# Opposition Brief — Allen v. Glenn L. Martin Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1947
- **Citation:** 332 U.S. 749

## Text

In THE

Supreme Court of the United States —

Octoser Term, 1947

No. 267

ROBERT ALLEN, Claimant, Appellant,
v

THE GLENN L. MARTIN COMPANY, Employer, and
GLOBE INDEMNITY COMPANY, Insurer, Appellees.

No. 268

FRANK G. HYMAN, Claimant, Appellant,
v

ROBB TYLER, Employer, and EAGLE INDEMNITY
COMPANY, Insurer, Appellees.

No. 269 ’
JAMES BENONI, Claimant, Appellant,
v.
BETHLEHEM FAIRFIELD SHIPYARD, INCORPOR-

ATED, Employer, and MARYLAND CASUALTY
COMPANY, Insurer, Appellees.

On APPEALS FROM THE Court OF APPEALS OF MARYLAND

BRIEF IN OPPOSITION TO MOTIONS TO
DISMISS APPEALS.

PAUL BERMAN,
| SIGMUND LEVIN,
THEODORE B. BERMAN,
Counsel for Appellants,

110 East Lexington Street,
Baltimore 2, Maryland.

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CITATIONS

TABLE OF CASES

PAGE
Abie State Bank v. Weaver, 282 U. S. 765.................... 10
Aetna Life Ins. Co. v. Dunken, 266 U. S. 389................ 9
Arizona Copper Co. v. Hammer, 250 U. S. 400.......... 27, 29
Baltimore Tube Co. v. Dove, 164 Md. 87, 100................ 18n
Baltimore & Philadelphia Steamboat Co. v. Norton,

284 U.S. 408... sais tenasepicaciietinadiasan ta iicasenlasis 31
Bi-Metallic Investment Co. v. State Board of —

ization, 239 U. S. 441 10
Boyd v. Thayer, 143 U.S. 135... “ ee 9
Bridge Proprietors v. Hoboken Co., 1 Wall. 116.......... 7
Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281

Bs i TIES ciced cess Sonos piitendibehdbaaapreiactiaduchimedls deletion 11
Broad River Power Co. v. South Carolina, 281 U. S.

537, (affmd. on rehearing, 282 U. S. 187).............. 10
Burns Mortgage Co. v. Fried, 292 U. S. 487.................. 13n
Carmichael v. Southern Coal & Coke Co., 301 U. S.

MD spk cher haodcs ist iakvidcetdstinecs cosnsasvsnsvevuosesssecesstees 14n
Carter v. Testas, 177 U. &. 442.0... .ccccccccecessetecsseccessecenees 10
Concordia Ins. Co. of Milwaukee v. School Dist. No.

A BRI ig neinsiasiensier Dh dnahideigielictiatea the Marian 13n
Corn Products Refining Co. v. Eddy, 249 U. S. 427... 7
Covington and Lexington Turnpike Co. v. Sandford,

Ns I dl Gis nienieterineticanteheckeinn BE tbsachanlediindh 9
Cudahy Co. v. Parramore, 263 U.S. 418.................... . 8,29

Dahnke-Walker Ne Co. v. Bondurant, 257 U. S.
SI scicniugiiivigsh cadicoorinime poets wichita pala Dtaeslialeaatint 7

Eureka Pipe Line Co. v. Hallanan, 257 U. S. 265..........
First National Bank v. Anderson, 269 U. S. 341...
Fiske v. Kansas, 274 U.S. 380.0000.
Flournoy v. Wiener, 321 U. S. 253.0000

Fox River Paper Co. v. Railroad Commission of Wis-
IY es a ne ae

General Oil Co. v. Crain, 209U.S.211.....
Glenn v. Field Packing Co., 290 U. S. 177..

Great Northern Ry. Co. v. Sunburst Ol & Refining
Co., 287 U. S. 358... 2%

Greenough v. Tax Assessors of sical of peers 67
S. Ct. 1400... :

Gregg Dyeing Co. v. Query, 288 U. sie a a
Hawkins v. Bleakly, 243 U.S. 210.0...
Hawks v. Hamill, 288 U.S.52.......

Hicklin v. Coney, 290 U.S. 169.0000.
Highland Farms Dairy, Inc. v. Agnew, 300 U. S. 608.

Industrial Commission of Wisconsin v. McCartin, 67
REISE EN EGR ae Mara ee eae

Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571...
Lauf v. E. G. Shinner & Co., 303 U. S. 323, page 338...

sees" ¢~ bespaage decgenmmpaaaaal v. Locke, 60
F. 2d 35...

McCullough v. Virginia, 172 U. S. 102

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iii

Madera Sugar Pine Co. v. Industrial Acci. Comm. of
Ca, Bree Oa I iii eis oesses cevseredectivgstarre 10, 29

Mattson v. Department of Labor and Industries, 293
AT RTE Phe es i SEL ee 10

Middleton v. Texas Power & Light Co., 249 U. S. 152. 10
Midland Realty Co. v. Kansas City Light & Power

eG CGR NER aie na ae Ree 14n
Miller v. McGraw Co., 184 Md. 529.00... 5
Mitchell v. Clark, 110 U. S. 633...............0...0.cceeees 9

Moorehead v. People of New York, ex rel Tipaldo,
I ile Rs i ccactdihcinscetae haha glltiacishs aah, Seki taaeie as

Mountain Timber Co. v. Washington, 243 U. S. 219... 27
Murdock v. Memphis, 20 Wall. 590.000.000.000... 10
New York Central Railroad Co. v. Bianc, 250 U. S.

New York Central Railroad v. White, 243 U. S.
OE ys cited ete ee 3, 21, 23, 24, 25, 27, 28

North Laramie Land Co. v. Hoffman, 268 U. S. 276... 11
Northern Pacific R. v. North Dakota, 236 U. S. 585... 9

Norton v. Travelers Insurance Co., 105 F. 2d 122........ 22
Panama Refining Co. v. Ryan, 293 U. S. 388............... 30, 31
Pollock v. Williams, 322 U.S. 4..0.............cccccccceeeeeeeeees 10
Quong Ham Wah v. Industrial Accident Commis-

ane Te Gi GR tiie ba thcintcaintencpetabnniin ci 10, 11,12
Sheehan Co., R. E. v. Shuler, 265 U. S. 371.................... 10
a SS Se 14n
St. Louis, etc. R. Co. v. Wynne, 224 U. S. 354................ 8

Schechter Poultry Corp. v. United States, 295 U. S.
ee 30, 31

——e

iv

Solvuca v. Ryan & Reilly Co., 131 Md. 265................ 24
Standard Oil Co. of California v. Johnson, 316 U. S.

