# Lucedale Veneer Co. v. Rogers > Mississippi Supreme Court · October 23, 1950 · 211 Miss. 613 URL: https://www.frixlaw.com/law-library/cases/9538340 ## Case - **Full name:** Lucedale Veneer Co. v. Rogers - **Court:** Mississippi Supreme Court - **Decided:** October 23, 1950 - **Citations:** 211 Miss. 613; 48 So. 2d 148; 1950 Miss. LEXIS 356 - **Precedential status:** Published - **Opinion:** Dissent by Alexander - **Judges:** Lee, Kyle, McGehee, Alexander, Roberds - **Cited by:** 44 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9538340 ## Opinion text Alexander, J. (dissenting). The experience of years of operation under workmen’s compensation statutes disclosed a necessity for placing hernia cases in a special category. Except where the origin was definitely traumatic the incidence and cause of the disability were susceptible of proof only by the injured workman. It was learned that a predisposition to hernia may follow a predestined course and mature into actual rupture at a given time, without regard to the nature of the work then being performed. Our Workmen’s Compensation Law contains a special paragraph dealing with hernia. 5 Miss. Code Supp., Section 6998-12. In line with other state statutes our Legislature sought to remove doubt as to a proper relation between the work and the hernia by requiring proof of more than mere coincidental injury. The hernia must follow “as the result of sudden effort, severe strain” or trauma. Most of the diagnostic symptoms are subjective and the Legislature saw fit to require certain circumstantial evidences, which the history of such cases had disclosed as the usual, if not inevitable, indications. It must be kept in view that hernia is not per se compensable. I am of the opinion that this Court by reviewing the conflicting- testimony, has in effect, tried the case de novo. We are without power so to do, and more to the point, the circuit court lacked such authority. The factual prerequisites in this sort of case are set out in the controlling opinions. There was testimony as to which the Commission could reach alternate conclusions. By emphasizing some of the testimony and disregarding other parts, support for any view may be *641 found. Some of the witnesses testified that the pieces of veneer weighed np to eight or ten, pounds, others only a few ounces. "We seem to have chosen to assume the maximum weight. However, there are several respects in which it would seem the Commission was compelled to find as it did. These relate to the failure of the appellee to show “to the satisfaction of the Commission” Items 1, 3 and 4. The definition of “severe pain” under paragraph 2 may not be definite, hut when an applicant, who is alert to do himself no disservice by understatement, measures his agony by the test of a “bee sting”, the least we can say is that the Commission was untrammeled in its right to adjudge whether this prerequisite was “shown to the satisfaction” of the Commission. "What is not to escape repeated emphasis, however, is that neither the circuit court nor this Court can revise a factual finding made by the Commission on substantial testimony. The Commission is an administrative body exercising executive functions. It is pro hac vice an extended arm of the Legislature. Compare Stone v. Farish, 199 Miss. 186 , 23 So. (2d) 911 . Review of its findings of fact ought not to be allowed so long as they are based on substantial testimony. Neither the Circuit Court nor this Court may sit as an administrative board. California Co. v. State Oil & Gas Board, 200 Miss. 824 , 27 So. (2d) 542 , 28 So. (2d) 120 . The only function which may be exercised by the circuit court, and in turn by this Court, is a judicial one. A judicial question may here arise only when it appears that the Commission acted without supporting evidence, that is to say, capriciously or arbitrarily. City of Meridian v. Davidson, Miss., 53 So. (2d) 48 . We have, in defending* administrative boards against a review of its discretion and judgment based on substantial testimony, struck down, as unconstitutional, a requirement that such appeals shall be heard de novo. California Co. v. State Oil & Gas Board, supra. Such is the force of these *642 considerations that this Court has expressed itself as to the necessity for striking* out a provision for a jury trial upon an appeal from a decision of an administrative hoard. City of Meridian v. Davidson, supra. The vice of a hearing’ de novo is found to beset the provision for review by a jury. These observations are in point in view of the contention that under Section 20 of Chapter 354, Laws of 1948, “The circuit court shall review all questions of law and of fact”. A later provision also assails the finality of the commission’s finding: “If prejudicial error be found, the same shall he reversed and the circuit court shall