I find no provision in the Workmen's Compensation Law (Act 319 of 1939) or in the Interpleader Act (Act 141 of 1943), or in any other constitutional or statutory provision in this State, that allows the Workmen's Compensation Commission, or the individual members thereof, in a case like the one here, to sue or be sued. The Commissioners, in their official capacity, were joined as defendants in this case; and they answered as such. I am strongly of the opinion that there does not exist the privilege of suing, or the liability of being sued in a case like the one here. This question was not presented by counsel, but presents itself as a jurisdictional matter; and I think the majority sets a dangerous precedent in this regard.
But, over and beyond the above point, I am impelled to dissent, because (1) I think the majority has construed Act 141 of 1943 to work a repeal by implication of certain provisions of 19 of the Workmen's Compensation Law, and (2) a construction of the Interpleader Act could and should have been adopted which would have given *Page 9 full force and effect to the Workmen's Compensation Law, as well as the Interpleader Act. That repeals by implication are not favored is established by scores of cases in this State. See West's Arkansas Digest, "Statutes," 158, where these cases are collected.
I. The Majority Opinion Works a Repeal of Certain Provisions in the Workmen's Compensation Law. Section 19(a) of the Workmen's Compensation Law says that compensation payments may be made without an award. Section 19(b) says "compensation shall be made in installments semi-monthly, except where the Commission determines" that the payments should be at some other interim. Section 19(j) says "whenever the Commission determines, . . . that it is for the best interests of the person entitled to compensation that the liability of an employer for such compensation may be discharged by the payment of a lump sum," the Commission may make an order to such effect.
In other words, by the Workmen's Compensation Law, the Commission is vested with discretion to decide whether the best interests of Mrs. Gilbert and her children would be served by making the compensation payments in a lump sum or over an extended period of time. I have emphasized the word compensation to show that the Commission has jurisdiction over compensation payments as well as awards. The majority opinion in the case at bar seeks to differentiate between compensation and award; and seeks to justify the right of the Chancery Court to make a lump sum payment, on the basis that there had never been an award. Section 19 of the Workmen's Compensation Law refers to compensation payments, rather than awards; and the majority has allowed the Interpleader Act to take from the Commission its discretion regarding lump sum payments on a distinction between award and compensation, whereas 19 applies equally to compensation.
Before the passage of Act 421 of 1943, the Commission had discretion and jurisdiction to determine whether payments should be in a lump sum, or at stated intervals. *Page 10 The majority opinion allows this Act 141 of 1943 to repeal by implication that discretion and jurisdiction of the Commission. It is an implied repeal, because there is nothing in Act 141 of 1943 even referring to the Workmen's Compensation Law.
II. A Construction Could and Should Have Been Adopted Which Would Not Have Effected Such Repeal. The insurance carrier (Commercial Standard Insurance Co.) invoked the Workmen's Compensation Law under the "gentlemen's agreement" (referred to in paragraph three of the majority opinion) before the trial of the damage suit against the railroad company; and that invoking of the benefits of the Workmen's Compensation Law by the insurance carrier put the Workmen's Compensation Law into play between the parties, whether the compensation had been made with or without any formal award.
The railroad company could have filed its interpleader in the chancery court under Act 141 of 1943, and the insurance carrier could have intervened and set up its rights under 40 of the Act. The court could have determined the attorneys' fees, and determined that the sum of $5,540 of the balance would be paid to the Workmen's Compensation Commission to be held by that Commission and paid to the insurance carrier when, as, and if the insurance carrier discharged its obligations to Spicer Construction Co., and Mrs. Gilbert and her children. Authority for the payment of the money to the Workmen's Compensation Commission, and by it to the State Treasury, is found in 48 of the Workmen's Compensation Law. If the interpleader had been handled as above indicated, no lump sum payment would have been made to Mrs. Gilbert and her children in violation of the discretion and jurisdiction of the Workmen's Compensation Commission; and at the same time the insurance carrier would have received full protection and no repeal of any provision of the Workmen's Compensation Law would have been effected by Act 141 of 1943.
Because of the matters stated here, I respectfully dissent from the majority. *Page 11