OPEC ESN RES TOP REY ie Oe es J LENS Ae es CORD IS 10
Starks Realty Co. v. sharnersalenstibed 255, 101 S. W.
a ee cacheahlionts 22n
Staten Island Rapid T. Ry. Co. v. Phoenix Indemnity
RG ES tre ee CORD Oe 2 are 10
Thornton v. Duffy, 254 U. S. 361........... baci VO de Ws 3 10
Townsend v. Bethlehem-Fairfield ss OE Inc., A.
ga Re siciestit widbieieralaial 3, +4, 5, 18n, ‘19n, 20, 22
United Fuel Gas Co. v. Hallanan, 257 U. 5. 277............ 8
United States Coal & Coke Co. v. Jones, 261 Ky. 235,
RIES Te MeO pear es SERRE OT aCIOeD
Wallins Creek Collieries v. Jones, 214 Ky. 775, 283 ,
a ectapneli 22n
Ward v. Love County, 253 U. 8.170000. 10
Ward & Gow v. Krinsky, 259 U. S. 503.................. svosena 8
Western Union Telegraph Co. v. Kansas, 216 U.S. 1. 7
Sn Ge SNE SEF Wie I be cetescndceserscivciesevéscodcbovewosdeues 10
Statutes
Judicial Code, Section 237(a) [28 U. S. C., sec.
RSET SAPS ORDERS se ec Pe AOI 6, 7,8
Longshoremen’s and Harbor Workers’ Compensation
Act, 33 U.S. C., secs. 908(21) and 914(m)........... 22
Annotated Code of Maryland (Flack’s 1939 Ed.) :
I Ts CE I ask sa cae ceciis ctotevecttnrsecicacosensog 18
BD Bs Bs GR eresscctssiheecsccorvnctonrcspevoestnoneccets 17, 21n
Kentucky Rev. Stats., Baldwin’s 1943 Rev., Ch. 342,
Workmen’s Comp., sec. 342.110..................... 22n

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In THE

Supreme Court of the United States

Octroser TeRM, 1947

TE scicihodadiesin
ROBERT ALLEN, Claimant, Appellant,
Vv

THE GLENN L. MARTIN COMPANY, Employer, and
GLOBE INDEMNITY COMPANY, Insurer, Appellees.

A tisestece cain
FRANK G. HYMAN, Claimant, Appellant,
v

ROBB TYLER, Employer, and EAGLE INDEMNITY
COMPANY, Insurer, Appellees.

OE cde hat peciti
JAMES BENONI, Claimant, Appellant,
Vv

BETHLEHEM FAIRFIELD SHIPYARD, INCORPOR-
ATED, Employer, and MARYLAND CASUALTY
COMPANY, Insurer, Appellees.

On APPEALS FROM THE CourRT OF APPEALS OF MARYLAND

BRIEF IN OPPOSITION TO MOTIONS TO
DISMISS APPEALS.

STATEMENT.

In view of the fact that the federal questions presented
in each of these three cases are the same, and the motions
of appellees in all the cases to dismiss the appeals and their
supporting briefs are identical in their grounds for dis-

a

missal and argument, appellants respectfully submit this
single brief in opposition to the motions to dismiss the ap-
peals as applicable to all three cases.

ARGUMENT.
I

The Lower Court’s Judgments on its Decisions constru-
ing and applying as construed the “Other Cases” Provision
of the Maryland Workmen’s Compensation Act are based
solely upon thé rejection of rights seasonably asserted by
Appellants under the Federal Constitution.

Appellees’ first ground for the dismissal of these appeals,
namely, that the judgments sought to be reviewed are “not
based upon a Federal ground adequate to support a review”
by this Court, necessarily ignores that the decisions below
construed the “other cases” provision of the Maryland
workmen’s compensation act and applied and enforced it
as thus construed in the proceedings involving appellants’
claims for compensation for their permanent disabilities,
against distinct and timely insistence by each of appellants
that the statutory provision as thus construed was void
under Section 1 of the 14th Amendment to the federal Con-
stitution. Moreover, there was no nonfederal ground in-
voked by the court below, or even discussed by it, in deny-
ing the challenge to the constitutional validity of the statute
as thus construed, and in affirming the awards made under
the statute as thus construed for the conceded permanent
disabilities of appellants resulting from injuries admittedly
arising out of and in the course of their respective employ-
ments.

As hereinafter more fully shown under Point II discus-

sing the substantiality of the federal questions involved in
these appeals, it is respectfully submitted to be beyond

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_

question that state workmen’s compensation statutes,
abridging, as they do, fundamental rights and remedies of
the employee as well as his employer, must not in their
operation or as applied and enforced against employees
and their claims for compensation be arbitrary, unreason-
able or capricious. When they are, they cannot escape con-
demnation as violative of the rights guaranteed against im-
pairment by the 14th Amendment. This Court has held
that state workmen’s compensation legislation “cannot be
supported except on the ground that it is a reasonable exer-
cise of the police power of that state”. New York Central
Railroad Co. v. White, 243 U. S. 188, 206. So that no argu-
ment is required to demonstrate that if the “other cases”
provision of the Maryland act, as construed by the court
below and as applied and enforced in these cases, is arbi-
trary, unreasonable or capricious, or on its face reveals an
inconsistency with the requirements of due process of law
or an unwarranted delegation of power such as the Mary-
land legislature itself, in the first instance, could not con-
stitutionally have made, it necessarily follows that funda-
mental rights of appellants have been abridged and they
have been deprived of these rights and their property with-
out due process of law.

The Statement as to Jurisdiction in each of these cases
shows that while they were pending on appeal from the
Industrial Accident Commission of Maryland to nisi prius
courts in Baltimore City, the “other cases” provision of the
act, which had theretofore received construction at the
hands of the court below, and under which provision each
of these cases concededly is compensable, was further con-
strued in Townsend v. Bethlehem-Fairfield Shipyard, Inc.,
47 A. 2d 365, decided May 14, 1946. The further construc-
tion of the provision by that decision included, among other
amendatory interpretations, language terminating, for all

4

practical purposes, the theretofore existing statutory right
of appeal from decisions of the Commission making awards
under the “other cases” provision. Whereupon appellees
filed in the nisi prius courts where the respective appeals
from the Commission were pending motions to dismiss
them under the authority of the provision as thus further
construed in the Townsend Case.

Thereupon, as further shown in the Statements, each
appellant seasonably challenged as constitutionally invalid
under the 14th Amendment the “other cases” provision of
the act as construed in the Townsend Case and as appellees
by the grounds asserted in their motions to dismiss the
appeals to the nisi prius courts were attempting to have
it applied and enforced in these cases.

The grounds of challenge were that under the “other
cases” provision, not as enacted but as construed by the
court below, the Industrial Accident Commission of Mary-
land was given unlimited authority and discretion to allow
compensation without any prescribed guide, rule, basis or
standard reasonably adapted to produce a fair result, and
an unbridled and definitive discretion to accord to claim-
ants discriminatory treatment, and therefore the “other
cases” provision as thus construed was void on its face as
being inconsistent with the requirements of due process
and as constituting an unwarranted delegation of power
such as the legislature itself, in the first instance, could not
constitutionally have made, and its enforcement, operating
to limit the amounts of the awards of compensation to
appellants to $750, $650 and $750, respectively, for their
conceded permanent partial disabilities, abridged the fun-
damental rights of appellants and deprived them of their
property without due process of law and denied them
the equal protection of the laws, and, particularly, de-
prived them of their rights to adequate and reasonable com-

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= 5

pensation or damages to be arrived at under reasonable and
valid legislation or by the proper and lawful processes of
the common law. Denying that challenge, the nisi prius
courts and the court of least resort of Maryland sustained
the validity of the “other cases” provision as it had been
further construed in the Townsend Case and adopted and
applied a similar construction in the instant cases.

Appellants do not, as appellees urge, seek to have this
Court place any construction on the meaning and effect of
the “other cases” provision of the Maryland statute. Ap-
pellants’ sole contention here is that the “other cases” pro-
vision, on its face and as construed and applied to appel-
lants’ claims for compensation for their injuries and en-
suing disabilities by the lower court, contravenes the due
process and equal protection clauses of the 14th Amend-
ment for the reasons already given herein and as shown
in the Statement as to Jurisdiction.

