The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1924-11-17
EXTRAPENALTY
BY RISK BODY
HELD INVALID
Court Rules Employer Has
the Right of a Judicial
Review Guaranteed
LAW HELD VALID

The supreme court, in an opinion,
finds unconstitutional that portion of
the North Dakota laws which provides
that so percent penalty attaches to
an employer who fails to pay an
award made by the Bureau within 10
days, in cases in which the employer
had not insured with the Bureau. The
court rendered its decision in the
case of A. J. Dushek against 7. Wat
land and others, doing business as
tire Independent Grain Company, the
case being appealed from Benson
county. The district court judgment
was modified and affirmed.
| Dushek was injured while, he
claimed, he was employed by the
grain company, which had not COM
piled with the law and taken out in
surance with the state bureau. In
such cases, the law provides that the
Bureau may be asked by the employe
to fix the amount Of compensation,
and if the employer fails to pay the
compensation within 10 days 80 per-
cent of the award shall be added.
Dushek was awarded $2,54300, and
the company failing to pay within 10
days, was ordered to pay so percent
additional, and interest.
The grain company, in the case.
contended that Dushek was not an
.employe but in all respects except as
to the penalty the decision Of the dis
trict court was affirmed.
The grain company contcndcd that
section IL of the Workmcn's Com
pensation Law providing for the i'm
position of the so percent penalty
was in violation of the constitutional
guarantees of due process and equal
protection under the law. The court
held that while an employer was
granted review by court, the effect Of
the Today rule was that he would
be penalized 80 percent If the court
decisions were adverse.
Courts View
'In our opinion" the court said in
decision written by Justice Christ
ianson, "thc provision as SO con-
strued is in effect denial Of that
right to judicial review to which an
employer is entitled under our con-
stitution."
"Thc award Of the Compensation
Bureau against non-complying en-
ploycr is not final or conclusive upon
the fundamental or jurisdictional
questions involved in the award; but
such questions arc subject to judicial
review; and, in an action to enforce
the award the defendant employer
may assert as defense any fact
tending to show that the alleged in
juries for which the award was made
were not subject to the operation of
the Workmen's Compensation Act,
and hence, that the claim was not
within the jurisdiction of the Com
pensation Bureau" the court held,
and continues:
"The legislature may not Indirect
ly deprive party Of due process or
equal protection of the laws by i'm
posing such conditions upon the
right to appeal to the courts as to
intimidate the person affected from
exercising such right; and where the
findings of an administrative bur-
eau, as to matters concerning which
party affected is constitutionally
entitled to an opportunity of judicial
review, are made subject to such re-
view only on the condition that if the
party is unsuccessful in the courts
he shall pay large penalty, there
is not afforded that opportunity of
judicial review guaranteed by the
constitution"