Petition for Writ of Certiorari — Baskin v. Industrial Accident Commission

Iu the Supreme Congs———

OF THE FILED

Rnited States JUL 3) 1949

October TERM, 1949 CHARLES ELMORE CROPLE

No. 224

REUBEN FRANKLIN BaskIN, by his guardian

ad litem and trustee, Catherine Dunn,

Petitioner,

vs.

INDUSTRIAL ACCIDENT COMMISSION OF aaa

STATE OF CALIFORNIA, KAIseER COMPANY,

Inc., and Hartrorp Accipent & INDEM-

nity COMPANY,

Respondents.

—

PETITION FOR WRIT OF CERTIORARI

to the District Court of Appeal of the State of California,

First Appellate District, Division Two.

and

BRIEF IN SUPPORT THEREOF.

\ FRANKLIN C, STARK.

801 Financial Center Building, Oakland 12, California,

Attorney for Petitioner.

SraRK & CHAMPLIN,

SOL Financial Center Building, Oakland 12, California,

\ SaMUEL B. Horovitz,

6 Beacon Street, Boston 8, Massachusetts,

NATIONAL ASSOCIATION OF CLAIMANTS’

COMPENSATION ATTORNEYS,

6 Beacon Street, Boston 8, Massachusetts,

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Subject Index

Petition for writ of certiorari ...............cceccceeeees

Summary statement of the matter involved .............

Sem GRAND 6 oo cin cc Ue ccecccssesvcéccccces

(a) Statutory provision sustaining jurisdiction........

(b) State statute, the validity of which is involved... ..

(ce) Date of judgment sought to be reviewed..........

(d) Nature of the case and the rulings below..........

(e) Leading case sustaining jurisdiction ..............

Brief in support of petition for writ of certiorari..........

GS GE GOS DERI vce dcdaccccnccccenscesoceceon<

FOND cc ssvicsde Wer eseb ised véscccotccvecocsces

|

es

I. There is a presumption of constitutionality attendant

upon a state workmen’s compensation act which re-

quires the state to take jurisdiction of claims filed

in its tribunals when such are within the ‘‘ twilight

zone’’ between the State Act and the Federal Act. .

II. A workman engaged in an ordinary land occupation

but injured while casually aboard a vessel on navi-

gable waters in the furtherance of repair work is in

Oe TEED bindu wcdccunces scsuiioniess

III. The court below erred in failing to recognize the

presumption of constitutionality in favor of the

state act, and in determining the matter by refer-

ence solely to federal sources rather than solely to

a]

one eon eee ee

13

“4

Table of Authorities Cited

Cases Pages

Baskin v. Industria! Accident Commission, et al. (1949) 89

Pe. ee § FS Ree Tree ll

Bethlehem Steel Co. v. Arthur J. Moore (1948) 335 U. S.

874, 69 S. Ct. 239, 93 L. ed. 123, aff’g 323 Mass. 462, 80

Pe ek Se Ge dedee i ckdccasdcdeocb buss 9, 10, 14, 15, 16, 18, 21

Davis v. Department of Labor of Washington (1942) 317

U. S. 249, 63 S. Ct. 225, 87 L. Ed. 246. .8, 9, 13, 15, 16, 19, 20, 21

Parker v. Motor Boat Sales, Inc. (1941) 314 U. S. 244, 62

ee © 3 OO Yr rer 18, i9, 20

Southern Pacifie Co. v. Jensen (1917) 244 U. S. 205, 37

ee Fe § 8 re oy ee mee eee 15

Constitutions

California Constitution :

BED Metis ED BPE ove vecvcccenceceedéucccensan 5,17

NTE bivandcsssoccasnceteveeceesds 5,17

United States Constitution:

Se EE TE A cecccnduchedéscodcanhenetaccnceas 2,17

Statutes

Labor Code (Deering’s 1943) :

PT isc odsegscekdeus ens Geahessdsencedseceed 5,17

PTL UCh J audvceduchceceatesedeccobendees cit 5

ny » oc esc sen dbdeddeehesaceneddcbad 2, 4,12

PE da Seucdthaddeddbocvecedeseeucseneausnae 5

SU ee ie eens eae 4, 8,12

RS rT errr 7

ee is ME GED 0 vn cceciccccessnscsceaseced 4,7, 13

er Sn i <6 conc bd cucbsacddcsscesaamasue’ 7

Ts ia ours scat onceba seeks élaesedsseshaul 4, 7,13

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TasBLe or AuTHOrITIES CrTED iii

Texts Page

17 Geo. Wash. L. Rev. 391-393 ©... . 6c cece cece eeeeeeees 16

93 Minn. Law Rev. 421-423 ....... 000s ceeeeeeeeeeeeeeees 16

3 N.A.C.C.A. Law J. 1T0-1T1 .. 6c cecee eee ee eee nees 16

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REUBEN FRANKLIN BasKIN, by his guardian |

ad litem and trustee, Catherine Dunn,

Petitioner,

vs.

ws

ue ,

INDUSTRIAL ACCIDENT COMMISSION OF THE

STaTe OF CALIFORNIA, KaIseER COMPANY,

Inc., and Harrrorp Accipent & INDEM-

nity CoMPANY,

Respondents.