It is true that in the Statement appellants point out,
merely, however, in the interest of accuracy and so that
this Court might be apprised of the complete background
of this litigation, that the “other cases” provision as en-
acted expressly provided that in cases compensable under
it each claimant was to receive for his permanent partial
disability compensation at a prescribed rate “payable dur-
ing the continuance of such partial disability, but not to
exceed three thousand dollars.” This unequivocally ex-
pressed the clear and unambiguous intent that the legisla-
ture of Maryland considered that in cases of permanent
partial disability compensable under the “other cases” pro-
vision, as the case of each appellant was, a reasonable and
adequate amount of compensation was $3,000. Indeed, this
legislative pronouncement plainly reflecting its obvious in-
tention was recognized by the court below in Miller v.
McGraw Co., 184 Md. 529, where it is said (at page 540):

“Although the statute prescribes that these payments shall
be made ‘during the continuance of such partial disability’
and the subsection we are now discussing pertains to the
type of disability that is ‘permanent,’ thus indicating, if
literally construed, that every claimant under the ‘Other
Cases’ paragraph would ultimately get the limit of $3,000
compensation, this Court has not adopted such a construc-
tion.”

But appellants do not seek by these appeals to have this
Court “review and revise the construction affixed to a
State statute, as to a State matter, by the Court of last
resort of the State” as appellees insist in the course of their
argument that the judgments below are “not based upon
a Federal ground adequate to support a review.” Nor do
appellants question the wisdom of the court below. The
position of appellants, as shown in their respective State-
ments as to Jurisdiction, is that the “other cases” pro-
vision of the statute as construed and applied by the court
below is invalid in that it unconstitutionally impairs if
not destroys their rights and causes of ‘action protected
under the federal Constitution. Appellants, in the respec-
tive courts of first instance, seasonably insisted that as to
their claims for compensation the “other cases” provision
of the statute as construed by the court below violated
their rights under the 14th Amendment. Nevertheless the
decisions from which these appeals are taken applied and
enforced the “other cases” provision as thus construed, ex-
pressly rejecting appellants’ claims under the federal Con-
stitution, thus affirming the validity of the “other cases”
provision as construed.

In these circumstances the judgments sought to be re-
viewed were based upon a federal ground and this Court
has jurisdiction, under Section 237(a) of the Judicial Code,

s

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7

to review the decisions on there appeals and to inquire into
the unconstitutionality of the “other cases” provision as so
construed and applied.

It is respectfully submitted that the decisions of this
Court in situations indistinguishable in essentials from
those at bar conclusively support the jurisdiction these
appellants invoke.

In Dahnke-Walker Milling Co. v. Bondurant, 257 U. S.
282, decided under the legislation in force when the act of
January 31, 1928, was passed, and which involved the con-
stitutional validity of a state statute as construed to apply
to the activities of a party who contended that, as applied,
it contravened the commerce clause of the federal Consti-
tution, the jurisdiction of this Court to review the case on
writ of error was challenged. In discussing its jurisdiction
on writ of error, this Court, speaking through Mr. Justice
Van Devanter, said ( pp. 288-290) :

“In the state court the plaintiff did not simply claim
a right or immunity under the Constitution of the
United States, but distinctly insisted that as to the
transaction in question the Kentucky statute was void,
and therefore unenforceable, because in conflict with
the commerce clause of the Constitution. The court
did not accede to the insistence, but applied and en-
forced the statute. Of course, that was an affirmation
of its validity when so applied. Bridge Proprietors v.
Hoboken Co., 1 Wall. 116, 144; McCullough v. Virginia,
172 U. S. 102, 116, 117; General Oil Co. v. Crain, 209
U. S. 211; Corn Products Refining Co. v. Eddy, 249 U.S.
427. And see Western Union Telegraph Co. v. Kansas,
216 U. S. 1, 3, 27. The case is therefore of the class
described in the first of the provisions [Sec. 237(a) ]
which we have quoted from the jurisdictional section.
* * * Neither does it matter on what ground the court
upheld and enforced the statute. The provisions quoted
from the jurisdictional section show that in cases where

'

the validity of a state statute is drawn in question be-
cause of the alleged repugnance to the Constitution the
mode of review depends on the way in which the state
court resolves the question. If it be resolved in favor
of the validity of the statute, the review may be on
writ of error; * * *

“Our conclusion on the jurisdictional question is
that, as the state court applied and enforced to the
plaintiff's disadvantage a state statute which the plain-
tiff seasonably insisted as so applied and enforced was
repugnant to the Constitution and void, the case is
rightly here on writ of error. Like rulings on like
grounds will be found in Eureka Pipe Line Co. v. Hal-
lanan, 257 U. S. 265, and United Fuel Gas Co. v. Hal-
lanan, 257 U.S. 277.”

In Fiske v. Kansas, 274 U. S. 380, plaintiff in error was
convicted under a statute whose validity, as applied to con-

vict him, he challenged as violative of the due process
clause of the 14th Amendment to the federal Constitution.

In sustaining that contention, this Court, speaking through
Mr. Justice Sanford, said (pp. 385-386) :

“A decision of a State court applying and enforcing
a State statute of general scope against a particular
transaction as to which there was a distinct and timely
insistence that if so applied, the statute was void under
the Federal Constitution, necessarily affirms the valid-
ity of the statute as so applied, and the judgment is,
therefore, reviewable by writ of error under section
237 of the Judicial Code (Comp. St. Sec. 1214). * * *
The inquiry then is whether the statute is constitu-
tional as applied and enforced in respect of the situa-
tion presented. Ward & Gow v. Krinsky, 259 U. S. 503,
510; Cudahy Co. v. Parramore, 263 U. S. 418, 422. And
see St. Louis, etc. R. Co. v. Wynne, 224 U. S. 354, 359.

“And this Court will review the finding of facts by
a State court where a Federal right has been denied as
the result of a finding shown by the record to be with-
out evidence to support it; or where a conclusion of

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9
law as to a Federal right and a finding of fact are so

Aetna Life Ins. Co. v. Dunken, 266 U. S. 389, 394, and
cases cited.”

In First National Bank v. Anderson, 269 U. S. 3A1, in-
volving a suit by a national bank on behalf of its share-
holders to restrain the collection of an alleged discrimina-
tory tax levied against the latter on their shares, the tax
was assailed on the ground that the state law under which
the tax was levied, if construed and applied according to its
words, did not permit any discrimination against national
bank shares, or, in the alternative, if construed and applied
to sustain the tax, the state statute was in violation of a
federal statute prohibiting such discrimination. The state
court held that the state statute permitted the discrimina-
tion and denied the bank’s contention that, when so con-
strued and applied, the state law conflicted with the federal
statute. On petition for writ of error the jurisdiction of
this Court was challenged on the ground that the state
court’s decision in construction of the state statute and the
sufficiency of the bank’s petition was conclusive and bind-
ing on this Court. In denying that contention, this Court,
speaking through Mr. Justice Van Devanter, said (p. 346):

“Plainly the first ground cannot be maintained.
Whether a pleading sets up a sufficient right of action
or defense, grounded on the Constitution or a law of
the United States, is necessarily a question of federal

law, and, where a case coming from a state court pre-
sents that question, this court must determine for itself
the sufficiency of the allegations displaying the right
or defense, and is not concluded by the view taken of
them by the state court. Mitchell v. Clark, 110 U. S.
633; Boyd v. Thayer, 143 U. S. 135; Covington and Lex-
ington Turnpike Co. v. Sandford, 164 U. S. 578, 595;

10

Carter v. Texas, 177 U. S. 442. The principal is gen-
eral, and is a necessary element of this court’s power
to review judgments of state courts in cases involving
the application and enforcement of federal laws. Davis
v. Wechsler, 263 U. S. 22, 24.

