Thomas v. Pennsylvania Railroad

*511 Bond, C. J., delivered the opinion of the Court. The question principally argued in this case is whether compensation is allowable for the accidental death of a railroad freight conductor under the Workmen’s Compensation Act of Maryland, rather than under the Federal Employers’ Liability Act (45 H. S. Code Ann., secs. 51-59). Another question has arisen, in this case and another, from the offers by the claimants, on the appeals below, of oral testimony, notwithstanding the provision of the Acts of 1931, ch. 406 (Code, art. 101, sec. 56), that questions of fact should be tried on the record of the original proceedings before the State Industrial Accident Commission, or upon a stipulation of the parties on the facts. The evidence in this case was all in agreement on the facts, and the finding of the commission in accordance with those facts is, on appeal, to be taken as correct in the absence of any proof to the contrary. Section 56. The testimony was that Howard Franklin Thomas, husband of the claimant, was employed by the Pennsylvania Eailroad Company as a freight conductor, working in the Highland Yards in Baltimore City. On May 27th, 1930, he received an order from the assistant yardmaster to supply a broom factory, that of the Atlantic Southwestern Broom Company, two especially dry cars for shipments of brooms to Brooklyn, New York, and Hewark, New Jersey. Thomas was directed to take an engine and bring fourteen cars from a track by the Philadelphia Pike, and bring them all down, so that two suitable cars might be selected and placed on the broom company’s siding for the shipments. lie and his engineer examined each of the fourteen cars at the Philadelphia Pike, and chose the third and last in the string. They then brought the fourteen cars down the yard, cut oxxt the two selected, one by one, placed them on what is called a soxxth track, and placed the remaining twelve on a Ho. 2 track. Then they were going back to the south track, to put the selected cars on the broom company’s siding, when Thomas received the injuries which resulted in his death. Upon this evidence the State Industrial Accident Commission disallowed the *512 claim under the Maryland Workmen’s Compensation Act, and the claimant entered an appeal to the Baltimore City Court. Upon that appeal, the claimant elected to have the questions of fact involved submitted to a jury. Issues prepared for answers by the jury presented questions of law as much as of fact, and were not adapted for the guidance of a jury. The questions were: Whether the commission erred in finding that the injury was not compensable under the Maryland act, whether it erred in finding that it was without jurisdiction of the claim, and whether at the time of injury Thomas was engaged in intrastate commerce. Gold Dust Corp. v. Zabawa, 159 Md. 664, 669, 152 A. 500; Baltimore Publishing Co. v. Hendricks, 156 Md. 74, 79, 143 A. 654. But, as the court disposed of the questions by rulings on the law, no difficulty resulted from the scope of the issues. At the opening of the trial on the appeal below, an offer was made on behalf of the claimant to produce oral testimony from the witnesses who had testified before the commission, and the exclusion of the additional testimony by the trial court, in accordance with the Act of 1931, ch. 406, forms,the subject of the first exception. The act was passed subsequently to the disposition of the case before the commission, which was on November 26th, 1930, and the appeal, too, had been entered on November 28th, 1930. The act became effective on June 1st, 1931, and the hearing or trial before the Baltimore City Court took place later, in September of 1931. The appellant denies the propriety of construing the act to have a retrospective operation, so that it should apply to prevent the production of the witnesses again on an appeal which had been taken before the passage of the act and the date of its effectiveness. And the argument is based on the principles that the Legislature mu§t, if the language and operation of the statute permit it, be presumed to have intended not to cut off rights already attached, by removing grounds of pending appeals, or changing the existing procedure to the disadvantage of litigants, and in workmen’s compensation cases not to depart from the liberal attitude *513 required to accomplish the purposes of the Workmen’s Compensation Act. Dryden v. Baltimore Trust Co., 157 Md. 559, 563, 146 A. 752; Bartlett v. Ligon, 135 Md. 620, 626, 109 A. 473; Grove v. Todd, 41 Md. 633, 641; Grinder v. Nelson, 9 Gill, 299; Frazier v. Leas, 127 Md. 572, 575, 96 A. 764. But we see no escape from construing the restriction to apply to the previous appeals. The enactment is that “the court shall, from the record made before the