A

PETITION FOR WRIT OF CERTIORARI

to the District Court of Appeal of the State of “ .uiornia,

First Appellate District, Division i wo.

To the Honorable Fred M. Vinson, Chief Justice of

the United States, and to the Honorable Associate

Justices of the Supreme Court of the United

States:

Your petitioner, Reuben Franklin Baskin, by his

guardian ad litem and trustee, Catherine Dunn, prays

a

2

that a writ of certiorari issue to review the judgment

entered January 11, 1949, in the District Court of

Appeal of the State of California, First Appellate

District, Division Two, in the above entitled cause. (R.

92-98.) Hearing thereon was denied by the Supreme

Court of California on March 10, 1949. (R. 99.)

Time within which to file a petition for certiorari

herein has been extended by orders of this Court to

August 1, 1949. (R. 100.)

SUMMARY STATEMENT OF THE MATTER INVOLVED.

Petitioner filed, with respondent Industrial Acci-

dent Commission of the State of California, his claim

~. for compensation under the California Workmen’s

nsation Act [Labor Code, §§ 3201-6149 (Deer-

ing’s ] for accidental injuries occurring on De-

cember 10, 1845, while he was employed by respondent

Kaiser Company, Inc., in Richmond, California, and

resulting in his total and permanent disability, both

physically and mentally. (R. 2-3.)

His claim was dismissed for want of jurisdiction

by respondent Commission on March 31, 1948, on the

sole ground that ‘‘The claim asserted herein is within

the exclusive admiralty jurisdiction of the Federal

Government and therefore outside the scope of juris-

diction of the California Industrial Accident Commis-

sion’’. (R. 87.)

A petition for rehearing, filed before the respondent

Commission, was denied by order thereof entered June

17, 1948. (R. 91.)

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3

A writ of review was granted petitioner by the Dis-

trict Court of Appeal of the State of California, First

Appellate District, Division Two. The question pre-

sented to that Court for decision was stated to be as

follows: ‘Only if the state could not constitutionally

provide compensation for petitioner’s injuries, may

the order of respondent Commission be sustained’’.

(R. 93.) On January 11, 1949, the Court held

«*** that the application of state law would directly

invade the federal jurisdiction’ (R. 96), and affirmed

the order of the Commission. (R. 98.) A petition

for rehearing by that Court was denied February 10,

1949. (R. 98.)

The Supreme Court of the State of California there-

after and on March 10, 1949, denied a petition for

hearing therein, one justice voting for a hearing. (R.

99.)

There is no dispute over the facts relating to the

matter presented in this petition. They are summar-

ized by the District Court of Appeal as follows (R.

92):

‘Petitioner was a materialman employed from

March, 1943, until December 10, 1945, by respond-

ent Kaiser Company, Inc., at its Shipyard No.

3 His work during that time was entirely on

shore (or on ships under construction) with the

exception of two or three tours of short duration

when he was sent to work aboard ships being re-

paired.

“On December 10, 1945, the S.S. ‘William Moul-

trie’ was undergoing repairs. She was one of three

vessels tied up side by side at the shipyard wharf

4

in San Francisco Bay and was the farthest out,

A crane on the wharf moved materials from place

to place on these ships. One of the holds on the

‘Moultrie’ was being repaired. The crane’s boom

could not reach the planks already on board, to

move them from one hold to another, and it be-

came necessary to send men aboard to do go,

Despite standing instructions that Baskin should

not be sent aboard ships under repair, he was

ordered onto the ‘Moultrie’ to help, and while

there fell down a hold and was seriously and per-

manently injured.’’

JURISDICTIONAL STATEMENT.

(a) Statutory provision sustaining jurisdiction.

The statute believed to sustain appellate jurisdiction

is Tit. 28 U.S.C. § 1257 (3).

(b) State statute, the validity of which is involved.

