# Opposition Brief — FTC v. RF Keppel & Bro., Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0108%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1934 - **Citation:** 291 U.S. 304 ## Text be Page SEL WOO 6 6 wGGis 055 00k 60s ths caanctaraks Chedeaandeeeensynue 2 SEY INNES scars Nard ccandekesemesecenenana sed baseawecan 2 Statutes and regulations involved........ See he obec aSeneeaesanca 2 IE MOE OUND CIN ce cb ak 5 Gat 6 CONOR AICANA EEK ACK RRA RRR CAS 3 NE Gr NE A ck cca hea e RUS CAROLE UR cee eam 6 Argument, Point No. 1, “The Workmen’s Compensation Act of the State of Washington is Compulsory in Nature”.............. 7 Argument Point No. 2, “The Appellant was Deprived of No Vested ME IA CAREC A EAA KARE REARS ER ER KROES MwA Chace. 19 Argument, Point No. 3, “Rights Purely Statutory Fall With the Repeal of the Statute Creating Them’”’...................... 33 Argument, Point No. 4, “The Workmen’s Compensation Act is Remedial Legislation, and Creates No Vested Rights”....... 45 Argument, Point No. 5, “The Amendment is a Valid Exercise of ee CN OE Cn ck ta iGe Lunictaakuees un « Makes ee CER RR AS 59 Argument, Point No. 6, “The Unitcd States Supreme Court is Bound by the Interpretation of the State Law, as Decided by Te Tse Cees GE Wie TN a anon ccccccccccccccccccsccs 65 Argument, Point No. 7, “The Right to Sue a Sovereign May Be Withdrawn by the Sovereign at its Pleasure”............... 66 i a a aa 74 Appendix I, statutes and regulations involved.................. 76 CITATIONS | ; Page fe Se Fe ee re ones ae eee 30 Alabama G. S. R. Company v. Carroll, 97 Alabama 129, 11 So. 803 15 ree 49 ee ee Oe Oe i iekacdeveuneaeusnens 64 Bailey v. School Dist. No. 49, 108 Wash. 612 at 613.............. 37 ne a a ocle en kwaalge«ekcaan 67 Bennett v. Hargus, 1 Neb. 421.................... eee eee 41 ne ele ge pk he 64 Black’s -Law Dictionary, (2nd Edition) pp. 1203-1204............ 20 Ba RP NO ee ng a eee 20 CITATIONS—C ontinued Page Christenson v. Morse Dry Dock & Repair Co., 214 N. Y. S. 732, 740 47 Cohens v. Virginia, 19 U. S. 405.........- cece eee cece eee ee eens 68 Cooley on Constitutional Limitations, pp. 749-752..............- 31 Coombes v. Getz, 285 U. S. 434, 448.......... cece cece e eee ee eens 38-40 Continental Oil Co. v. Montana C. Co., SB Mont. BGO... .cencececs 41-42 Cooper Company v. Hammer, 250 U. S. 400........ 52sec ee eeeees 65 County of San Bernardino v. Industrial Accident Commission, 217 Cal. 618, 13 Pac. (2d) 829.......... cece cece cece ence eeeeeee 58 Crane v. Hahlo, 258 U. S. 146.......... cece eee e eee eee e eee ees 13 Crawford v. Halsted & Putnam, 20 Gratt. (61 Va.) 211.......... 51 Cudahy Company v. Parramore, 263 U. S. 418 at | eer Te 16 Davis v. Mills, 194 U. S. 451........ ccc cece eee eee eee eeneee 64 DeJoseph v. Standard Steel Co., 99 Pa. Super. Ct. 497........... 50 Denning v. Quist, 160 Wash. 681, 686...........2ee eee eee ee eeees 37 Dist. of Columbia v. Bslin, 183 U. S. 62.......... 0 cee cece eee eees 38 Dormidy v. Sharon Boiler Wks., 127 Fed. 485........----++ee005 15 Duquoin, et al. v. Industrial Commission, et al., 329 || i Se 58 Essex Public Road Board v. Skinkle, 140 U. S. 334, 340.......... 13 Ettor v. Tacoma, 228 U. S. 148........:e cece cece cece reece eeeees 39-40 Ex parte McCardle, 74 U. S. 506, 514.......... 2 eee ee eeeeeenees 33 Ferguson v. Department of Labor & Industries, 168 Wash. 677, OTD, GBB ww ccc ccc ccccccensccccccccccccnncsccccccsccscceases 54-65 Ferry v. Spokane P. & S. Ry. Co., 258 U. S. 314, Beek sseeivcasses 29 Flanigan v. Sierra County, 196 U. S. 553 at 561......... 35-36-3 8-65-66 Freeland v. Williams, 131 U. S. 405, 414, 420............+--+0-- 13-47 Garrison v. City of New York, 21 Wall. 196, 203...........-..++- 13 Gossen v. Township of Borgholm, 174 Minn. 229.........--++-+++ 46 Graves v. State Industrial Accident Commission, 112 Ore. Guay v. Brown Co., 83 N. H. 392, 142 Atl. rere re 46 Gwinn v. United States, 184 U. S. 669.......... cece eee eee eeenes 35 Holden v. Hardy, 169 U. S. 397..... 2... ee eee ee eee e eee e ee eeeees 12 Home Bldg. & Loan v. Blaisdell, 78 L. Ed. (Advance Opinions) BEG, BTL nc ccccccccccccnccvcvccecccccsscccccccecessesveses 47-64 Industrial Commission of Ohio v. Kamrath, 118 Ohio 1, 160 N. E. Re cia hesseh ben ShbGh00boseen sense oessensane 56 In re Duncan, 73 Ind. App. 270, 127 N. E. 289......---++seeeeees 46 In re Hogan, 129 N. E. 633, 75 Ind. App. 53........-+-eee eee eees 49 Insurance Company v. Ritchie, 72 U. S. Rep. 541 at 544...... (ae Ireland v. Shipley, Supra, 165 Maryland Rep. 90...........