“* * * In cases coming from state courts this court’s
power and concern are specially directed to rulings
made or refused on federal questions. Murdock v.
Memphis, 20 Wall. 590, 638; Bi-Metallic Investment Co.
v. State Board of Equalization, 239 U. S. 441, 444.”

See also:

Broad River Power Co. v. South Carolina, 281
U. S. 537, 540 (affmd. on rehearing: 282 U. S.
187); Thornton v. Duffy, 254 U. S. 361, 366;
Pollock v. Williams, 322 U. S. 4, 13; Enter-
prise Irrigation District v. Canal Co., 243
U. S. 157, 164; Ward v. Love County, 253
U.S. 17, 22; Fox River Paper Co. v. Railroad
Commission of Wisconsin, 274 U. S. 651, 655;
Abie State Bank v. Weaver, 282 U. S. 765;
Flournoy v. Wiener, 321 U. S. 253; Wilson
v. Cook, 327 U. S. 474; Greenough v. Tax
Assessors of City of Newport, 67 S. Ct. 1400,
1406; R. E. Sheehan Co. v. Shuler, 265 U. S.
371; Staten Island Rapid T. Ry. Co. v.
Phoenix Indemnity Co., 281 U. S. 98; Madera
Sugar Pine Co. v. Industrial Acci. Comm.
of California, 262 U.S. 499; Jeffrey Mfg. Co.
v. Blagg, 235 U. S. 571; Middleton v. Texas
Power & Light Co., 249 U. S. 152; Mattson
v. Department of Labor and Industries, 293
U. S. 151; Standard Oil Co. of California v.
Johnson, 316 U. S. 481.

The rule so clearly enunciated and applied in these cases
is in nowise qualified by the authorities cited and relied
upon by appellees. Their chiefly relied upon case, Quong
Ham Wah v. Industrial Accident Commission, 255 U. S. 445,
where, conversely to the situation here, a state statute con-
cededly unconstitutional on its face as enacted was con-

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ll

strued to apply in a constitutional manner, holds only that
“this Court is without authority to review and revise the
construction affixed to a state statute as to a state matter
by the court of last resort of the state.” That is, of course,
a recognized qualification of the jurisdiction of this Court,
but subject to it that case actually is authority for the
jurisdiction of this Court where there is seasonably inter-
posed a question arising under the federal Constitution,
and the case has been uniformly cited to that effect. It
was so cited by this Court in North Laramie Land Co. v.
Hoffman, 268 U. S. 276, involving the constitutional validity
of the Public Road Law of Wyoming, and where, after dis-
cussing the construction of the statute by the state court as
affecting procedural matters, this Court, speaking through
Mr. Justice Stone, said (p. 282):

“By this interpretation of the meaning and effect of
the statute of Wyoming we are likewise bound, but
we are nevertheless free to inquire whether the statute
as interpreted and applied by the state court denies
rights guaranteed by the Constitution and to consider
the contention of plaintiff in error that the statute it-
self is unconstitutional because of the insufficiency of
the required notice of the proceedings had under it,
and because by it plaintiff was denied a hearing within
the meaning of the due process clause of the Fourteenth
Amendment.”

Likewise citing Quong Ham Wah v. Industrial Accident
Commission, supra, and reviewing the authorities gen-
erally, is Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281
U. S. 673, in which a taxpayer, seeking injunctive relief in
equity from alleged discriminatory assessments, was held
by the state court, in reversing its previous construction of
a state statute, to have failed to avail itself of an administra-
tive remedy by appeal to the state tax commission which
had authority to grant a hearing and afford relief under
the statute as newly construed. In this Court the taxpayer

oe) a

contended that the statute as thus construed violated his

rights under the federal Constitution, and, in holding the

decision of the state court to be reviewable by this Court,

Mr. Justice Brandeis, speaking for the Court, said (pp.
680-682) :

“* * * If the result above stated were attained by

an exercise of the state’s legislative power, the trans-

its judicial as well as through its legislative, executive
or administrative branch of government. ”

“It is true that the courts of a state have the supreme
power to interpret and declare the written and un-
written laws of the state; that this court’s power to
review decisions of state courts is limited to their de-
cisions on federal questions (citing Quong Ham Wah
Co. v. Industrial Accident Commission, 255 U. S. 445);
and that the mere fact that a state court has rendered
an erroneous decision on a question of state law * * *
does not give rise to a claim under the Fourteenth
Amendment or otherwise confer appellate jurisdiction
on this court.

“* * * We are not now concerned with the rights
of the plaintiff on the merits, although it may be
observed that the plaintiff's claim is one arising under
the federal Constitution and, consequently, one on
which the opinion of the state court is not final; or with
the accuracy of the state court’s construction of the
statute. * * * Undoubtedly, the state court had the
power to construe the statute dealing with the state
tax commission; and to re-examine and overrule the
Laclede Case. Neither of these matters raises a federal

; neither is subject to our review. But, while
it is for the state courts to determine the adjective
as well as the substantive law of the state, they must,
in so doing, accord the parties due process of law.”

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Nor do the remaining authorities cited by appellees sup-
port their position that this Court’s judicial power is in-
sufficient to authorize review and revision of the decision
of the lower court sustaining the valid’ty of the “other
cases” provision, as construed by that court, against appel-
lants’ showing of the infringement thereby of their sub-
stantial rights under the federal Constitution. The rule
reflected in the cases cited by appellees is merely that the
meaning and effect attributable to a state statute, as well
as the upholding or rejection of its validity under a state
constitution, are binding on this Court. Not binding, how-
ever, is a state court’s holding of such statute to be con-

involved no claim of federally created or protected right but questions

federal jurisdiction was conferred solely by diversity of citizenship. To the
same effect is Hawks o. Hamill, 288 U. S. 52, where Mr. Justice Cardozo, for

canderts of lndepenter, judgment eppeapetets, to cut, commie
enue where the only basis of jurisdiction

at is at issue in this case is not
of any right or privi assured to
Nation.” Likewise to same effect
Fried, 292 U. 8. 487.

— . 8.
ing the validity of the New York minimum w w, the Court of Appeals of
New York had sustained the claim of of the statute under
the due process clauses of both the state and federal Constitutions. Gregg
Dycing Co. v. Query, 286 U. 8. 472, refutes appellees’ own « con-
firms the appellate jurisdiction and power of this Court which, speaking
through Mr. Chief Justice Hughes, there said (p. 480):
“What ts coqsived to thes costs cation, whuther Gecugd coe coy of
another, or through one enactment or more than one, shall de consistent
with the restrictions of the Federal Constitution.”

Co., 287 U. S. 35%, where this Court, speaking through Mr. Justice Cardozo,
said (pp. 362, 365):

“Enough for us that the construction, whether we view it as wise or
unwise, does not expose the court that made it to the reproach of with-

14

Il.
These Cases involve Important and Substantial
Questions of Federal Law.
Although appellees conclude in general terms and urge
upon this Court that no substantial federal question is in-

holding from the carrier the privileges and immunities established the
Constitution ”

of the Nation.

“The choice for any state may be determined by the juristic philosoph
of the judges of her courts, their ions of law, its origin and meters
We review, not the wisdom of their philosophies, but the legality of their
acts.”