The State statute under which petitioner claims

compensation, and the validity of which as applied is

here involved,' is the California Workmen’s Compen-

sation Act, Labor Code, §§ 3201-6149 (Deering’s 1943)

hereinafter in this petition referred to as the ‘‘State

Act’’.

'The District Court of Appeal clearly construed the coverage of

this statute to include petitioner, if such was within the reach of

the State of California consistently with Article 3, § 2 of the Fed-

eral Constitution which extends the jurisdiction of Federal Courts

‘**to all cases of admiralty and maritime jurisdiction’’, and the

Federal Longshoremen and Harbor Workers’ Act, 44 Stats. 1424,

33 U.S.C. § § 901-950, which accepts the constitutional line of

demarcation between state and federal jurisdiction. See discus-

sion, infra, as to the nature of the case and the rulings below.

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5

The provisions of the State Act are:

«“* * * an expression of the police power and are

intended to make effective and apply to a com-

plete system of workmen’s compensation, the pro-

visions of sections 1714 and 21 of Article XX of

the Constitution of this State.’”’ Labor Code,

§ 3201 (Deering’s 1943).

It is further provided that:

‘Liability for the compensation * * * shall,

without regard to negligence, exist against an em-

ployer for any injury sustained by his employees

arising out of and in the course of his employ-

ment * * *’’ Labor Code, § 3600 (Deering’s 1943).

“The provisions [of the State Act] * * * shall

be liberally construed by the courts with the pur-

pose of extending their benefits for the protection

of persons injured in the course of their employ-

ment.’’ Labor Code, § 3202 (Deering’s 1943).

Section 21 of Article XX of the Constitution of the

State of California, applied by the State Act, provides

that :”

“The Legislature is hereby expressly vested with

plenary power, unlimited by any provision of this

Constitution, to create, and enforce a complete

system of workmen’s compensation, by appropri-

ate legislation, and in that behalf to create and

enforce a liability on the part of any and all per-

sons to compensate any and all workmen for in-

2Sections 174 and 21 of Article XX of the Constitution of the

State of California are set out in full in Appendix A of the brief

attached hereto.

a

jury or disability, and their dependents for death

incurred or sustained by the said workmen in the

course of their employment, irrespective of the

fault of any party.’’

(c) Date of judgment sought to be reviewed.

The date of the judgment of the District Court of

Appeal sought to be reviewed is January 11, 1949,

(R. 92-98.) The Supreme Court of California denied

petition for hearing of the matter on March 10, 1949,

(R. 99.) Time within which to file petition for cer-

tiorari herein has been extended to August 1, 1949,

(R. 100.)

(d) Nature of the case and the rulings below.

Petitioner’s claim for compensation under the State

Act was made in the belief that although his injuries

were sustained in the furtherance of repair work on a

vessel on navigable waters, nevertheless since he was

engaged in an ordinary land occupation and aboard

the vessel only casually, he was not deprived of the

helpful provisions of the State Act, which contains

no limit on recovery in cases of permanent total dis-

ability.®

Following the injury, the employer’s insurance car-

rier (respondent Hartford Accident & Indemnity

Company) paid compensation to petitioner under the

3Where the injury causes permanent total disability, the State

Act permits the workman to receive 65% of his average weekly

earnings for 240 weeks, and thereafter, 40% of his ave

weekly earnings for the remainder of his life. Average weekly

earnings are to be taken at not less than $15.00 nor more than

$46.16. Petitioner was earning more than the maximum, so his

lifetime pension would on this basis be $18.46 per week.

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7

Federal Longshoremen and Harbor Workers’ Act, 44

Stats. 1424, 33 U.S.C. §§ 901-950 (hereinafter in this

petition referred to as the ‘Federal Act’’). The Fed-

eral Act by its terms limits total recovery to $7500,

even though there may be permanent total disability

or death. [33 U.S.C., § 914(m) ].* Petitioner at no time

filed any claim under the Federal Act and there was

never any hearing, fact-finding or award made under

that Act. Respondent carrier had the employer’s cov-

erage under both the State Act and the Federal Act,

and its decision on December 17, 1945 (7 days after

the accident) to pay compensation under the Federal

Act was not joined in by petitioner who was then un-

conscious and not expected to live. (R. 11; 16-17; 60.)

Petitioner has accepted the compensation payments

made to him, but has consistently asserted throughout

his right to compensation under the State Act, and to

treat payments made as on account of State benefits.

The federal question involved was specifically raised

in all the proceedings below, and the District Court of

Appeal directly ruled on it as the only question in-

volved. (R. 92-98.)