+-+-- 56-62 Jacobson v. Mass., 197 U. S. 11...... eee cece cece eee eee eeeeees 64 Johnson v. Jeddo Highland Coal Co., 99 Pa. Super. Ct. | Sea 50 ma lil CITATIONS—Continued Page Lane v. Industrial Commissioner of State of N. Y., 54 Fed. Rep. SEUNG Re WARES ARERR DAKE RCOR ED SAG DA EOS Od Kaae ooo anur 17 Se My WO anc cn canveuttndacadasacevecvaccace 64 SE Ts COO, Oe Oy Be Mh Ona tac inc cdnansasctsercedccaccac 56 Louisiana v. Mayor of New Orleans, 109 U. S, 285............... 38 Louisville & Nashville Rd. Co. v. Mottley, 99 Ohio 128, 219 U. S. OU sk WERRSA NAN WEENA 0645 SANNA News bubba DONA wad chEKRGe ce cdus 53 Lynch v, United States, 78 Advance Opinions, U. S. L. Ed. 997, BE KA. VewsAnA cach ebescekus SiN SASRORRMSADEWES KEKE ARE EAS 71 Marchuk v. Pittsburgh Terminal Coal Corp., 106 Penn. Sup. Ct. PE SN EDC CUCU uas cede cctyecnes cit ceelt cbcos unica 50-52 Mattson v. Department of Labor & Industries, 76 Wash. Dec. 255 654 Mickey et al. v. Barton, 62 N. EB. 802........... ccc ccc cccccewece 41 Morley v. Lakeshore & Michigan Southern Ry. Co., 146 U. S. 162, aE ee One Vy Pr OI aes tanh are ge ae Se 13 Moss v. Smith, 171 Cal. 788.............. ce hid ebkedhwihssceee Kenn 41 Mountain Timber Company v. State of Washington, 243 U. S. WUE SUNDER WAAREUGK ERs KOR EAT CIGAR ACO Ka eos NL aciaaus 11-16—45-63 Mullen v. Department of Labor & Industries, 157 Wash. 329, 382 vive ieststeniclrd ae LN eT EEE OEE TEETER RUT 22-25-53-5 4-65 cesar thse Ueecesnoe nec th cocBig Th EET OTT a tLe Bas 64 New London Northern Ry. Co. v. Boston & Albany Ry. Co., 102 , smucitnesl tion, Focasine Ce ECCT AE POET an Ct ee 41 Norris v. Crocker, 64 U. S. 429...............cccccccecd¥ecses., 33 North Alaska Salmon Company v. Pillsbury, 174 Cal. 1.......... 14 Northern Pac. Ry. Co. v. Meese, 239 U. S. 619... .. oo. cc ccc c ce 65 Obrecht-Lynch Corp. v. Clark, 130 Fed. (2d) 144...........2... 47 Ocean Accident & Guaranty Corp. Ltd. v. The Ind. Comm. of Ari- zona et al., 32 Ariz. 275, at 282, 257 Pac. 645............... 15 Ohio v. Helverling, 54 Ws Ms PN 6 sw dnd ca caanccudcas 69-70 Pacific Gas & Electric Co. v. By We OR, GR icin kovcvcenk naan 41 Pacific Mail Steamship Co. v. oliffe, 2 Wall. 450, 507............ 38 Pearsall v. Great Northern R. R. Co., 161 U. S. es 21 Preveslin y. Derby_& Ansonia Dev. Co., 112 Conn. 129, 15 Atl. 518 73 - Quong Ham Wet © ketene Commission, 255 U. S. 448........ 65 Raymond v. Industrial CPM, GOO TUR. BOB. os nn vcncccccscccccacs 47 Robinson yv. McHugh, 158 Wash. 157.......................0.... 37 Rohde v. State Ind. Acc. Commm., 108 Ore. 406... 0 ccc ccc cccccn 72 iv \ CITA TIONS—Continued Page Salt Co. v. East Saginaw, 80 U. S. Reports, 373, 377, 379......... 29 Schmeiling v. Dept. of Labor & Industries, 167 Wash. 692....... 54-65 South Carolina v. Gaillard, 101 U. S. 433................ Wkeka Sh cca i etales SSR 36 ship Company v. Joliffe, supra, but also committed itself to the doctrine that it would be bound by the decisions of the highest court of the state as to the rule followed in that state with relation to the effect of repealing statutes upon rights which had aecrued prior to the statute. In the Flanigan v. Sierra County case, an action was brought to recover the amount of a license ordained under an ordinance passed by the county May 31, 1900, under and by virtue of a county government act. The court, speaking through Mr. Justice McKenna, on page 560, in this case, used the following language in recog- nizing the rule as we have hereinabove set out as follows: ‘‘The general rule is that powers derived wholly from a statute are extinguished by its repeal. Suther- land on Statutory Construction, See. 165, And it follows that no proceedings can be pursued under the repealed statute, though begun before the repeal, unless such pro- ceedings be authorized under a special clause in the re- pealing act. 9 Bacon’s Abridgement, 226. ‘*In speaking of the rule as to enforeements of rights under repealed statutes, Endlich on the Interpretation of Statutes (sec. 480), says: ‘The same rule applies to rights and remedies founded solely upon statute, and to suits pending to enforce such remedies. If at the time the statute is repealed, the remedy has not been perfected or the right has not become vested, but still remains execu- tory, they are gone. * * *’’’ (Page 561) above citation. ‘‘Whether a statute of a State is or is not a revenue measure certainly depends upon the construction of that statute. Besides, if in any case we should lean to an agreement with the state court, this is such a case.’ (Page 562) above citation. This court follows the rule laid down by the highest state court. We need but to point to the decision in the ° ease at bar, reported at 76 Wash. Advance Decisions Number 5, 255, at page 257, for an enunciation of the 37 rule. The court in the case at bar on page 257 thereof, said as follows: ‘‘In each of the first two cases cited will be’found a considerable discussion leading to the holding that the workmen’s rights under the law existing at the time of the injury are purely statutory rights, and may be taken away at any time by the legislature, and therefore the limitation contained in the act of 1927, which is here com- plained of, is purely remedial and destroys no vested right.’’ At an early date the Supreme Court of the State of Washington recognized the above quoted principle to be the law in this state. See Bailey v. School Dist. No. 49,108 Wash. Reports, page 612, at 613. The above case was cited with approval by the Su- preme Court in the case of Robinson v. McHugh, 158 Wash., page 157. ‘‘Where a tort action ean be brought only by virtue of a statute, there can be no vested right therein, and the legislature may take away the right at any time.”’ This rule was again enunciated and followed in the case of Denning v. Quist, 160 Wash. 681, 686: ‘This act, according to the declaration of legislative policy therein contained, and its manifest purpose, should be classed as remedial legislation. * * * Rights of action vested by the act in favor of injured workmen (Robinson v. McHugh, supra) became there- after purely statutory rights, not common law rights. * * * This right being purely statutory, it was com- petent for the legislature to limit the same, and was ac- complished by the 1929 amendment, supra, and we are satisfied that the correct rule was laid down by this court in the case of Robinson v. McHugh, supra.’ The Supreme Court of the State of Washington has committed itself to the doctrine that rights which are 38 purely statutory in their inception may be taken away Aythe Legislature, at its will, before said rights are re- duced to final judgment. Under the doctrine of the Flanigan case, above cited, it would seem that this court a xX — } is hound by that rule of law. This court likewise has unvaryingly held to that principle as so announced in the Flanigan case. See United States v. Heinszen & Co., 206 U.S. p. 370; Loutsiana v. Mayor of New Orleans, 109 United States, page 285. * * * The obligation to make indemnity created by the statute has no more element of contract in it because merged in the judgments than it had previously. * * * The right to reimbursement for damages caused by a mob or riotous assemblage of people is not founded upon any contract between the city and the sufferers. Its hability for the damages is created by a law of the legislature, and can be withdrawn or limited at its pleasure.’’ Louisiana v. Mayor of New Orleans, supra; Pacific Mail Steamship Co. v. Joliffe, 2 Wall 450- 507. The rule contended for was likewise followed in the ease of District of Columbia v. Eslin, reported in Vol. 183 U. S. page 62. A very recent expression of opinion reiterating the rule to which the Supreme Court has steadfastly adhered was given in the case of Coombes v. Getz, 285 U.S. page 434, A California statute had provided that directors of corporations should be liable to the creditors for all monies embezzled or misappropriated by corporate offi- cers. Thereafter, this section of the law was repealed. The contention was made that this repeal constituted a law impairing the obligation of contract. The Supreme 39 Court, speaking through Mr. Justice Sutherland, quoting from page 442 of the above case, held as follows: ‘‘The right of this petitioner to enforce respondent’s liability had become fully perfected and vested prior to the repeal of the liability provision. His cause of action was not purely statutory. It did not arise upon the con- stitutional rule of law, but upon the contractual liability created in pursuance of the rule.”’ Here, again, this court followed the rule. Signifi- cantly Justice Sutherland draws the distinction that the right sought to be enforced in the instant ease under consideration was not a purely statutory right, and he himself italicized ‘‘purely,’’ but had its basis in the con- tractual liability created by the law. Justice Sutherland cites the case of Ettor v. Tacoma, 228 U.S. 148, and em- phasizes the fact that the right to recover against the city by virtue of the provision of the statute was vested com- pletely at the time of the repeal and was contractual in nature. Mr. Justice Sutherland goes on to cite the lan- guage used in the Joliffe case, supra, which is quoted on page 29 of this brief, said language being directed to- wards the emphasis of