commission (or upon any stipulation of the facts * * *), determine whether the commission has exceeded the powers granted it * * * and whether it has misconstrued the law and facts applicable in the case decided as disclosed by the record aforesaid or such stipulation.” The words are comprehensive and admit of no exception. They constitute the only provision for appeal now in force, the former provision having been repealed in the enactment of this one, without any saving clause respecting existing appeals; and the appellant can have only the existing law applied to govern her appeal. Madigan v. Workingmen's Bldg. Assn., 73 Md. 317, 321, 20 A. 1069; Elliott v. Elliott, 38 Md. 357, 361; Southerland v. Norris, 74 Md. 326, 328, 22 A. 137; State v. Jones, 21 Md. 432, 438. The law as it now stands gives a right to the restricted use of the jury, or to no use of the jury at all. We do not understand the appellant to question the constitutionality of applying the restriction retrospectively, but the appellee has argued in anticipation of such an objection, and since the argument in this case the court has heard argument in another case, at the succeeding term of court (Celanese Corporation v. Lease, 162 Md. 587, 160 A. 801), on a question of constitutionality in restricting review by a jury in any proceeding to evidence not taken before them. On the objection that a retrospective operation is unconstb tutional, it is to be observed that it deprives the appellant of no property or rights in an existing contract, and no right of action or ground of recovery. She is not denied the benefit of proof of the facts. The provision is merely procedural, designating the source or repository of the evidence on the *514 facts for the jury’s review. Grove v. Todd, 41 Md. 633, 641; Grinder v. Nelson, 9 Gill, 299; Bartlett v. Ligon, 135 Md. 620, 109 A. 473. It is to be presumed that ordinarily the commission before which a claim is made has the supporting facts laid before it. The system calls for the facts to be laid Before it, and they must Be laid before it if the machinery devised is to be permitted to do the work assigned to it. In some other jurisdictions it has been regarded as unreasonable and unfair to permit the introduction of additional evidence on an appeal from the commission. Poccardi v. Ott, 82 W. Va. 497, 96 S. E. 790. And, in the exercise of the peculiar function committed to courts under the provision included in the Maryland act, that of determining in a proceeding in the nature of an appeal whether the commission has exceeded the powers granted it by the article, and whether it has misconstrued the law and the facts applicable in the cases decided, it is surely not illogical that the review should be confined to the facts which the commission has construed. Such is the practice in some of the other states. In nearly half of the state acts in this country and in federal acts, finality is given to findings of the commissions on facts. Southwestern Surety Ins. Co. v. Pillsbury, 172 Cal. 768, 158 P. 762; Pace v. Appanoose County, 184 Iowa, 498, 168 N. W. 916; Bates & Rogers Co. v. Allen, 183 Ky. 815, 210 S. W. 467; Ridge Coal Co. v. Industrial Commission, 298 Ill. 532, 131 N. E. 637; Davis v. Smith, 262 Pa. 432, 105 A. 559. And taking up the objection to use of the jury with a restriction as to the source of the evidence to be reviewed, an objection which, now that it has been raised, must be considered before it can be decided whether the ruling in this present case was right or wrong, it is settled for us at the start that, in this special, peculiar, proceeding before the court, which the Legislature has devised, it is not required by the Constitution that any jury at all shall be allowed. The Legislature is free to shape the proceeding without giving an option to the use of a jury on the facts. Branch v. Indemnity Ins. Co., 156 Md. 482, 489, 144 A. 696. It is *515 conceded, indeed, that here, too, no review of facts need be allowed, that a right of review might be given on the law only, as in the familiar instance of appeals from rulings of the State Tax Commission. Code, art. 81, sec. 253; Fidelity Trust Co. v. Gorman, 134 Md. 332, 106 A. 847; Industrial Corp. v. State Tax Commn., 134 Md. 379, 106 A. 852; State Tax Commn. v. Baltimore County, 138 Md. 668, 672, 114 A. 717. Other instances of appeals so limited are mentioned in the opinions in those cases. In the recent case of Crowell v. Benson, before the Supreme Court of the United States, 285 U. S. 22, 52 S. Ct. 285, 291, 76 L. Ed. 369, the opinion, by the Chief Justice, considering the finality given to a commissioner’s finding on the facts under the Longshoremen’s and Harbor Workers’ Compensation Act (33 U. S. Code Ann., secs. 901-950), said there could be no doubt of the intention that it should