Respondent Commission held that:

‘The claim asserted herein is within the exclusive

admiralty jurisdiction of the Federal Government

and therefore outside the scope of jurisdiction

of the California Industrial Accident Commis-

sion.’’ (R. 87.)

‘The Federal Act has now been amended to provide that the

limitation shall not apply to cases of permanent total disability

or death, The amendment is applicable ."Y injuries oceurri

after its effective date, namely, June 2, 1

U.S.C.A, § 906).

(see note under

a

Accordingly, respondent Commission ‘‘dismissed for

want of jurisdiction’’. (R. 87.)

The District Court of Appeal stated the question for

decision as follows:

“Only if the state could not constitutionally pro-

vide compensation for petitioner’s injuries, may

the order of respondent Commission be sus-

tained.’’ (R. 93.)

The Court then held ‘** * * that the application of

state law would directly invade the federal jurisdic-

tion’’ (R. 96), and affirmed the order of the Commis-

sion dismissing for want of jurisdiction. (R. 98.)

The Supreme Court of the State of California de-

nied a petition for a hearing therein (R. 99), and

the judgment of the District Court of Appeal thus

became the final judgment of the highest Court in the

State of California in which a decision could be had.

The sustaining by that Court of the federal claim

against the application of the State Act brings the

ease directly within 28 U.S.C. § 1257 (3).

(e) Leading case sustaining jurisdiction.

The leading case believed to sustain the jurisdiction

of this Court is Davis v. Department of Labor of

Washington (1942) 317 U.S. 249, 63 S.Ct. 225, 87

L.ed. 246.

QUESTION PRESENTED.

Where a materialman who is engaged in an ordinary

land occupation is injured while casually aboard a

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9

vessel on navigable waters in the furtherance of repair

work, may the state constitutionally extend to his per-

manent total disability the benefits of its workmen’s

compensation statute ?

REASON RELIED ON FOR THE ALLOWANCE

OF THE WRIT.

The District Court of Appeal of the State of Cali-

fornia has decided a federal question of substance in

a way not in accord with applicable decisions of this

Court. The decision of the Court below that the appli-

eation of the State Act to this case ‘‘would directly

invade the federal jurisdiction”’’ is in direct conflict

with the decisions of this Court in:

Bethlehem Steel Co. v. Arthur J. Moore (1948)

335 U.S. 874, 69 S.Ct. 239, 93 L.ed. 123, aff’g

323 Mass. 462, 80 N.E. (2d) 478;

Davis v. Department of Labor of Washington

(1942) 317 U.S. 249, 63 S.Ct. 225, 87 L.ed.

246.

In the Davis case, it was determined that there is

a presumption of constitutionality attendant upon a

state workmen’s compensation act which requires a

state to take jurisdiction of claims filed in its tribunals

when such are in the ‘twilight zone’’ between such

state acts and the Federal Act.

In the Bethlehem Steel case, it was determined that

a workman ordinarily employed on land but oecasion-

ally going on a vessel to aid in repair work is within

the ‘‘twilight zone’’, and thus entitled to the presump-

7

10

tion of constitutionality.’ The Bethlehem Steel case

decides the exact question which was before the Court

below, i.e., whether the ‘‘twilight zone’’ includes ocea-

sional acts in furtherance of the repair of a previously

finished vessel by one engaged in an ordinary land

occupation, diametrically opposite to its determination

by that Court.

Dated, Oakland, California,

July 25, 1949.

Respectfully submitted,

REUBEN FRANKLIN Bask, by

his guardian ad litem and

trustee, Catherine Dunn,

Petitioner.

FRANKLIN C. Stark,

Attorney for Petitioner.

StarRK & CHAMPLIN,

SaMUEL B. Horovrrz,

NATIONAL ASSOCIATION OF CLAIMANTS’

COMPENSATION ATTORNEYS,

Of Counsel.

5The Bethlehem Steel case was decided by this Court in De-

cember, 1948, after the matter herein prayed to be reviewed had

been submitted to the District Court of Appeal. That Court did

not, accordingly, have the benefit of the decision, nor, because of

the time element involved, was it available either to it on the

petition for rehearing or to the Supreme Court of California on

the petition for hearing there. Thereafter, on May 28, 1949, peti-

tioner called this decision to the attention of respondent Commis-

sion, but without success.

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REUBEN FRANKLIN Bask, by his guardian

ad litem and trustee, Catherine Dunn,

Petttioner,

vs.

~~

InDUsTRIAL ACCIDENT COMMISSION OF THE

State oF CALIFORNIA, KaisER COMPANY,

Inc., and Harrrorp AccipeNT & INDEM-

nity COMPANY,

Respondents. |

BRIEF IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI.