In Glenn o. Field Packing Co., 290 U. 8. 177, this Court sustained the finding
we district court of a state statute’s invalidity “under the state constitution.
question presented under the Federal Constitution was not decided. * * *

so far as the application of the state Constitution is concerned, the ultimate
determination of the validity of the statute necessarily rests with that (Kentucky)
court.” In Hicklin ©. Coney, 290 U. 8. 169, ye the constitutionality of
state statutes ee transportation by motor vehicles, the state court's
construction of statutes, which this court held to be controlling of it,
exempted there from the burden which it complained rendered the
statute unconstitutional as applied to it. Highland Farms Dairy, Inc. v. Agnew,
300 U. S. 608, where the Virginia Milk and Cream Act of 1934 was assailed
as violative of both the Virginia and federal Constitutions, declares no such
restriction, as Hees claim, on this Court's jurisdiction to review a state
court’s construction of a state statute but expresses only the well established

rule (at page 613) that: Wty nek LY court of a state as to the
meaning and effect of its own is decisive and controlling every-

The holding in Midland Realty Co. o. Kansas City Light &@ Power Co., 300
U. S. 109, where it was contended that the public service commission law of
Missouri, as construed by the state court, unconstitutionally impaired the obli-
— 2 contract and violated the due process clause of the Fourteenth

was only that (at page 113): “These (constitutional) questions

are to be decided upon the construction that the state supreme court put upon
the statute.” In Carmichael ©. Southern Coal &@ Coke Co., 301 U. 8. 495, where
the a of a state unemployment compensation act had been
istrict court on the ground of the repugnancy of the act to

rt,
subsequent to the district court decision and ing appeal to this Court, hold-
ing the act valid under the state constitut “put at rest” (page 507) the
claim of repugnancy to the state constitution.
citation of Lauf v. BE. G. Shinner @ Co., 303 U. 8. 323, at page
338, is to the dissenting opinion of Mr. Justice Butler who merely reiterates
the rule that the meaning of a term employed in a state statute, as defined by
the highest court of that state, is the meaning which this Court is bound to
attribute to the term. And in Ross o. Oregon, 227 U. S. 150, the refusal of this
Court to review a decision of a state court allegedly violating the prohibition
in the federal Constitution mst ex post facto laws was predicated on the
holding that the constitutional restriction in question was aimed at the legisla-
tive and not at the judicial power of states; nor would this Court review the
correctness of a ruling of a state court wherein it had construed a provision
quactineten as having a prospective rather than a retroactive

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—

15

volved on these appeals they in nowise specify in their
motions the alleged insubstantiality of either the questions
involved or appellants’ claims. Nor do appellees even
attempt to deny that appellants’ substantial rights have
been so seriously affected as to be virtually destroyed by
the application and enforcement against them and their
claims for compensation of the statute as construed by the
court below.

While it is distinctly not a purpose of this brief to present
these cases upon their merits but merely to oppose the
motions to dismiss the appeals herein, it is nevertheless
obvious that the ground of alleged want of substantiality
of the questions presented, asserted in the motions as a
reason for dismissal, necessarily concerns the merits, at
least to the extent involved in showing that this Court has
recognized in its previous decisions that the federal grounds
upon which appellants challenged the validity of the statute
as construed are substantial. For that purpose a brief dis-
cussion of the meaning and effect of the “other cases” pro-
vision as the court below construed it, its constitutional
defects, and the previous decisions of this Court establish-
ing the norm of constitutionality of state workmen’s com-
pensation laws, seems necessary.

Unlike a situation where a legislative body by un-
equivocal pronouncement repeals and re-enacts with
amendments a statutory provision which then, as amended,
stands plainly in lieu of its predecessor provision, it is
necessary here, in order to ascertain the meaning and effect
now to be attributed to the “other cases” provision, that the
provision both as enacted and as amended by interpreta-
tion by the court below be considered and that the provision
as enacted be altered in every respect and to every extent in
and to which, from all of the language of the court below,
such alteration is indicated. No difficulty in this process

16

would be encountered in a case where the meaning of a
word or, indeed, of an entire phrase of a statute were the
subject of judicial interpretation, but where, as here, the
construction is so radical in extent and so far-reaching in
effect as to constitute a néw departure and to result in an
entirely different statute with an entirely new and differ-
ent scope, the difficulty in arriving with any degree of cer-
tainty at the meaning and effect of the statute as construed
is greatly magnified. Especially is this true where, as was
not done here, the construing court makes no effort com-
pactly to restate the results of its amendatory interpreta-
tion. If there is to emerge an expression to which may be
attributed the dignity of a pronouncement of organic law,
the opinions below must be combed for words which must
then be examined for evidence of the judicial intention
necessary to be ascertained in the determination of what
the “other cases” provision now means. This result, in it-
self, robs the statute as construed of the element of cer-
tainty which, as shown by the decisions hereinafter cited,
must necessarily characterize state workmen’s compensa-
tion acts if they are to meet the test of constitutionality.

The principal result of the amendments of the provision
by judicial construction is that the $3,000, which in the
provision as enacted, was the amount of compensation pay-
able in a case properly compensable under “other cases,”
is now made the maximum amount of compensation pay-
able under the provision; as enacted, it provided that a
claimant whose disability met the requirements of and
was compensable under it was entitled to compensation at
a rate computed in accordance with the scale prescribed by
the provision, payable during the continuance of his partial
disability, but not to exceed $3,000. The Commission is
now authorized to award an “aggregate amount of com-
pensation” less than $3,000, in the determination of which

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17

it is to have “due regard to the character of the permanent
partial disability, and the impairment of wage earning
capacity therefrom, as compared with the scheduled cases _
of permanent partial disability specifically provided for.”

This phrase last quoted from the opinion below in Allen
v. Glenn L. Martin Co., (at page 610 of 52 A. 2d) is the only
language of the court below which may be said to indicate
to the Commission how or in what manner it is to exercise
the broad and sweeping discretion now vested in it in
arriving at the aggregate amount of compensation it deter-
mines to award. Appellants submit that as a guide, rule,
basis or standard in aid of a determination of the amount of
compensation to be allowed, the quoted language of the
court below is meaningless, and confers upon the Commis-
sion a discretion so unfettered and uninhibited as to amount
to an absolute and arbitrary one.

To direct the Commission, as the provision as now con-
strued does, to have regard for the “character” of a perma~-
nent partial disability is to repeat a redundancy, because
the word “character” as referable to disability, and as used
in section 48(3) of Article 101 of the Annotated Code of
Maryland (Flack’s 1939 Ed.), the same subsection in which
the “other cases” provision as enacted appears, is itself
employed only to differentiate between and to designate
whether a disability is “total” or “partial”. The subsection
begins: “(3) (Permanent Partial Disability.) In case of
disability partial in character but permanent in quality, the
compensation shall be * * *.” Hence, to direct a regard
to the “character” of the permanent partial disability
means, at most, merely to look at or note the permanent
partial disability. The vital, essential and controlling fac-
tor necessary to be considered in reaching a reasonable
result in determining an amount of compensation to be

18

awarded is not only the character but particularly the
“duration” of the disability, as shown by the decisions of
this Court quoted infra.