be final, and that, “to hold otherwise would be to defeat the obvious purpose of the legislation to furnish a prompt, continuous, expert, and inexpensive method for dealing with a class of questions of fact which are peculiarly suited to examination and determination by an administrative agency specially assigned to that task, -x- * x- qpg uge 0p administrative method for these purposes, assuming due notice, proper opportunity to be heard, and that findings are based upon evidence, falls easily within the principle of the decisions sustaining similar procedure against objections under the due process clauses of the Fifth and Fourteenth Amendments.” Here the Legislature has allowed more than this minimum; there is a review allowed on the facts, by the court, or, if either party should demand it, then by a jury. And the objection now is to this voluntary use of the jury for the limited purpose of reviewing the testimony before the commission. It is an objection that a jury cannot be used in any other than the familiar, customary manner, that it cannot be used for the purposes of a pure appeal, but can be used only in a proceeding de novo. There is no constitutional provision which prescribes a single method of informing twelve men of the facts on which their judgment is to be taken. If there is any obstacle to *516 the method which the Legislature has decided upon in this present statute, it must apparently be found in custom only. We must say that custom permits a jury to be made use of in only the one way, and we must elevate the custom into a constitutional restraint upon the lawmaking power. Is it clear, in the first place, that custom fixes such a narrow character and' utility on any twelve men called to- serve as a tribunal ? And, if it does, what is there- to give the custom greater force than an act of assembly, such that, while the Constitution does not require any jury at all, custom serves to forbid the utilization of twelve men within limits which the Legislature finds to be desirable? The uses regularly made of juries are in fact varied. Without considering those of the earlier common law, and the methods- then followed to- inform the jury of the facts (Thayer, Preliminary Treatise on Evidence, 90-136), we have illustrations in Maryland of latitude in using them. In criminal cases they are judges of both law and facts. Const, art. 15, sec. 5. In the more familiar civil proceedings they are confined to evidence produced before them for their information on the facts, while in condemnation cases they are to be informed not only by that evidence but by their own investigation and knowledge as well. Tide Water Canal Co. v. Archer, 9 G. & J. 479, 489; Compton v. Susquehanna R. Co., 3 Bland, 386, 389, 390; Consolidated Gas Co. v. Baltimore, 105 Md. 43, 53, 65 A. 628; Baltimore v. Hurlock, 113 Md. 674, 684, 78 A. 558. In Maryland there are juries to serve in proceedings before sheriffs, such as upon a writ de lunático inquirendo-. And it is a familiar fact that in the past juries have- been used to aid sheriffs and other officers in ascertaining what property was left by decedents, and what was liable to- escheat, in surveys of estates of minors and resurveys of land in ejectment proceedings. Kilty, Landholder’s Assistant, 174, 184, 217; Shaw v. Lynes, 1 H. & McH. 16, 18, and note; 2 Poe, Pl. & Pr., sec. 470. Juries are commonly permitted to render verdicts on agreed statements of fact.' In this present act there is a provision that their information as to the facts may be derived from a stipulation, and there is no objection that this is a per *517 version of the uses of a jury. All this seems to show that custom permits, some latitude in the use of laymen as a tribunal. And, if custom so far has not contemplated use of the jury for the review desired under this act, we see nothing to restrain the Legislature from enlarging the custom. So long as the option to use a jury is entirely a matter of the Legislature’s volition, the Constitution not requiring it, there seems to be no reason why, in the exercise of that freedom, and in the extending of that privilege, it should not provide as much or as little function for the jury as it finds desirable, or allow the limited use as well as the use which is made familiar in ordinary common-law proceedings. The court has been referred to two decisions in the State of Ohio that a statutory provision, confining the jury, allowed on an appeal under a Workmen’s. Compensation Act, to the record of the commission, is invalid. Industrial Commission v. Hilshorst, 117 Ohio St. 337, 158 N. E. 748, said Industrial Commission v. Sylva, 30 Ohio App. 208, 162 N. E. 777. The ground of decision in the first was that the provision was repugnant to other provisions in the act, and must fall for that reason, but the