OPINION OF COURT BELOW.

The opinion of the District Court of Appeal of the

State of California, First Appellate District, Division

Two (R. 92-98), was filed January 11, 1949 and is re-

ported as Baskin v. Industrial Accident Commission

et al., 89 A.C.A. 694, 201 P. (2d) 549.

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JURISDICTION.

1. The date of the judgment sought to be reviewed

is January 11, 1949. (R. 92-98.) Hearing thereon was

denied by the Supreme Court of the State of Cali-

fornia on March 10, 1949. (R. 99.) Time within which

to file petition for certiorari herein has been extended

to and including August 1, 1949. (R. 100.)

2. The statutory provision believed to sustain the

jurisdiction of this Court is Tit. 28 U.S.C. § 1257(3),

3. The grounds upon which the jurisdiction of this

Court is based and the leading case believed to sus-

tain the jurisdiction of this Court are set forth under

the heading ‘‘ Jurisdictional Statement”’ in the preced-

ing petition, pages 4 to 8, to which reference is

made for the sake of brevity.

STATEMENT OF THE CASE.

For the sake of brevity, we refer to the preceding

petition, pages 2 to 4.

STATEMENT OF ERROR.

The District Court of Appeal of the State of Cali-

fornia erred in holding that the general admiralty law

rendered the California Workmen’s Compensation

Act, Labor Code, §§ 3201-6149 (Deering’s 1943)

(hereinafter in this brief referred to as the ‘‘State

Act’’) inapplicable to petitioner who was engaged in

an ordinary land occupation and was injured while

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casually aboard a vessel on navigable waters in the

furtherance of certain repair work.

ne

ARGUMENT.

I. THERE IS A PRESUMPTION OF CONSTITUTIONALITY AT-

TENDANT UPON A STATE WORKMEN’S COMPENSATION

ACT WHICH REQUIRES THE STATE TO TAKE JURISDIO-

TION OF CLAIMS FILED IN ITS TRIBUNALS WHEN SUCH

ARE WITHIN THE ‘‘TWILIGHT ZONE’’ BETWEEN THE

STATE ACT AND THE FEDERAL ACT.

This Court in the case of Davis v. Department of

Labor of Washington' enunciated the rule of a ‘“‘twi-

light zone’’ between state workmen ’s compensation

acts and the Federal Longshoremen and Harbor

Workers’ Act., 44 Stats. 1424; 33 U.S.C.A. $§ 901-950

(hereinafter in this brief referred to as the ‘‘ Federal

Act’’). Faced with the problem of situations in which

a case might fall under either such a state act or the

Federal Act by reason of particular facts, ‘‘we must

give great—indeed, presumptive—weight to the con-

clusions of the appropriate federal authorities and to

the state statutes themselves.’’ (317 U. S. at 256).

‘‘Where there has been a hearing by the federal

administrative agency * * * our task proves easy.

There we are aided by the provision of the federal

act, 33 USCA § 920, which provides that in pro-

ceedings under that act, jurisdiction is to be ‘pre-

sumed in the absence of substantial evidence to

the contrary’.’’ (317 U.S. at 256).

‘‘In the instant case [where, as here, the pro-

ceedings were under a state act and not the

1(1942) 317 U.S. 249, 63 S.Ct. 225, 87 L.ed. 246.

14

Federal Act] we do not enjoy the benefit of fed-

eral administrative findings and must therefore

look solely to state sources for guidance. We find

here a state statute which purports to cover these

persons, and which indeed does cover them if the

doubtful and difficult factual questions to which

we have referred are decided on the side of the

constitutional power of the state.’’ (317 U.S,

at 257).

“Under all the circumstances of this case

[Davis] we will rely on the presumption of con-

stitutionality in favor of this state enactment; for

any contrary decision results in our holding the

Washington act unconstitutional as applied to

this petitioner. A conclusion of unconstitution-

ality of a state statute can not be rested on so

hazardous a factual foundation here, any more

than in the other cases cited.”’ (317 U.S. at 258).

Il. A WORKMAN ENGAGED IN AN ORDINARY LAND OCOCUPA-

TION BUT INJURED WHILE CASUALLY ABOARD A VESSEL

ON NAVIGABLE WATERS IN THE FURTHERANCE OF RE-

PAIR WORK IS IN THE ‘‘TWILIGHT ZONE’’.