enter such judgment or award as the commission should have entered”. To save these provisions from constitutional defect they must be construed to mean that a judicial question arises only when the order of the commission is not “supported by substantial evidence, is arbitrary or capricious, beyond the power of the [Commission] to make, or violates some constitutional right of the complaining party”. California Co. v. State Oil & Gas Board, supra [ 200 Miss. 824 , 27 So. (2d) 545 ]; Dixie Greyhound Lines, Inc., v. Mississippi Public Service Comm., 190 Miss. 704, 705 , 200 So. 579, 580 , 1 So. (2d) 489 . The controlling opinion accepts the latter statutory provision without question. It construes it as permitting a review de novo. This results in constituting the circuit court as a court of review of the administrative or legislative functions of the Commission. It allows the circuit court and this Court to abandon its judicial robes and sit amid the councils of administration not only, hut to “reverse the order of the commission in a case where the court found that such order was based upon findings of fact which were contrary to the weight of the evidence”. Such would be a hearing de novo. This, indeed, was the basis for the finding by the circuit court. Under our decisions this is not enough. A finding* of no evidence is judicial; a disagreement as to the weight of conflicting evidence is not so. To the Commission was delegated the right and responsibility to determine issues of fact. *643 The legislative intent was obviously to make adjudications by the commission administrative acts, which are and ought to be final unless the bases therefor either in law or fact raise a question that is purely judicial. These views find additional support in the procedure for hearing on appeal. 5 Miss. Code Supp., Section 6998-26. “Appeals shall be considered only upon the record as made before the commission . . . If no prejudicial error be found, the matter shall be affirmed . . . ” Obviously this contemplates an error in law, for only such errors may be judicially reviewed. 58 Am. Jur., Work. Comp., Secs. 483, 530. Cases dealing with the principles of administrative law are moving with visible and irresistible force toward the concentration of responsibility and authority in fact finding boards. No matter what the scope of the duties of a particular board, it is protected against judicial review wherever a reasonable decision is bottomed upon reasonable testimony. If remedy is desired, the appeal is to the legislature not the courts. Judge Hand, in speaking for the Circuit Court of Appeals, 2nd Circuit, stated “. . . the Supreme Court has as much circumscribed our powers to review the decisions of administrative tribunals in point of remedy, as they have always been circumscribed in the review of facts. Such tribunals possess competence in their special fields which forbids us to disturb the measure of relief which they think necessary. In striking that balance between the conflicting interests involved which the remedy measures, they are for all practical purposes supreme.” Herzfeld v. Federal Trade Commission, 140 F. (2d) 207, 209. This view is reinforced by John Siegel Co. v. Federal Trade Commission, 327 U. S. 608, 612 , 66 S. Ct. 758, 760 , 90 L. Ed. 888 , where it is stated, “It [judicial review] extends no further than to ascertain whether the commission made an allowable judgment” (in its choice of the remedy). It is found in Thomas v. Pennsylvania R. Co., 162 Md. 509, 514 , 160 A. 793 , 795 *644 that ‘ ‘ In nearly half of the state acts in this country and in federal acts, finality is given to findings of the commission on facts”. Certainly a uniform practice in respect to the review of all our administrative hoards is desirable. Such uniformity is compelled by our duty to confine judicial and administrative functions within their respective limitations. Up to this time such uniformity has been achieved, with respect to the Public Service Commission, Dixie Greyhound Lines v. Mississippi Public Service Comm., 190 Miss. 704 , 200 So. 579 , the Oil and Gas Board, California Co. v. State Oil & Gas Board, 200 Miss. 824 , 27 So. (2d) 542 , 28 So. (2d) 120 , and a Municipal Civil Service Commission, City of Jackson v. McLeod, 199 Miss. 676 , 24 So. (2d) 319 ; City of Meridian v. Davidson, Miss., 53 So. (2d) 48 , the State Tax Commission, Stone v. Farish, supra. We have here made the Commission a mere ante-room to the circuit court and the latter but a way station on the route to this Court where the issues of fact remain open for re-examination, and during which hearing the members of this Court become pro hac vice the Workmen’s Compensation Commission. This ought not so to be. Roberds, J., joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9538340. Public record. Not legal advice.