B.W. Brady was employed as a barber by William Place, in Coeur d'Alene, for approximately two years immediately preceding March 1, 1922, During the last week in February of that year, sometime between the morning of Thursday, the 23d, and the evening of Sunday, the 26th, a sliver of wood pierced the thumb of Brady's right hand. Infection of a serious nature ensued, necessitating hospital care and medical treatment. As a result of the injury, Brady's right hand and forearm became permanently disabled.
Brady instituted this proceeding before the industrial accident board against William Place, the employer, and the state insurance fund, as surety, to recover compensation under the workmen's compensation law. A hearing was held before a member of the industrial accident board. The claimant introduced evidence tending to prove that the sliver pierced his thumb while he was building a fire in a stove in the barber-shop in which he was employed, either on Thursday or Friday morning. The defendants introduced evidence tending to show that the claimant told Place, his employer, and W.B. Camblin, a coemployee, on Monday morning, February 27, 1922, that the sliver pierced his thumb while he was putting wood in a stove in his own home on Sunday evening, February 26th. The commissioner made findings of fact and rulings of law adverse to the claimant, denied an award, and dismissed the proceeding. *Page 750
On petition for review before the industrial accident board, additional evidence by depositions was submitted and considered by the board in conjunction with a review of the whole case. The board rendered its decision, including findings of fact, rulings of law, and an order that no award be made to the claimant and that the proceeding be dismissed. The claimant appealed to the district court, filing therein, besides the notice of appeal, a "formal demand for a trial de novo in the district court, and for a trial by jury." The district court denied this demand, and, after reviewing the decision of the board, entered judgment affirming the decision, from which judgment claimant appeals.
Appellant's specification of errors will be treated in order. He first contends that the provision of C. S., sec. 6270, that "on such appeal (from the industrial accident board to the district court) the jurisdiction of said court shall be limited to a review of questions of law," is repealed by C. S., sec. 6270A (Sess. Laws 1921, p. 479), which provides that "the case thereafter shall be tried by the court," and that the latter provision means a trial de novo on questions of both law and fact. A subsequent statute does not repeal an earlier one by implication, unless the two are irreconcilable and inconsistent. They should be harmonized if possible by reasonable construction. The language of the act of 1921, creating C. S., sec. 6270A, recites that C. S., c. 236, is amended by inserting therein, immediately following C. S., sec. 6270, a new section, designated sec. 6270A. The provision of C. S., sec. 6270A, that "the case thereafter shall be tried by the court," is not irreconcilable or inconsistent with the provision of C. S., sec. 6270, that "the jurisdiction of said court shall be limited to a review of questions of law," and the word "tried" must be held to refer to issues of law alone, which, of course, precludes a jury trial.
To hold that a trial de novo should be had would be to overlook and render meaningless the further provision of the same sec. 6270A, that "a transcript of the evidence" before *Page 751 the board shall be filed in the district court, and "upon the trial of such action the court shall disregard any irregularity or error of the board, unless it be made to affirmatively appear that the party was damaged thereby," purely an inquiry as to matters of law.
Appellant's next contention is that if C. S., sees. 6270 and 6270A, be construed as denying his right to a trial de novo by a jury, and as restricting the district court on appeal to a review of questions of law alone, such provision and the provisions of C. S., sec. 6214, which purports to abolish the jurisdiction of the courts over causes arising from injuries covered by the workmen's compensation law, are unconstitutional as in contravention of Idaho Const., art. 1, sec. 7, art. 2, sec. 1, art. 5, secs. 1, 2, 13, 20. The right to a trial by jury was a common-law right, and has been repeatedly held to be strictly enforceable only as to rights, remedies and actions triable by jury under the common law, and not necessarily as to new or different rights or remedies not in existence or in contemplation of the constitution when adopted. (Shields v.Johnson, 10 Idaho 476, 3 Ann. Cas. 245, 79 P. 391; Christensenv. Hollingsworth, 6 Idaho 87, 96 Am. St. 256, 53 P. 211;Cunningham v. Northwestern Improvement Co., 44 Mont. 180,119 P. 554.) Appellant has not sought to bring, nor on the facts did he have, a common-law action for recovery of damages. His claim and the facts disclose nothing in the nature of a common-law action for tort, but in fact a purely accidental injury, which would have given him no cause of action, right or remedy under the common law, or under statute prior to the enactment of the workmen's compensation act.
Appellant has sought to avail himself of the provisions of the law, and he has asserted rights under, and has endeavored to enforce it. When he instituted this proceeding before the industrial accident board, he complied with the provisions of the law relative to such proceedings, and made no complaint or protest that the law was unconstitutional. He pursued the statutory remedy in the hope of gaining the relief he sought, and after being denied *Page 752 such relief, he now says that the remedy provided by the law is contrary to the constitution. It is true that appellant has received no benefits under the law, but he has availed himself of its provisions and attempted to procure relief thereby. A party cannot avail himself of the provisions of a law and take his chances on recovering under it, and, when he fails to recover, reverse his position, and contend that the law was not valid in the first place.
A party may waive constitutional rights. (People v. Scott,52 Colo. 59, 120 P. 126.) It has also been held that a question of the constitutionality of a statute must be raised at the earliest possible moment consistent with good pleading and orderly procedure; otherwise it will be deemed to have been waived. (Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685,113 S.W. 1108.) The weight of authority holds that a party seeking to enforce a statute, or to avail himself of its provisions, may not question its constitutionality. (Lewis v. Chamberlain,69 Or. 476, 139 P. 571; Home Sav. Bank v. Morris,141 Iowa, 560, 120 N.W. 100; State v. Currens, 111 Wis. 431, 87 N.W. 561, 56 L.R.A. 252; People v. Rodgers Co., 277 Ill. 151,115 N.E. 146; Galveston, H. S. A. Ry. Co. v. Pennington (Tex.Civ.App.), 166 S.W. 464; People v. Murray, 5 Hill (N.Y.), 468; 12 C. J., 773, sec. 199.)
Appellant's further specification of error that "The facts found by the Board are not supported by the evidence, and the evidence is wholly insufficient to support the 'decision on review' of the Board," may be treated as a specification that the evidence was insufficient to support the findings of fact, or that the findings of fact were insufficient to support the rulings of law and the decision.
It is the opinion of a majority of the court, from which I most heartily dissent, that the evidence is wholly insufficient to sustain the findings of the board adverse to appellant, particularly that the injury of appellant was not suffered in the due course of his employment, but is full, ample and sufficient to sustain findings and a decision in favor of appellant, and to entitle him to recover, and, therefore, that such findings adverse to appellant are contrary to *Page 753 the law. The findings are ample as to the elements to be considered in rendering a judgment in favor of appellant.
The judgment of the district court is therefore reversed, and the cause remanded with instructions to direct the industrial accident board to make and enter an award in favor of appellant. Costs to appellant.
Wm. E. Lee, Budge and Givens, JJ., concur.