The basic question presented by this case is whether

the ‘‘twilight zone’’ includes a land workman like

petitioner whose momentary presence aboard a vessel

on navigable waters in furtherance of repair is inci-

dental and de minimis in the extreme. The Court

below held it did not.

The precise point has now been decided to the con-

trary by this Court, in the recent case of Bethlehem

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15

Steel Co. v. Arthur J. Moore.’ It was there held in a

per curiam opinion affirming the Supreme Judicial

Court of Massachusetts,’ that such a workman was

within the ‘‘twilight zone’’ and entitled to compensa-

tion under a state workmen’s compensation act. Both

Courts rested their decision on the Davis case. That

ease and the Bethelehem Steel case require reversal of

the Court below.

In the Bethlehem Steel case, the injured workman

was a rigger who spent the major portion of his time

on the piers but occasionally went aboard vessels. At

the time of injury he was aboard a vessel on navigable

waters, engaged in furthering its repair. The Supreme

Judicial Court of Massachusetts, whose judgment was

affirmed by this Court, carefully pointed out that,

prior to the Davis case, it would have reached the

opposite result under Southern Pacific Co. v. Jensen

(1917) 244 U.S. 205, 37 S.Ct. 524, 61 L.ed. 1086. The

Massachusetts Court concluded, however, that:

“«“* * * the situation was definitely altered by the

decision of the Supreme Court of the United

States in Davis v. Department of Labor * * *’’ (80

N. E. (2d) at 480.)

and that there was now included:

“«<* * * within the twilight zone the case of a om

man engaged in an ordinary land occupation al-

though occasionally going upon a dry dock or

vessel to make repairs.’’ (80 N.E. (2d) at 481).

2(December, 1948) 335 U.S. 874, 69 S.Ct. 239, 93 L.ed. 123, aff’g.

323 Mass. 462, 80 N.E. (2d) 478.

3Moore’s Case (S. J. Ct. Mass., 1948) 323 Mass. 462, 80 N.E.

(2d) 478.

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16

In the light of the Davis and Bethlehem Steel cases,

petitioner was clearly entitled to his choice of the

State Act to compensate his permanent total disa-

bility. It has been properly said of the decision below

that :*

“‘The court did not refer to the recent case de-

cided by the Massachusetts Supreme Judicial

Court and affirmed by the Supreme Court of

the United States, Moore’s Case, 323 Mass,

462, 80 N.E. 2d 478, affirmed, 69 S.Ct. 239 (Dee.

6, 1948). It cited primarily older cases decided

before the leading case of Davis v. Dept. of Labor,

317 U.S. 249, 63 S.Ct. 225 (1942), and disposed of

that case with the finding that the petitioner did

not bring himself within the twilight zone. A

materialman is certainly not a longshoreman. He

is hardly a harbor worker when his work was en-

tirely on shore, except for ‘two or three tours of

short duration when he was sent to work aboard

ships being repaired’. ‘Harbor’ workers connote

regular work on boats in harbors, not on land.

At least, there is doubt, and the twilight zone doc-

trine should have given the plaintiff his choice.”’

Ill. THE COURT BELOW ERRED IN FAILING TO RECOGNIZE

THE PRESUMPTION OF CONSTITUTIONALITY IN FAVOR

OF THE STATE ACT, AND IN DETERMINING THE MAT-

TER BY REFERENCE SOLELY TO PEDERAL SOURCES

RATHER THAN SOLELY TO STATE SOURCES.

The Court below posed the question for decision as

“Only if the state could not constitutionally provide

43 NACCA Law J. 170-171. See also 17 Geo. Wash. L. Rev. 391-

393 ; 33 Minn. Law Rev. 421-423.

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17

compensation for petitioner’s injuries, may the order

of respondent Commission be sustained.’ (R. 93.)

There is no specific reference to the state statute in-

volved nor to the federal constitutional provision

against which its validity is to be measured. It is

clearly assumed throughout, however, as is the fact,

that the State Act covers petitioner. Reference to the

State Act shows that its provisions are:

“*#* on expression of the police power and are in-

tended to make effective and apply to a complete

system of workmen’s compensation, the provisions

of Sections 1714 and 21 of Article XX of the Con-

stitution of this State.’ Labor Code, § 3201

(Deering’s 1943).