later case in the intermediate court seems to have placed the decision on unconstitutionality of the provision. The reasoning which was thought to require that conclusion is not given. The point is not argued. We can only say that the reasons stated in this opinion seem to this court to require the other conclusion. Even if the restriction of the jury to the record could be held unconstitutional, there might still remain a question of difficulty to be disposed of before it could be determined that a privilege of producing new testimony before the jury existed. As has been noticed earlier in this opinion, the restricted review by the jury is all that the Legislature has now allowed; the unrestricted review has been stopped by the repeal of the provision of the old law which permitted it. Invalidation of a restricting part of a provision does not install the shorn remnant as the law, for the Legislature has not so enacted. “Where an excepting provision in a statute is found unconstitutional, courts very generally hold that *518 this does not work an enlargement of the scope or operation of other provisions with which that provision was enacted and which it was intended to qualify or restrain.” Davis v. Wallace, 257 U. S. 478, 484, 42 S. Ct. 164, 166, 66 L. Ed. 325. “It is by a mere figure of speech that we say an unconstitutional provision of a statute is ‘stricken out.’ Eor all the purposes of construction it is to be regarded as part of the act. .The meaning of the Legislature must be gathered from all they have said, as well from that which is ineffective for want of power, as from that which is authorized by law.” State v. Dombaugh, 20 Ohio St. 167, 174. If the restricted use of the jury should be invalid, it might be questioned whether any review by a jury would be available except by way of invalidation of the whole act of 1931, leaving the previous act unrepealed and in force as expressing the intention of the former Legislature which enacted it. But the question need not be considered further if the qualifying or restricting clause here is found valid. And this court does find that it is valid. Ho error is found in the ruling made the subject of the first exception in the case now before the court. The second exception, that upon which the question of the interstate or intrasate character of the work being done by the deceased arises, was to' an instruction given to the jury that the work was in interstate commerce, and therefore compensation was not allowable under the state act. The general guiding principles for distinguishing between work of the one description and the other, within the meaning of the law, have been fully discussed in the recent case of Boyer v. Pennsylvania Railroad Co., 162 Md. 328, 159 A. 909, at the January term of court, and repetition is unnecessary. The distinction, when both kinds of work are carried on by the same employees in the same yards, must frequently be narrow and difficult to draw. But, in the several decided cases in which the work being done at the time of injury has been substantially the same as that being done by Thomas at the moment, moving or going to move to the place of loading cars assigned for interstate transportation, there appears to be general agreement among courts of the country that the *519 injury is to be classed as one sustained in interstate commerce. Many somewhat similar cases may be found reviewed in the notes to the United States Code Annotated, title 45, pp. 148 to 153. In Moyer v. Pennsylvania R. Co., 247 Pa. 210, 93 A. 282, this classification was given to an injury sustained in shifting a car to a yard where it would later be loaded with an interstate shipment. Another injury in shifting a car for interstate loading was so classified in Christy v. Wabash R. Co., 195 Mo. App. 232, 191 S. W. 241. And in Jeneary v. Chicago & Interurban Traction Co., 225 Ill. App. 122, affirmed in 306 Ill. 392, 138 N. E. 203, two empty cars were being shifted to a factory for an interstate loading, as in this case, and an injury which occurred then was likewise held to be one sustained in interstate commerce. The same conclusion on similar facts had been previously announced in Chicago Junction R. Co. v. Industrial Board, 277 Ill. 512, 115 N. E. 647. And see Jarvis v. Chic., B. & Q. R. Co. (1931), 327 Mo. 428, 37 S. W. (2nd) 602. And in the present case, even without the confirmation afforded by the decisions cited, wTe could not avoid the conclusion that a workman engaged in procuring and placing cars to receive and carry interstate shipments was engaged in interstate commerce as defined in the authorities. The entire task seems to have been only the first part of an interstate undertaking. We see mr error in the ruling made the subject of the second exception. Judgment affirmed, with costs.