the proposition that when the rights are contractual, if they have vested before the statute is repealed, they remain in force, unabridged. But onthe other hand, if they are purely statutory in origin and creation, they fall with the repeal of the statute. It is enlightening to consider Mr. Justice Suther- land’s analysis of those California cases which estab- lished the rule ‘‘That where a right is created solely by a statute, and is dependent upon the statute alone, and such right is still inchoate, and not reduced to possession or per- fected by final judgment, the repeal of the statute de- Int aey te tev een Eee dis tee eras OE 40 stroys the remedy, unless the repealing statute contains a saving clause.’’ Coombes v. Getz, 285 U.S. p. 448. It is interesting to note further the language cited by Mr. Justice Sutherland on page 448 of the above de- cision as follows: ‘Tt is settled by decisions of this and other federal courts (Ettor v. Tacoma, and cases cited in connection therewith, supra) that, upon the facts here disclosed, a contractual obligation arose; and the right to enforce it having become vested, comes within the protection of both the contract impairment clause in Art. 1, See. 10, and the due process of law clause in the Fourteenth Amendment, of the Federal Constitution.’’ Counsel relies upon the decision in the case of Ettor v. Tacoma, reported at 228 U. 8S. 148, in support of his contention that a vested right may be acquired under a statute, irrespective of whether or not such right is purely of a statutory nature, or whether its origin springs from contract, and further that so long as this right is vested, the legislature may not enact legislation which in any way would interfere with the exercise of said right. It is of salient significance to note that Mr. Justice Sutherland reconciles the Ettor case to this gen- eral principle, by classifying it with those cases where the obligation is of a contractual nature. This decision would seem to establish the law, be- yond any question of doubt, that only in those cases where rights are contractual in origin is there any pro- hibition against subsequent legislative enactment which would interfere with the enjoyment of said right. If the right is purely statutory, and even though it be vested, said right is subject to be divested unless reduced to final judgment by action of the Legislature. ene SRA Abb RS sSNA AOS SNS TR a ite AD Van Dal a Re Pre 41 See, also, the late case of United States v. Chambers, 291 U. S. 223, decided February 25, 1934. The decisions of the state court recognizing the prin- ciple above set out are legion. The rule seems to be uni- formly adhered to by the highest courts of the several states. Continental Oil Co. v. Montana C. Co., 63 Montana p. 230; Moss v. Smith, 171 Calif. 788; New London Northern Railroad Co. v. Boston & Albany R. R. Co., 102 Mass. Rep. 386; Taylor v. Strayer, 78 N. KF. 236; Mickey et al. v. Barton, 62 NX. BE. Reporter 802. Bennet v. Hargus, 1 Neb. 421; Bueletin v. Palmer, 1 Hill N.Y. 332; eee € Elec. Co. v. State, 6 P. (2d), 214 Cal. 431. In 1927 the Legislature of the State of Washington amended the Workmen’s Compensation Act. The word- ing taken from Chapter 310 of the Session Laws of 1927, page 854, entitled See. 4, reads as follows: ‘*That section 4 of chapter 131 of the Laws of 1919, page 309, as amended by section 2 of chapter 136 of the Laws of 1923, page 387 (section 7679 of Remington's Compiled Statutes) be amended to read as follows: ‘“(h) If aggravation, diminution, or termination of disability takes place or be discovered after the rate of compensation shall have been established or compensa- tion terminated, in any case the director of labor and industries, through and by means of the division of in- dustrial insurance, may, upon the application of the beneficiary, made within three vears after the establish- ment or termination of such compensation, or upon his own motion, readjust for further application the rate of compensation in accordance with the rules in this section provided for the same, or in a proper case terminate the payment: Provided, Any such applicant whose compen- sation has heretofore been established or terminated — shall have three years from the taking effect of this act within which to apply for such readjustment.’’ (Session Laws, 1927, Subd. (h).) 