It is clearly stated, moreover, that the validity of the

State Act is being measured against ‘‘the federal

jurisdiction’ (R. 96), which may be taken as a

reference both to Article 3, §2 of the Federal Con-

stitution, which extends the jurisdiction of Federal

Courts ‘‘to all cases of admiralty and maritime juris-

diction”, and to the Federal Act which accepts the

constitutional line of demarcation between state and

federal jurisdiction.°

5Section 21 of Article XX of the Constitution of the State of

California provides that :

“The Legislature is hereby expressly vested with plenary

power, unlimited by any provision of this Constitution to

create and enforce a liability on the part of any and all per-

sons to compensate any and all workmen ® ® ®’’

See also Paragraph (b) under Jurisdictional Statement in the

petition to which this brief is attached, and Appendix A hereto

for Sections 1744 and 21 of Article XX in full.

6Davis v. Department of Labor of Washington (1942) 317 U.S.

249, 256, 63 S.Ct. 225, 87 L.ed. 246, 250.

a

18

The Court below failed to recognize that petitioner

was within the ‘‘twilight zone’’, saying expressly:

‘*Petitioner’s case instead of being in the ‘twilight

zone’ is definitely on the same side of the line as

the numerous cases * * * which have followed the

rule which Southern Pacific Co. v. Jensen * * *

laid down * * *”’ (R. 97.)

Inasmuch as petitioner’s case is in the ‘‘twilight

zone’’, as the Bethlehem Steel case makes abundantly

clear, the Court below was required to extend to him

the ‘‘presumptive weight’’ (317 U.S. at 256) of the

State Act itself, and to ‘‘look solely to state sources

for guidance’’ (317 U.S. at 257) in determining the

constitutional problem. It did neither. Instead of ree-

ognizing a presumption of constitutionality of the

State Act (in fact such is never even mentioned) and

looking solely to state sources for guidance in deciding

the constitutional question, the Court below determined

the question by reference to the Federal Act and to

decisions under the Federal Act which of necessity

rest on the statutory presumption of federal jurisdic-

tion contained in that Act itself.

Thus, the Court below, in treating the factual situa-

tion of a land employee only casually aboard a vessel,

notes that ‘‘Substantially the same argument was

considered in Parker v. Motor Boat Sales, Inc., 314

U. S. 244 [62 S. Ct. 221, 86 L. Ed. 184] * * *”’ (R.

94), in which case an exercise of federal jurisdic-

tion was sustained. There was no recognition by the

Court below that the Parker case, as explained in

the Davis case, rests on the statutory presumption of

federal jurisdiction, certain particular facts in that

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19

ease being sufficient to sustain the action of the fed-

eral administrative agency. That being so, the Parker

case may not be taken as controlling a factual situa-

tion presented not to such a federal agency but to a

state tribunal. The use of this authority was not

“Giving the full weight to the presumption [of the

constitutionality of the State Act] and resolving all

doubts in favor of the [State] Act’’ (317 U.S. at 258).

It was instead thrusting the burden of a presumption

of federal jurisdiction upon petitioner, even though

he was not claiming under the Federal Act.

This misconception of the law perpetuated the error

of the trial referee who had likewise determined on

the basis of the Parker case that petitioner’s status

as a land employee and the casual and de minimis

character of his presence aboard the vessel were im-

material on the jurisdictional question.’

That the Parker case may not be so viewed, is ex-

plained by this Court in the Davis case, where it was

said of Parker:

7See Trial Referee’s Report on Applicant’s Petition for Rehear-

ing (R. 88):

” ‘‘But there are additional facts which could conceivably

distinguish this case from the usual ‘repair’ case. The appli-

cant in this case did not usually or customarily work in the

repair of vessels; on the contrary, he was predominantly a

land employee, and it was only on rare occasions and for

short periods of time that he was assigned tasks on board

ship; and furthermore, this general assignment to work on

land was by deliberate design of the supervisory authority.

What significance have these additional facts on the jurisdic-

tional question?

‘“‘T think it is clear that they have none. Maritime service

is no less maritime because it is performed at rare intervals,

or by a workman who is better suited for work on land.

‘‘Parker v. Motor Boat Sales, Inc., 314 U.S. 244 is directly

in point * * *”’

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20

“* * * we must give great—indeed, presumptive—

weight to the conclusions of the appropriate fed-

eral authorities * * * Where there has been a hear-

ing by the federal administrative agency entrusted

with broad powers of investigation, fact finding,

determination and award, our task proves easy,

There we are aided by the provisions of the fed-

eral act, 33 U.S.C.A. 920, which provides that in

proceedings under that act, jurisdiction is to be

presumed in the absence of substantial evidence

to the contrary. Fact findings of the agency,

where supported by the evidence, are made final,

Their conclusion that a case falls within the

federal jurisdiction is therefore entitled to great

weight and will be rejected only in cases of ap-

parent error. It was under these circumstances

that we sustained the Commissioner’s findings in

Parker v. Motor Boat Sales, supra.’