Further, to direct regard to the impairment of wage
earning capacity, without more, furnishes no guide, rule,
basis or standard to aid the exercise of or to control the
discretion. It cannot sensibly mean that the Commission
should determine the percentage of loss of wage earning
capacity and award an amount representing an equal per-
centage of what is now the maximum amount allowable,
although that would seem an obvious construction of the
language used. However, that method of reaching the
amount of an award would lead to an absurd result because
a claimant with a 100% loss of wage earning capacity
would be permanently totally disabled and entitled to
$6,000 under the statute in force at the time the “other
cases” provision was enacted and $7,500 at the time of its
construction by the court below [Article 101, Section
48(1)]. Moreover, that process of computation was ex-
pressly rejected as wrong by the court below in the Town-
send Case without, however, indicating in any of its opin-
ions what would be a correct method of computation, or
in what manner or to what extent the amount of compen-
sation awarded is to be based upon or related to impairment
of wage earning capacity.*

*In Townsend o. Bethichem-Fairfield Shipyard, Inc. 47 A. 2d 365, at page
372, it is said:

“It is suggested that the Commission has made a practice of awarding
the maximum weekly amount in each case, and has indicated the percentage
of less of wage-earning capacity found by the percentage of the maximum
given as the limit of the particular award. If this is true, it is wrong
under the statute, and has the effect of preventing an appeal by the claim-
ant. We cannot, however, assume on the face of the record that such a
method was adopted in the case before us.”

In Baltimore Tube Co. o. Dowe, 164 Md. 87, at page 100, it is said:
“* © © The award itself does not disclose how the commission reached the
amount of com tion that was to be paid. Yet it cannot be said that

it did not re its conclusion as directed by the statute. The aggregate
amount required by the order to be paid to the claimant is not in excess of

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19

Finally, the direction of the court below to the Commis-
sion to compare the permanent partial disability “with the
scheduled cases of permanent partial disability specifically
provided for” likewise provides no guide, rule, basis or
standard to channel or control the discretion of the Com-
mission; because what possible profitable comparison in
determining an amount of compensation to be awarded may
be made, for example, between a permanent partial loss of
use of the back of a claimant and the loss or loss of use of a
hand, arm, foot, leg or eye of a claimant? Is a 50% loss of
use of the back worth more or less than the loss of the mem-
bers mentioned? How is the Commission to determine this
and the countless other questions that arise, in the absence
of a statement of policy or some prescribed guide, rule, basis
or standard reasonably adapted to produce a fair result?

That the language of the opinions below purporting to
furnish a guide to the Commission is fruitless and meaning-
less is established by the results obtained in the cases at
hand. In Allen v. Martin the evidence established that
the claimant had an admitted disability amounting to a
25% loss of use of his back, for which the Commission
allowed him $750. If he had lost 25% of the use of an arm
or leg he would have been allowed $954 (25% of 212 weeks
at $18 per week). Certainly the loss of 25% of the use of
the back, which in a laboring man controls the use of his
arms and legs, should require a greater allowance than
the loss or loss of use of 25% of one arm or one leg. Yet

$3,000, the limit fixed by the statute. The award es for the payment
of $1,000 and no more, which is within the sum allowed by the statute.”

At the trial of the case of Allen o. Martin herein it was established by the
testimony of the member of the Commission who decided that case that the
method he used in arriving at the amount awarded Allen was the identical
method condemned by the court below in the Townsend Case. Similarly in the
case of Hyman vo. yler, a in writing was made to prove that the
member of the Commission decided that case employed the same method
as was used in the Allen case and condemned as w in the Townsend Case.
Yet the court below, when shown what the Commi practice in fact had
been, held that it could not look at those facts!

the court below approved as proper an award allowing less
for a 25% loss of use of the back than would be required
to be allowed for a 25% loss of use of one arm or one leg.

In the Townsend Case the court below gave the Commis-
sion an absolute discretion; in the instant cases the dis-
cretion conferred is no less absolute, because while the
court below attempted to qualify that discretion it actually
laid down a defective and wholly inadequate guide for the
Commission to follow. While giving lip service to this
supposed yet improper guide the court below nevertheless
approved the action of the Commission in all of the instant
cases awarding compensation which was established to
have been arrived at by the Commission in a manner
which the court below in the Townsend Case had, in no
uncertain language, condemned as wrong, and which was
also shown not to have been in accordance with the sup-
posed guide the court below ruled the Commission ought
to have followed.

Further proof of the fact that the supposed guide, which
the court below held the Commission had to follow in arriv-
ing at the amount to be awarded a claimant whose disa-
bility is compensable under the “other cases” provision, is
unavailing to a claimant, is shown by the decision below
in Benoni v. Bethlehem Fairfield Shipyard, Inc. Appellant
in that case attempted to have his compensation based on
the amount of compensation allowable for disability to each
arm and each leg, whose use he contended was affected by
reason of the injury to his back. The court below held that
he could not do this.

It is obvious that what the court below did in setting out
the purported guide in Allen v. Martin was done in an
effort to meet the constitutional objections to giving the
Commission carte blanche to allow anything it pleased up

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21

to $3,000.00 without a guide, rule, basis or standard adapted
to produce a fair result. The court below adopted the
guide provided for in making an allowance in cases of dis-
figurement,* which guide cannot be applied so as to pro-
duce a fair result in cases where the disability should be
compensated for under the “other cases” provision. It is
clearly pointed out in New York Central Railroad Co. v.
Bianc, 250 U. S. 596, and in the opinion in those cases
in the Court of Appeals of New York (226 N. Y. 199,
123 N. E. 82, 856, 893) by its then Judge Cardozo, that
cases of disfigurement present a special problem and it is
therefore necessary to give the commission some latitude
in making an award for such injury. But in cases of disa-
bility under “other cases” there is no such special problem
as disfigurement cases present. In order to arrive at a fair
amount under “other cases” the compensation must be
based on the loss of earning capacity and the character and
duration of the disability. New York Central Railroad Co.
v. White, 243 U. S. 188. Any guide which permits the Com-
mission to ignore any one of these three elements in ar-
riving at the amount of compensation to be awarded vio--
lates the constitutional tests, as it permits the Commis-
sion to give varying amounts for the same disability. This
is clearly shown by the analysis of the cases decided by
the Commission and included in the record in these cases.

This analysis of the cases decided by the Commission
shows that it allows compensation varying from $150 to
$3,000 for disability under the “other cases” provision of the
statute.

* As to disfigurements the Maryland act, section 35(3) (formerly section
48) of article 101, provides:

“Disfigurements—For other mutilations and d rements not herein-
before provided for, compensation shall be allowed in the discretion of the
Commission, for not less than ten weeks nor more than one hundred weeks,
as the Commission may fix, in each case having due regard to the character
of the mutilation and disfigurement as compared with mutilation and injury

hereinbefore specifically provided for.”

: me

In attempting to affix to the “other cases” provision a
meaning and effect which could in some manner validly
permit the Commission to exercise the absolute discretion
which actually resulted, the court below in the Townsend
Case (at page 371 of 47 A. 2d) first reviewed some of the
decisions in which provisions of other compensation acts
identical to the “other cases” provision in the Maryland act
had been construed to mean what their language plainly
stated (i. e., the Longshoremen’s and Harbor Workers’
Compensation Act, 33 U. S. C., secs. 908(21) and 914(m);
cf., Lumber Mutual Casualty Insurance Co. v. Locke, 60 F.
2d 35; Norton v. Travelers Insurance Co., 105 F. 2d 122, 123),
and continuing, said:

“On the other hand, without naming them in detail,
there are a number of states which, by statute, confer
upon accident boards and commissions discretion to
limit the amount or duration of such payments to a
sum or period less than the maximum named. That
is the effect of the prior decisions of this Court con-
struing the ‘Other Cases’ section, which by judicial
interpretation, reach the same result achieved in these
other states by unequivocal statutory provisions.”