42 This particular subdivision of the Workmen’s Com- pensation Act has remained unchanged, since the original enactment in 1911. However, from time to time, it has been re-enacted in the Laws of 1923, and then thereafter in the Laws of 1929, in the same language as originally appeared in 1911. It is a well settled rule of statutory construction that whenever the Legislature declares that an existing statute is to be amended ‘‘to read as follows,”’ ete., it thereby evinces an intention to make the new Act a substitute for the old one and that so much only of the original Act as is repeated in the new one is continued in foree, and all portions omitted from the new Act are repealed. Continental Oil Co. v. Montana C. Co., 63 Mont. 223. The Legislature, in the enactment of the 1927 Amendment, as above set out, repealed the provisions of this particular subdivision as originally contained in the Workmen’s Compensation Act in all respects wherein the 1927 act differed, and was inconsistent with the lan- guage contained in the section as it previously stood. The law of 1927, Section IV, Subdivision (h), as it was then enacted perforce must supersede and extinguish the provision contained in the law which the legislature enacted it to amend. The original language of this par- ticular provision as it last stood upon the statute books of the State of Washington appeared in the 1923 Session Laws at Chapter 136, Section 2, Subdivision (h) thereof, as follows: AS — — 43 ‘“‘(h) If aggravation, diminution, or termination of disability takes place or be discovered after the rate of compensation shall have been established or compensa- tion terminated, in any case the Department may, upon the application of the beneficiary or upon its own motion, readjust for further application the rate of compensa- tion in accordance with the rules in this section provided for the same, or in a proper case terminate the payment.”’ (Session Laws, 1923, p. 397.) It is manifest that since Subdivision (h) of Section IV of Chapter 310 of the Laws of 1927, in so far as it is inconsistent with Subdivision (h), Section (2) Chapter 136 of the Laws of 1923, supersedes and abolishes those provisions of the 1923 statute in which it differs. The section of the 1923 statute, above referred to, provided no limitation within which a workman might apply for a re-opening of his claim after the termination of compen- sation or the establishment of compensation. The 1927 amendment provided that application for re-adjustment upon the grounds of aggravation, diminution or termina- tion of the disability was to be made within three years from either the date of the establishment or the date of termination of compensation. The wisdom of this legis- lation is not a matter for judicial review. Suffice it to say that in the efficient administration of the act in order _ to impose the costs for accidents where they properly should fall, the Legislature deemed it necessary that the eosts which would accrue from any claim should be de- eided within a definite period of vears. It needs no quotation of authority to establish that the common law knew nothing in the nature of a Work- men’s Compensation Act. The right of a workman to receive compensation and medical attention at the ex- 44 pense of the industrial insurance fund is purely a crea- ture of the statute, having its inception, origin and crea- tion in the statute, being dependent for its continued existence upon the statute. Since such rights as the workman enjoys are under the Workmen’s Compensation Law in this state, and since it partakes not of the nature of a contractual obligation inevitably it follows from the the light of the foregoing authority that upon the repeal of the statute all those rights which are dependent upon the statute fall with the statute to which they owe their creation, saved solely as they are kept alive by the saving clause. Applying this general rule to the facts in the instant ‘ase, it is obvious that the rights of the appellant, such as they were, must be governed by the law as it was amended in 1927. The right conferred by statute which the appellant deemed himself entitled to, that is, to pre- sent an application for re-opening in the event the con- tingency of a changed physical condition developed at any time during the remainder of his life was taken away not only from him, but from all workmen, whether they had ever been injured or not, since the statute did not constitute a contract, but was to the contrary a matter of general legislation, unless filed within time provided by statute. However, the amendment which provided that the claimant must file an application for re-opening his claim, as above set out, within three years from the date of termination of his claim, preserved the continuing power, without limitation of time to re-open the claim upon his own motion at any time in the Director of the ane SIS Sen AB Ne ae ABS Sa, PO So tl EY AY 2 ene caer eS ae eS | al 45 Department of Labor and Industries, so that only as a matter of absolute right to have his claim re-opened, has the position of the appellant been affected by the 1927 Amendment. 