The decision in the foregoing opinion is based on the theory that there is a conflict in the evidence and on I. C. A., sec. 43-1408, therein quoted. The portion of that section which attempts to limit courts to a *Page 752 review of questions of law violates Idaho Constitution, art. 1, sec. 18, art. 2, and art. 5, sec. 13, and, if the legislature in enacting the Workmen's Compensation Law attempted to create a court, it also violates art. 5, sec. 2. These sections are as follows:
Art. 1, sec. 18: "Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice."
Art. 2. "The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted."
Art. 5, sec. 13: "The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a co-ordinate department of the government; but the legislature shall provide a proper system of appeals, and regulate by law, when necessary, the methods of proceeding in the exercise of their powers of all the courts below the Supreme Court, so far as the same may be done without conflict with this constitution."
Art. 5, sec. 2: "The judicial power of the state shall be vested in a court for the trial of impeachments, a Supreme Court, district courts, probate courts, courts of justices of the peace, and such other courts inferior to the Supreme Court as may be established by law for any incorporated city or town."
It is true, as pointed out in the foregoing opinion, this court has repeatedly held that "in cases where the evidence is conflicting, the findings of the board are binding upon the court and cannot be disturbed by it, provided there is substantial evidence to support them." It is also true that the courts of some other states, having constitutions apparently intended to prohibit the confusion of powers among the departments of government, have decided this question *Page 753 the same way. However, an error oft repeated is none the less erroneous. The language of our constitution is incapable of any interpretation which will justify depriving the courts of power to glean ultimate facts from disputed testimony, or which will invest that power in an administrative board and make its findings conclusive upon the courts.
The plain provision of art. 5, sec. 2, vests the judicial power of the state in the courts created by the constitution, and prohibits making a court of the industrial accident board. Section 13 of that article expressly prohibits the legislature from depriving the judicial department of any power or jurisdiction which rightly pertains to it as a co-ordinate department of the government. Article 2 fixes the status of the judiciary as a co-ordinate department of government, and to put any other construction upon these provisions than their plain language implies, so as to hold that the legislature, by investing an administrative board with judicial power to determine finally, and to the exclusion of the courts, the facts of a case, is to close the courts of justice to the litigant and to deny him the benefits sought to be guaranteed by art. 1, sec. 18.
In The Natatorium Co. v. Erb, 34 Idaho 209, 200 P. 348, this court had under consideration the powers of an administrative board and its holding, on this point, is clearly reflected in sec. 6 of the syllabus, as follows:
"The Public Utilities Commission is an arm of the legislative authority and not a court of justice within the meaning of Const., art. 1, sec. 18."
If it is true, and it is, that an administrative board, such as is the industrial accident commission board, is "not a court of justice within the meaning of Const., art. 1, sec. 18," it cannot be said that the legislature, in granting exclusive jurisdiction to it to hear and determine the facts of a case, has not closed the doors of the courts to the persons whose rights are involved, in violation of that section.
In Stein v. Morrison, 9 Idaho 426, 75 P. 246, it is said: *Page 754
"It is not out of place here to observe that the courts cannot disregard the provisions of the constitution and statutes, matter not what the character of the defense may be."
Also: "It seems to us that to keep within the spirit of our constitution (section 1, article 2) and form of government which recognizes the independence and specific character of the 'three distinct departments' of government, that the judicial department could not attempt to prohibit either of the other departments from acting within the recognized scope of their respective branches of the government, but that on the other hand the legal effect of such action after it has been taken may be inquired into by the court."
Toncray v. Budge, 14 Idaho 621, 95 P. 26, was a case wherein the eligibility of a citizen to hold office was called in question. The court said:
"Counsel for appellant argues with great earnestness and much force that it is without and beyond the power of the legislature to take from the duly organized, constitutional, judicial tribunal, the power and jurisdiction of determining a constitutional question; in other words, of determining a constitutional eligibility or ineligibility to hold an office. We would hesitate very much before disagreeing with counsel as to that proposition."