The fact is, however, that there is no state in the United
States whose compensation statute confers upon its acci-
dent board or commission the discretion which the court
below unconstitutionally attempted to give to the Mary-
land Commission.* This was shown to the court below by
a comprehensive survey of the compensation statutes of

* The only state whose compensation statute confers upon its board a dis-
cretion even approaching that attempted to be given by the court below is
Kentucky (Rev. Stats, Baldwin’s 1943 Rev., Ch. 342, Workmen's Comp., sec.
342.110) ; but the Court of Appeals of Kentucky, in construing the provision,
held that in all cases of permanent partial disability coming within its purview
the period during which compensation shall be paid must be the maximum
limit specified in the statute, even though it is based on a percentage of week
wages instead of loss of wage earning capacity. Starks Realty Co. wv. French,
267 Ky. 255, 101 S. W. 2d 946; and cf., United States Coal &@ Coke Co. oe. Jones,
261 Ky. 235, 87 S. W. 2d 366; and Wallins Creek Collieries ©. Jones, 214 Ky.
775, 283 S. W. 1067.

rIireen THROLIGHese POOR COPY

each of the 46 states other than Maryland ( Mississippi has
no compensation statute) having such statutes.

The defects in the provision as now construed transcend
any mere lack of wisdom. They go far deeper, in that they
are symptomatic of a statute too constitutionally imperfect
to accord with even the barest requirements of due process
of law. The extent of the resulting discretion in the Com-
mission to vary the amounts of its awards under “other
cases”, the exercise of which lacks any standard or guide
therefor, is unconstitutional as a deprivation of property
without due process of law under the 14th Amendment.

Moreover, when regard is had to the whole compensa-
tion law of Maryland, it is obvious that the resulting differ-
ence in the methods and techniques of making awards of
disability compensation, on the one hand for the “other
cases” types under that provision as now construed, and
on the other for the otherwise specified instances of disa-
dility, constitutes a deprivation of the equal protection of
the laws and a denial of privileges and immunities under
the 14th Amendment, in that related types of disability not
involving sufficiently substantial differences are compen-
sated according to entirely separate techniques and pro-
cedures, the difference between which has no reasonable
relation to the difference between the respective disabili-
ties.

As mentioned above under Point I of this brief, this Court
early held that the constitutionality of state workmen’s
compensation legislation cannot be supported except on the
ground that it is a “reasonable exercise of the police power
of the state”, and that as the rights of both employer and
employee are so intermingled in such legislation, the
statute, “if invalid as against the employee, is invalid as
against the employer”, New York Central Railroad Co. v.

White, 243 U.S. 188. As further pointed out in the opinion
in that case, the New York statute there being considered
(after which the Maryland statute was modeled, see:
Solvuca v. Ryan & Reilly Co., 131 Md. 265, 270) “sets aside
one body of rules only to establish another system in its
place. If the employee is no longer able to recover as
much as before * * *, he is entitled to moderate compensa-
tion in all cases of injury, and has a certain and speedy
remedy without the difficulty and expense of establishing
negligence or proving the amount of the damages.”

In addition to the certainty of remedy, totally lacking in
the “other cases” provision as construed yet essential to
the constitutional validity of a workmen’s compensation
act as applied to an employee’s claim, this Court further
in that case emphasized the features of the statute before
it which imported into that act the vita! elements of rea-
sonableness. Speaking through Mr. Justice Pitney, the
Court said:

“* * * Compensation under the act is * * * graduated
according to the average weekly wages of the injured
employee and the character and duration of the disa-
bility, whether partial or total, temporary or perma-
nent; *- +s

“* * * the statute * * * graduates the compensation
for disability according to a prescribed scale based
upon the loss of earning power, having regard to the
previous wage and the character and duration of the
disability.

“* * * it is not unreasonable for the state * * * to
require him (employer) to contribute a reasonable
amount, and according to a reasonable and definite
scale, by way of compensation for the loss of earning

* * *. Nor can it be deemed arbitrary and un-
reasonable, from the standpoint of the employee’s
interest, to supplant a system under which he assumed
the entire risk of injury in ordinary cases * * * and

ELEED THROUGH= POOR COPY

substitute a system under which * * * he is sure of a
definite and easily ascertained compensation, not being
obliged to assume the entire loss in any case, but in all
cases assuming any loss beyond the prescribed scale.

“* * * Viewing the entire matter, it cannot be pro-
nounced arbitrary and unreasonable for the state to
impose upon the employer the absolute duty of mak-
ing a moderate and definite compensation in money to
every disabled employee * * *.

“This, of course, is not to say that any scale of com-
pensation, however insignificant, on the one hand, or
onerous, on the other, would be supportable. In this
case, no criticism is made on the ground that the com-
pensation prescribed by the statute in question is un-
reasonable in amount, either in general or in the par-
ticular case. Any question of that kind may be met
when it arises.”

In the cases at bar the questions have arisen, not merely
because of the unreasonableness of the amounts of the re-
spective awards or the insignificance of a prescribed scale
of compensation, but for the far more substantial reasons
that the “other cases” provision as construed altogether
lacks any scale of compensation and illegally and uncon-
stitutionally delegates to the Commission the unbridled and
unfettered discretion to award any amount of compensa-
tion it sees fit in a case compensable under the provision,
without any guide, rule, basis or standard to control or
direct its discretion or reasonably adapted to produce a fair
result.

In the White Case this Court recognized the possibility
of and condemned in advance a construction of a work-
men’s compensation statute which would permit the exer-
cise by a commission of any such unbridled discretion as
has been indulged in and exercised in the cases at hand. In

ena a
26

discussing and holding valid Section 50 of the New York act
providing for the employer’s methods of securing compen-
sation payments, this Court said:

“* * * The third clause of section 50 has not been,
and presumably will not be, construed so as to give an
unbridled discretion to the Commission; nor is it to
be presumed that solvent employers will be prevented
from becoming self-insurers on reasonable terms. No
question is made but that the terms imposed upon this
railroad company were reasonable * * *; hence no
criticism of the practical effect of the third clause is

suggested.”

Appellants here have shown, and indeed it is submitted
to be obvious, that the “other cases” provision here has
been construed so as to give the unbridled discretion, which
this Court plainly condemned as unconstitutional, to the
Commission. Thus the practical effect of the “other cases”
provision as construed is directly in issue on these appeals.

In subsequent cases where the question of the constitu-
tional validity of state compensation acts came before this
Court the doctrines expressed in the White Case, that these
statutes on their face and in their application must, in order
to meet the test of constitutional validity and accord with
permissible state action, be reasonable, certain and definite
and not arbitrary or fundamentally injust, have been re-

peated again and again.

In Hawkins v. Bleakly, 243 U. S. 210, involving the Iowa
statute, this Court pointed out “that the act prescribes the
measure of compensation and the circumstances under
which it is to be made, and establishes administrative ma-
chinery for applying the statutory measure to the facts of
each particular case; * * *. This disposes of the conten-
tion that the administrative body is clothed with an arbi-

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27

trary and unbridled discretion, inconsistent with a proper
conception of due process of law.” In Mountain Timber
Co. v. Washington, 243 U. S. 219, involving the act of Wash-
ington, this Court pointed out that the act expressly
declared that its purpose was to provide “sure and certain
relief for workmen,” and that the states were not pre-
vented by the 14th Amendment from requiring employers
to pay compensation “according to a reasonable and definite
scale,” but that, as held in the White Case, “* * * we re-
peat * * * that, in sustaining the law, we do not intend to
say that any scale of compensation, however insignificant,
on the one hand, or onerous, on the other, would be sup-
portable, and that any question of that kind may be met
when it arises.”