4 THe WorkMen’s Compensation Act 1s Remepiau Lecis- LATION AND CONSEQUENTLY Creatrs No Vestep Riguts That the majority of aecidents which occur in in- dustry under its present highly mechanized and complex nature occur either entirely without fault on the part of the employer or under such circumstances as would bar the employee from recovery by reason of his contribu- tory negligence is commonly known. It has been widely accepted by the courts of various jurisdictions that the Workmen’s Compensation Laws are highly remedial in character. Attention is called to the case of Wountain Timber Co. v. State of Washington, reported at 248 U. S. 228, wherein Mr. Justice Pitney, speaking for the court, cites the provision of the Washington Act which sets forth the declaration of the police power of the state in rela- tion to withdrawing all matters under the act from pri- vate controversy, and wherein the court notes that sure and certain relief, regardless of fault, is to be accorded to the workmen injured in extrahazardous work, and their families and dependents. This court, in the case of New York Central Rail- road Company v. White, 248 U. S. 168, decided the same day by Mr. Justice Pitney, speaking for the court in con- sidering the character of the legislation, said as follows: 46 ‘Tt is plain that, on grounds of natural justice, it is not unreasonable for the State, while relieving the em- plover from responsibility for damages measured by common-law standards and payable in eases where he or those for whose conduct he is answerable are found to be at fault, to require him to contribute a reasonable amount, and according to a reasonable and definite scale, by way of compensation for the loss of earning power incurred in the common enterprise, irrespective of the question of negligence, instead of leaving the entire loss to rest where it may chance to fall—that is, upon the in- jured employee or his dependents.”’ For a complete consideration of the remedial char- acter of the act, see the ease of State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 165, and more particularly the language contained on pages 175 and 210 thereof. Attention is directed to the ease of In re Duncan, 73 Indiana Appeals, page 270, 127 N. EK. 289. The court in that case said: ‘*The Workmen’s Compensation Act sought the cor- rection of recognized errors and abuses by introducing new regulations for the advancement of the publie wel- fare. Being remedial in character, it should be construed with regard to former laws and the defects or evils to be corrected and the remedy provided.’’ See also: Guay v. Brown Company, 83 N. H. p. 392, 142 Atl. 699 ; \ Gossen v. Township of Borgholm, 174 Minn. p. 229; Rothschild & Co. v. Marshall, 44 Fed. Rep. (2d) 548. This court, in considering the nature of the Work- men’s Compensation Act, in the ease of Southern Pacific Co. v. Jensen, 244 U.S, 205, at page 218, said as follows: “The remedy which the Compensation Statute attempts to give is of a character wholly unknown to the common law, incapable of enforcement by the ordinary es nse MR ae Pct Ce a a oe ees cs ee ee ae OO ee Ne PE Oe a) ee Tee at 47 processes of any court and is not saved to suitors from the grant of exclusive jurisdiction. ’’ * See also: Christensen v. Morse Dry Dock and Repair Co., 214 N. Y.S. p. 732, at p. 740; Newman Co. v. Industrial Couiissien, et al., 187 N. E. 137, at 138; Raymond v. ledustvial Com., 354 Illinois, 586. It becomes apparent upon an analysis of the cases that remedial legislation falls into two catagories, first, that legislation which goes solely to procedure, and is concerned with those things only that provide the method for the enforcement of substantive rights. The law is well settled that there is no vested interest in matters of remedy, and that the remedy in each instance may be changed, modified and altered by the legislature, pro- vided that there is a substantial remedy remaining for the enforcement of the substantive right. This principle of law is conceded by appellant. See: Terry v. Anderson, 96 U.S. 628: South Carolina v. Gaillard, 101 U.S. 433; The Collector v. Hubbard, 79 U.S. Rep. 1, at p. 14; Freland v. Williams, 131 U.S. 420; Home Bldg. & Loan v. Blaisdell, 78 L. Ed. Ad- vance Opinions, 255. Particularly pertinent not only in support of the theory under discussion at the present moment, but also singularly applicable to the facts in