In that opinion the court quoted from Commonwealth v. Jones, 10 Bush (Ky.), 725, as follows:
"To admit that a contesting board may determine finally as to what constitutes a legal disqualification for office would be to decide that the legislature, instead of confining these tribunals to the discharge of executive duties, and to the determination primarily of mere questions of fact, had, in disregard of the distribution of the powers of government, existing by virtue of the first article of the constitution, created a high judicial tribunal — a court with power and authority to determine finally and conclusively questions of individual rights arising under the constitution — and provided that it should be composed exclusively of high executive officers. *Page 755
"It is a matter of great difficulty to draw the exact line of demarcation between executive and judicial powers, and of still more difficulty to define with accuracy how far executive officers in the discharge of executive or ministerial duties, may bind the other departments of government by the exercise ofquasi-judicial functions. But we regard it as an indisputable proposition that where the inquiry to be made involves questions of law as well as fact, where it affects a legal right, and where the decision may result in terminating or destroying that right, the powers to be exercised and the duties to be discharged are essentially judicial, and are such as cannot constitutionally be delegated to or imposed upon executive officers."
Our court further said:
"That court concluded by holding that an ascertainment and determination of the legal disqualification of a person to hold office 'is essentially judicial,' and that while the board might, in the first instance, pass upon it, that it would still be open to the courts for final consideration in case it became necessary to resort to the courts in order to carry out the order, determination or decision of the election board. (Dillon's Munic. Corp., 4th ed., sec. 201.) As touching the principle involved, see, also, Cummings v. State of Missouri, 4 Wall. 277, 18 L. ed. 356; In re Garland, 4 Wall, 333,18 L. ed. 366."
In Speer v. Stephenson, 16 Idaho 707, 102 P. 365, the court, quoting from Boise, Irr. etc. Co. v. Stewart, 10 Idaho 38,77 P. 25, said:
"While the provisions of those sections authorize the state engineer to pass upon and decide certain questions and matters, in the first instance, they in no way conflict with the provisions of the said section of the constitution. If anyone is aggrieved by the decision of the state engineer, he has the right to appeal to the district court.
"So in hearing a contest, while the state engineer is authorized to pass upon and decide in the first instance whether the permit holder has complied with the law and the terms of the permit, such decision does not deprive any *Page 756 party aggrieved of his right of action in a proper court. The statute does not attempt to make the action of the state engineer in any way bind or control the courts in determining the same matters."
After reviewing a number of decisions the court said:
"Many other authorities might be cited which deal with the power exercised by an officer in the administration of his office, but we believe the true rule to be, that when a ministerial officer is called upon to decide and determine matters arising in the administration of his office, when such acts are not made final or binding upon the courts of the state, and full opportunity is given to any person aggrieved to have such matters adjudicated in the proper tribunals of the state, the acts of such officer are ministerial and not judicial."
Applying this rule conversely, it follows that the legislature, by enacting in sec. 43-1408 that: "on such appeal the jurisdiction of said court shall be limited to a review of questions of law," has sought to make findings of fact by the industrial accident board final and binding on the courts, allowing no opportunity to any person aggrieved to have the facts of the case adjudicated in the proper tribunals of the state, thereby seeking to make the acts of that ministerial board judicial, not ministerial, and that the above-quoted portion of that section is unconstitutional.
Talbot v. Collins, 33 Idaho 169, 191 P. 354, was a case wherein the court had under consideration an act of the legislature which attempted to fix the places where appeals to it would be heard. It was held that the act was an invasion of the constitutional powers of the court and void. Section 1 of the syllabus is as follows:
"Under the constitution of this state, the legislature may not prescribe the time or place of hearing and determining any cause pending on appeal in the supreme court."
In that case the court overruled Mahoney v. Elliott, 8 Idaho 190,67 P. 317, which held to the contrary.
In Lyon v. City of Payette, 38 Idaho 705. 224 P. 793, the court said: *Page 757
"It is a judicial function to hear a cause pending between adverse parties, to apply the law to the facts, and to make and render a judgment determining the rights of the parties."
In Re Edwards, 45 Idaho 676, 266 P. 665, the court had under consideration an act of the legislature creating and granting powers to the board of commissioners of the Idaho State Bar. It said:
"That portion of sec. 8 which provides that 'The board of commissioners shall also have power to provide for the discipline of its officers and the members of its committee in the event of refusal, neglect, failure or corrupt or wrongful performance of their respective duties,' must be stricken from the act, as void, for the reason that it confers upon the board judicial powers."
In re Speer, ante, p. 293, 23 P.2d 239, the court said:
"Art. 2 of Idaho Constitution contains but one section. It divides the government of this state into three departments and undertakes to prohibit those belonging to one department from exercising powers belonging to either of the others."