In Arizona Copper Co. v. Hammer, 250 U. S. 400, this
Court pointed out that the Arizona Employers’ Liability
Law, there under scrutiny for constitutional defects, (p.
420) “imposes upon the employer * * * a liability in com-
pensatory damages, excluding all such as are speculative
or punitive.” The employers there argued that their com-
mon law right to employ workmen was unconstitutionally
infringed by the statute, and in referring to the inevita-
bility of injury and death in hazardous occupations, occur-
ring without fault on the part of either employer or em-
ployee, this Court further said (pp. 423-429) :

“* * * In view of the subject matter, and of the
public interest involved, we cannot assent to the prop-
osition that the rights of life, liberty, and property
guaranteed by the Fourteenth Amendment prevent the
states from modifying that rule of the common law
which requires or permits the workingman to take the
chances in such a lottery.

“The rule being based upon reasonable grounds
affecting the public interest, being established in ad-

vance and applicable to all alike under similar circum-

——

stances, there is, in our opinion, no infringement of the
fundamental rights protected by the Fourteenth
Amendment.

“* * * we held in that case (N. Y. C. R. Co. v. White)
the novel statutory scheme of awarding compensation

according to a prearranged scale is sustainable * * *.
Indeed, if a state recognizes or establishes a right of
action for compensation to injured workmen upon

grounds not arbitrary or fundamentally unjust, the |
question whether the award shall be measured as com-
pensatory damages are measured at common law, or
according to some prescribed scale reasonably adapted

to produce a fair result, is for the state itself to deter-
mine.”

Under the “other cases” provision as interpreted and
applied in these cases, the workingman is required to
take chances in a lottery much less favorable to him than
was allowed at common law. If he could recover at all
under the common law he would generally obtain dam-
ages that were compensatory. Under the Maryland com-
pensation statute as interpreted and applied he is limited
in the maximum amount recoverable and can never tell
how much he will recover. The amount of recovery is con-
trolled by the whim of the commissioner who happens to
hear the case. It is apparent, therefore, that the rights of
a workingman under the statute, as interpreted and ap-
plied in these cases, depends “not upon the law but upon
the unguided and unrestrained discretion of men.”

In New York Central R. Co. v. Bianc, 250 U. S. 596, where
employers challenged the section of the New York law
compensating disfigurements as invalid because not requir-
ing awards thereunder to be based upon impairment of
earning power, this Court held that loss of earning power
need not be the sole justification for compensation and that
facial or other disfigurement actually had a direct relation

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to earning power, but, while sustaining the constitution-
ality of the statute as there applied, nevertheless empha-
sized the limitation clearly expressed in its previous de-
cisions upholding compensation acts, namely, that con-
sistent with due process a state may adopt other methods
of compensation “provided the result be not inconsistent
with fundamental rights.” The Court reiterated its lan-
guage in the Arizona Employers’ Liability Cases, supra, 250
U. S. 429, that the grounds upon which a state may estab-
lish a right to compensation may not constitutionally be
“arbitrary or fundamentally unjust,” and that so far as is
concerned the question of compensation, due process re-
quires the award to be measured “according to some pre-
scribed scale reasonably adapted to produce a fair result.”

In Madera Sugar Pine Co. v. Industrial Accident Com-
mission, 262 U. S. 499, the employer contended that the
compensation act of California, as construed to require
compensation for the death of employees to be paid to their
non-resident alien dependents, was unconstitutional be-
cause the sole justification for the validity of the act’s re-
quirements for the payment of compensation for death
was to prevent dependents from becoming public charges
of the state. This Court rejected that contention, and in
discussing the general provisions of the California act mak-
ing it indistinguishable from other state statutes which had
been held valid pointed out that “such compensation being
recoverable by the employees, according to a prescribed
scale guaged by their previous wages and the extent of
their disability.”

In Cudahy Packing Co. v. Parramore, 263 U. S. 418, the
employer contended that the Utah workmen’s compensa-
tion act construed to make compensable the death of an
employee killed by a train while the employee was on his

way to work was unconstitutional as imposing liability

arbitrarily and capriciously. In denying that contention

this Court said, through Mr. Justice Sutherland (pp. 422-
424):

“The question saved in the state court and presented

here is whether the statute, as thus construed and ap-

plied, is valid under the provisions of the Fourteenth
Amendment.

“It may be assumed that where an accident is in no
manner related to the employment, an attempt to make
the employer liable would be so clearly unreasonable
and arbitrary as to subject it to the ban of the consti-
tution. * * *

“Legislation which imposes liability for an injury

thus related to the employment, among other justify-
ing circumstances, * * * is a matter of sufficient public
concern * * * to escape condemnation as arbitrary,
capricious, or clearly unreasonable.”

It is not deemed necessary in this brief to do more than
refer to a few of the decisions in which this Court has
laid down and applied the basic proposition that it is un-
constitutional for a statute to delegate to an administra-
tive body the power of decision or regulation unless the
discretion thereby conferred be canalized by standards or
guides wherewith to govern the exercise of the discretion.
Cited in the Statement as to Jurisdiction are Schechter
Poultry Corp. v. United States, 295 U. S. 495, and Panama
Refining Co. v. Ryan, 293 U. S. 388, both of which involved
the unconstitutionality of not providing adequate standards
to govern the making of regulations, which principle, how-
ever, has been applied indiscriminately both to the making
of administrative regulations and to the decisions of facts.

It is pointed out about those two decisions that this Court
invalidated administrative action under standards actually

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31

set up, because they were too vague, emphasizing the point
that statutes and practices which provide no standards or
guides, as the “other cases” provision as construed, are that
much worse and more clearly unconstitutional.

In the Schechter Case this Court held invalid a Presi-
dential promulgation of a “code of unfair competition” for
the poultry industry, under the National Recovery Act.
The vice was said to be that the act supplied “no standards
for any trade, industry, or activity * * *. The discretion
of the President * * * is virtually unfettered * * *.
Authority thus conferred is an unconstitutional delegation

of legislative power.”

In the Panama Refining Case, Mr. Chief Justice Hughes,
speaking for the Court, used the following language as de-
scriptive of the provision there struck down (at p. 430 of
293 U. S.): “As to the transportation of oil production in
excess of state permission, the Congress has declared no
policy, has established no standard, has laid down no rule.
There is-no requirement, no definition of circumstances and
conditions in which the transportation is to be allowed or
prohibited.”

It is respectfully submitted that in determining the sub-
stantiality of the federal questions involved in these ap-
peals, as well as the matter of the constitutional invalidity
of the “other cases” provision as construed by the court
below, the rule to be applied ought to be the one of liber-
ality of construction particularly applicable to judicial
scrutiny of workmen’s compensation statutes. Balti-
more & Philadelphia Steamboat Co. v. Norton, 28 U. S.
408, 414; Industrial Commission of Wisconsin v. McCartin,
67 S. Ct. 886, 889.

In conclusion it is submitted that in every aspect from
which the federal questions involved in these cases may
be judged they are substantial and ought to be decided by
this Honorable Court, and that the motions to dismiss the
appeals herein ought to be denied.

Respectfully submitted,

PAUL BERMAN,

SIGMUND LEVIN,

THEODORE B. BERMAN,
Counsel for Appellants.

Baltimore, Maryland
August 13, 1947.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0231%3A2. Public record. Not legal advice.