 1465-90, General Code, and related solely to that portion thereof which in accident cases permitted a rehearing and appeal and a trial before a jury, and the court holds on page 218:

“We hold that the General Assembly was within its constitutional authority in the enactment of that part of Section 1465-685, General Code, questioned by relator in the instant case.”

Zimmerman, J., concurring in the above, bases his reasoning upon the case of *State, ex rel. Slaughter,*v. *Industrial Commission,*132 Ohio St., 537, 9 N. E. (2d), *308505, wherein the definite statement is made on page 542:

“The General Assembly’s authority to pass legislation creating a state fund by compulsory contribution thereto by employers to compensate workmen and their dependents for disability or death suffered by such workmen in the course of their employment, is contained in Section 35, Article II of the Ohio Constitution. A part of that section reads:

“‘Laws may be passed establishing a board * * * to collect, administer and distribute such fund, *cmd to determine all rights of claimants thereto.’*(Italics ours.)”

It seems to us quite manifest that, under the constitutional provisions, the Legislature has a right to pass such legislation as it may determine upon, in reference to compensation for occupational diseases and to omit certain beneficial provisions that might relate to death from accident, and withhold them from the compensation for occupational disease, and that as to the occupational disease it has full power to provide such compensation and death benefits as may seem just even though it might result in a different compensation to dependents of two workmen, each of whom died from an occupational disease, but one of whom might have been longer employed in the occupation than another.

We do not find that that portion of the section claimed to be unconstitutional is violative of the provisions of the Constitution, and we, therefore, sustain the demurrer. This would permit an amendment to the petition or a final order, if the relator does not wish to plead further.

*Judgment accordingly.*

Hornbeck, P. J., and Barnes, J., concur.