CONCLUSION.

The decision of the District Court of Appeal is

clearly not in accord with controlling decisions of this

Court. Its failure to recognize that petitioner is

within the ‘‘twilight zone’’ frustrates the very purpose

of the Davis case to free the injured employee from

doubt as to which act covers his disability and to per-

mit him to choose, and be right in his choice.

Petitioner is a young man who has been totally and

permanently disabled for life. The State Act under

which he admittedly worked day in and day out for

almost three years for respondent employer provides

8Italics supplied.

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21

lifetime compensation for his permanent total dis-

ability. This feature of the Act was designed ex-

pressly to compensate those who, like him, sustain

such disability while industrially employed.

Petitioner has sought with all the means at his dis-

posal to secure his award under the State Act, relying

on this Court’s enunciation of the ‘‘twilight zone’’ doc-

trine in the Davis case. The applicability of that doc-

_ trine to his situation has become perfectly clear since

this Court’s decision in the Bethlehem Steel case, a

decision not available to the state tribunals at the time

petitioner’s case was before them.

We respectfully submit that certiorari should be

granted herein, and the judgment below reversed on

the basis of the Davis and Bethlehem Steel cases.

Dated, Oakland, California,

July 25, 1949.

Respectfully submitted,

FRANKLIN C. StTaRK,

Attorney for Petitioner.

SrarK & CHAMPLIN,

SaMvEL B. Horovitz,

NATIONAL ASSOCIATION OF CLAIMANTS’

COMPENSATION ATTORNEYS,

Of Counsel.

(Appendix A Follows.)

Appendix A

EXCERPTS FROM ARTICLE XX OF THE OONSTITUTION

OF THE STATE OF CALIFORNIA.

“Sec. 174%. The Legislature may, by appropriate

legislation, provide for the establishment of a mini-

mum wage for women and minors and may provide

for the comfort, health, safety and general welfare of

any and all employees. No provision of this Constitu-

tion shall be construed as a limitation upon the author-

ity of the Legislature to confer upon any commission

now or hereafter created, such power and authority

as the Legislature may deem requisite to carry out the

provisions of this section.”’

“Sec. 21. The Legislature is hereby expressly vested

with plenary power, unlimited by any provision of this

Constitution, to create, and enforce a complete system

of workmen’s compensation, by appropriate legisla-

tion, and in that behalf to create and enforce a lia-

bility on the part of any or all persons to compensate

any or all of their workmen for injury or disability,

and their dependents for death incurred or sustained

by the said workmen in the course of their employ-

ment, irrespective of the fault of any party. A com-

plete system of workmen’s compensation includes ade-

quate provisions for the comfort, health and safety

and general welfare of any and all workmen and those

dependent upon them for support to the extent of

relieving from the consequences of any injury or death

incurred or sustained by workmen in the course of

their employment, irrespective of the fault of any

—

party; also full provision for securing safety in

places of employment; full provision for such medical,

surgical, hospital and other remedial treatment as is

requisite to cure and relieve from the effects of such

injury; full provision for adequate insurance cover-

age against liability to pay or furnish compensation;

full provision for regulating such insurance coverage

in all its aspects, including the establishment and

management of a State compensation insurance fund;

full provision for otherwise securing the payment of

compensation; and full provision for vesting power,

authority and jurisdiction in an administrative body

with all the requisite governmental functions to deter-

mine any dispute or matter arising under such legis-

lation, to the end that the administration of such

legislation shall accomplish substantial justice in all

cases expeditiously, inexpensively, and without incum-

brance of any character; all of which matters are ex-

pressly declared to be the social public policy of this

State, binding upon all departments of the State gov-

ernment.

The Legislature is vested with plenary powers, to

provide for the settlement of any disputes arising

under such legislation by arbitration, or by an in-

dustrial accident commission, by the courts, or by

either, any, or all of these agencies, either separately

or in combination, and may fix and control the method

and manner of trial of any such dispute, the rules of

evidence and the manner of review of decisions ren-

dered by the tribunal or tribunals designated by it;

provided, that all decisions of any such tribunal shall

_——

be subject to review by the appellate courts of this

State. The Legislature may combine in one statute

all the provisions for a complete system of workmen’s

compensation, as herein defined.

Nothing contained herein shall be taken or con-

strued to impair or render ineffectual in any measure

the creation and existence of the industrial accident

commission of this State or the State compensation

insurance fund, the creation and existence of which,

with all the functions vested in them, are hereby rati-

fied and confirmed.”’