this case, is the lan- guage of this court used in the case of Wisconsin & Michigan Ry. Co. v. Powers, 191 U. S. 379 at 387, as follows: ‘‘The broad ground in a case like this is that, in view of the subject matter, the legislature is not making wage fe oT) pale ere iia 4 48 promises, but framing a scheme of public revenue and public improvement. In announcing its policy and pro- viding for earrying it out it may open a chance for bene- fits to those who comply with its conditions, but it does not address them, and therefore it makes no promise to them. It simply indicates a course of conduct to be pur- sued, until circumstances or its views of policy change. It would be quite intolerable if parties not expressly addressed were to be allowed to set up a contract on the strength of their interest in an action on the faith of a statute, merely because their interest was obvious and their action likely, on the fact of the law.’’ It is an accepted concept, as above pointed out, that workmen’s compensation laws, are, in their nature, remedial. It beéémes pertinent to consider whether or not those general principles of law applicable to the power of change of procedure and remedy by the legis- lature are to be applied to this character of remedial legislation. In its fundamental essence, the Workmen’s Compensation Act is not based upon negligence. Legisla- tion of this sort was born out of social expediency. It is not based, as above pointed out in this brief, upon theory of fault. Even though from a broad and general viewpoint - of natural humane rights a natural right is recognized by society in the workman to be provided for in the case of injury regardless of fault, still, from the standpoint of vested rights, this sort of legislation creates no prop- erty rights. It is purely dependent upon the concept of the public welfare. It is subject to change, since it has its origin in the theory of publie welfare. Those rights conferred may be changed, modified and altered or with- drawn as the public welfare dictates. It is imperative that in order to accomplish the purposes for which this 49 type of legislation was enacted that it remain plastic and capable of being molded, changed and altered to meet those ever-changing developments so characteristic of contemporary life. This constitutes the second category of remedial legislation. This is the theory upon which the rule of law is based that when the rights are purely statutory and owe their continued existence to the continuation of the stat- ute from whence they sprang, they fall with the repeal of the statute. Singularly applicable to a discussion of the nature of rights created by the Workmen’s Compensation Act with reference to their remedial character and concerned with the type of right conferred, whether vested or not, is the case of Allen v. Mottley Construction Co., 160 Va. 875, decided by the Supreme Court of the State of Vir- ginia June 27, 1933. That case involved exactly the same situation in fact and in principle as is presented in the case at bar. The court, in considering the problem, held first, that it was indispensable that in order for there to be a basis for consideration of a claim for re-opening, there must have been an actual change in physical con- dition, since final payment had been made. It is interesting to note that this court cited the Ap- pellate Court of Indiana, Division No.1, in the ease of In re Hogan (75 Ind. App. 53) 129 N. FE. 633, on certifica- tion of the question by the industrial board of that state, as follows: ‘**The board shall not make any such modification upon its own motion nor shall any application therefor be filed by either party after the expiration of one year from the termination of the compensation period fixed in 50 the original award, made either by an agreement or upon hearing.’ ‘*The court, in giving this part of the section a retro- active effect, said: ‘**It is a statute of limitations. Such statutes are considered necessary to the welfare of society. They are enacted on the presumption that one having a well-found claim will not delay enforcing it. They neither create nor destroy rights, but pertain to the remedy solely.’ ’’ Thereafter, the Virginia court proceed to cite the ease of Marchuk v. Pittsburgh Terminal Coal Corp. (106 Pa. Super. Ct. 249) 161 Atl. 771, saying: ‘¢ A fund is hereby created in the state treasury to : be known as the medical aid fund. Into it shall be paid by each employer on or before the 15th day of September, 1923, and on or before the 15th day of January, May and September of each year thereafter for each day’s work or fraction thereof done for him in extrahazardous employment in or during the preceding four calendar months the medical aid rate provided in Sections 7676 and 7712 of Remington’s Compiled Statutes. (Super- seded by Section 7676 as amended.) The employer shall deduct from the pay of each of his workmen engaged in extrahazardous work one-half of the amount the employer is required by the foregoing provision of this section to pay into said fund for or on account of the employment of such workman. STATE EX REL. BOSWELL, OHIO AGGRAVATION STATUTE: ‘‘The powers and jurisdiction of the board over each ease shall be continuing, and it may from time to time make such modifications or change with respect to former findings or order with respect thereto, as, in its opinion may be justified. Provided, however, that no t such modification or change or any finding or award in respect of any claim whether filed heretofore or here- after shall be made with respect to disability, compensa- tion, dependency, or benefits, after ten years from the last payment theretofore made of compensation or bene- 79 fits awarded on account of injury or death, or ten years after the injury in case of which no compensation ever has been awarded.’’ State ex rel. Boswell v. Industrial Commission of Ohio, 125 Ohio State Reports, 345. CODE OF MARYLAND, SECTION 40, ARTICLE X: ‘“‘If changes or circumstances warrant an increase or rearrangement of compensation, like application shall be made. No increase or rearrangement shall be opera- tive for any period prior to application therefor.’’ CODE OF MARYLAND, SECTION 43, ARTICLE X: “Tf aggravation, diminution or termination of dis- ability takes place or be discovered after the rate of compensation shall have been established or compensa- tion terminated in any case, the commission may, upon the application of any party in interest or upon its own motion, readjust for future application the rate of com- pensation in accordance with the rules in this section provided, or in a proper case, terminate the payments.”’ REMINGTON’'S REVISED STATUTES OF THE STATE OF WASH- INGTON, SECTION 7697: Whenever the department of labor and industries has made any order, decision or award, it shall promptly serve the claimant, employer or other person affected thereby, with a copy thereof by mail, which shall be addressed to such claimant, employer or person at his last known address as shown by the records of the depart- ment. Any claimant, employer or other person aggrieved by any such order, decision or award must, before he appeals to the courts, serve upon the director of labor and industries, by mail or personally, within sixty days 80 from the day on which such copy of such order, decision or award was communicated to the applicant, an applica- tion for rehearing before the joint board of said depart- ment, consisting of the director of labor and industries, the supervisor of industrial insurance and the super- visor of safety. Such application shall set forth in full detail the grounds upon which the applicant considers such order, decision or award is unjust or unlawful, and shall include every issue to be considered by the joint board and it must contain a detailed statement of facts upon which such claimant, employer or other person relies in support thereof. The claimant, employer or other person shall be deemed to have waived all objec- tions or irregularities concerning the matter on which such rehearing is sought other than those specifically set forth in such application for rehearing or appearing in the records of the department. If the joint board, in its opinion, considers that the department has previously considered fully all matters raised by such application it may, without further hearing, deny the same and con- firm the previous decision or award, or if the evidence on file with the joint board sustains the applicant’s con- tention, it may, without further hearing, allow the relief asked in such application; otherwise, it shall order a rehearing to decide the issues raised. If a .rehearing be granted it shall be heard in. the county of the resi- dence of the applicant at a place designated by the joint board, but the hearing thereof may be adjourned from time to time and from place to place within said county, as the convenience of witnesses may require. Such re- hearing shall be de novo and summary, but no witness’ testimony shall be received unless he shall first have been 81 sworn to testify the truth, the whole truth and nothing but the truth in the matter being heard, or unless his testimony shall have been taken by deposition according to the statutes relating to superior courts of