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September 9, 1935

NORTON Deputy Commissioner, et al. (two cases)

Supplemental Opinion.

Since writing the above we have been favored with a supplementary brief on behalf of the plaintiffs which discusses with marked ability a phase of the case which we did not have in mind in formulating the conclusions above stated. This feature is brought out by a comparison of the following dates:

March 3, 1934. Monahan order made.

April 2, 1934. This order under the provisions of the then law became final.

 May 26, 1934. Amendment providing for the opening of proceeding within one year (33 U.S.C.A. ยง 922).

 The point made is that the amendment does not apply to orders which had become final before the passage of the amending act.

  The propositions advanced are:

 (1) The Monahan order became final nearly two months before the amended act was passed.

 (2) Thereafter the employer had in the order what is called "a vested right."

 (3) The act does not apply to proceedings which had been concluded and the order in which had become final before the act was passed.

 (4) If it does apply, it is unconstitutional under the Fifth Amendment to the Constitution of the United States.

 Under the law as it then was, it must be conceded that the award was not only final in the appellate sense but it had become a finality. If the law had not been amended, neither the commissioner himself nor his successor had jurisdictional power to reopen the case after April 2, 1934. Just what it meant or gained by ascribing to a debtor a vested interest or a property right in the debt he owes is not altogether clear. It is intelligible enough to say that the employer's money is his property and that he cannot be deprived of it without due process of law.

 [3] This plaintiff has been deprived of some money by one order of the commissioner, and it is proposed to deprive it of more by another order. It is not denied that the first deprivation was in pursuance of due process of law. The sole question is whether the second is also. If the amendment of 1934 has no application, the second award was not due process. It must likewise be conceded that retroactive laws, like ex post facto laws, are thought by many people to be unjust. The former, however, may be classed as in line with due process of law, although the latter may not be. It must likewise be conceded that in deference to the general judgment of their injustice laws are not given a retroactive effect unless such be their real meaning. The question then is whether this law was meant to apply to this kind of a case. This case is clearly within its verbiage. The act is not limited to cases thereafter arising because it applies to cases "whether or not a compensation order has been issued," and as a year's time is given for the reopening, it must necessarily extend to cases in which the order is older than thirty days. There is, moreover, a distinction between an appeal or review of an entered order and a reopening of the proceeding in which the order was made. The first challenges judgment of the order on the facts and the law as of the time when made; the second proceeds upon a new state of facts brought to light a year or more after the order was made and results in a new order. The difference is that between the allowance of an appeal and the granting of a new trial. The first was limited, and still is, to thirty days; the latter has a much longer time. The reopening review is allowed of any case, and this means the instant case.

 The argument is thus reduced to that of the unconstitutionality of the act. We assume the taking of property without just compensation provision does not apply. What is relied on is the due process clause. No state can pass an act which impairs the obligation of debt. The inhibition does not apply to Congress. What the law does is to lend its aid to the enforcement of a claim of debt. It may impose such conditions as are deemed wise. Among those imposed are limitations of time within which an action may be brought and after which it cannot. The amendment in question is a mere extension of the time. The old act limited the reopening, among other things, to the time of "the term of the award." The amended act substitutes the year limit. The old act, however, allowed it "after the compensation order had become final."

 The cited cases which were ruled before the act have no application nor the cases which refer to an appeal review as distinguished from an application to reopen.

 We adhere to the conclusion before reached that the commissioner had the jurisdictional power to reopen the order which had before been made.

 There is a reiteration of the point before made that the commissioner could not make the order in the form in which made. As before stated, we did not have access to the orders to determine their form. At the argument at bar it was pointed out that the respective arguments addressed to us were based on different fact situations. One was that the commissioner, in a compensation proceeding against one employer for an injury sustained in such employment, had made an order against another prior employer because a like injury had been sustained in the first employment resulting in two judgments against different defendants in one action. The other was that there had been reopened, and was therefore pending, a proceeding against one employer for an injury received during that employment. There was likewise pending another proceeding against another subsequent employer for a like injury received during the latter employment. For convenience, the two compensation claims were disposed of at one hearing, but each was determined as an independent proceeding. We are doing that very same thing now. It was agreed at bar that the instant case was of the latter type, and we have so determined it. Notwithstanding this, the case is treated as of the first type, and consequently the argument made is based upon a record situation which does not exist.

 To give definiteness of date to the decrees allowed, none are now made, but leave is granted to enter decrees dismissing the bills, with costs, for want of equity.


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