In this case the findings and award by the industrial accident board are against the preponderance of the evidence. There is a conflict in the evidence only because of the testimony of Dr. D.H. Lewis, an expert witness, who, in the employ of respondents and for the purpose of preparing himself to testify in their behalf, examined Lizzie Hagen shortly before the hearing, and whose testimony is based on that examination and the history of the case, consisting of statements made by her in response to his questions. Dr. Lewis testified that, from his examination and from the history of the case, he came to the conclusion that Mrs. Hagen "hadparalysis agitans, atypical in nature, which was not due to or had no connection with her accident."
While he agreed with the four physicians who testified on behalf of claimant as to the causes of paralysis agitans, as set forth in the foregoing opinion, Dr. Lewis testified that *Page 758 encephalitis is the principal cause given by the authorities, and said: "I believe in practically every case of paralysisagitans I have seen, especially in the later years, there has been a history of, a definite history of encephalitis, and, furthermore, because we don't know much about encephalitis or sleeping sickness we have connected them up when we get that history." He further testified that he included encephalitis in the conclusion that it was not an injury which caused the disease in this case. Asked what symptoms of that disease Mrs. Hagen had, he said:
"A. She complained of weakness about two years after the accident and she also complained of her failing vision. Now, inencephalitis we do have failing vision. We have what they call double vision. They see two objects. I asked that question definitely and she didn't remember. Then the symptoms and the tremor came on afterwards.
"Q. Is tremor a symptom of encephalitis?
"A. Oh, no, I am talking about paralysis agitans now. The question was the symptoms of encephalitis.
"Q. Yes.
"A. Failing vision, diplopia, double vision.
"Q. Were those symptoms present?
"A. She gave that definite history of weakness and failing vision.
"Q. Would that be a sign of a probable approach ofparalysis agitans in any case where a person has to wear glasses?
"A. Oh, no. I will admit to you at the age of 40 the vision generally begins to fade. It could be the natural cause. I am trying to find simply the cause for these symptoms and thisparalysis agitans, and knowing that encephalitis is the probable cause of a large majority of cases, these symptoms were present and made me think of a probability that she may have had encephalitis."
In his testimony as to the history of the case, Dr. Lewis gave the age of Lizzie Hagen as forty-eight years, and that her health was good prior to the accident. The testimony of other witnesses shows that before the accident she was a *Page 759 strong, able-bodied woman, and that very shortly thereafter her health and strength began to fail, and continued to do so steadily and consistently until the examination made by him, yet, in his anxiety to account for her physical condition upon the theory that it was not brought about by accident, but byencephalitis, although there was no history of double vision, he found evidence of what he was searching for in her failing eyesight and failing strength.
The testimony of an expert witness is as weak and inefficient as is the foundation of fact on which it is based. InPetajaniemi v. Washington Water Power Co., 22 Idaho 20,124 P. 783, this court said:
"Now, it is true that a court is not expected to believe the testimony of a witness when it is in direct conflict with a well-recognized law of nature. The statute of this state (sec. 5950) (now I. C. A. 16-101) provides that 'courts take judicial notice of the following facts: . . . . No. 8. The laws of nature. . . . In all these cases the court may resort for its aid to appropriate books or documents of reference.' The courts will take judicial notice of the fact that water seeks its level, and if a witness should testify that it stood up in hillocks or piles like stone or earth, a court would not be expected to believe it. Or, if a witness should testify that a body when turned loose did not fall to the ground, but that it rather fell out into space, a court would not be expected to believe it, and such evidence would not be entitled to any weight or create a conflict of evidence. (Hunter v. New York,O. W. R. Co., 116 N.Y. 615, 23 N.E. 9, 6 L.R.A. 246; Elliott on Evidence, sec. 39; Zimmerman v. Bannon,101 Wis. 407, 77 N.W. 735; Peterson v. Standard Oil Co., 55 Or. 511, Ann. Cas. 1912A, 625, 106 P. 337; Groth v. Thomann,110 Wis. 488, 86 N.W. 178; In re Harriott's Estate, 145 N.Y. 540,40 N.E. 246.)"
All expert witnesses in this case testified thatparalysis agitans may be caused by shock or fright as well as by physical injury. The undisputed evidence shows that, upon Mrs. Hagen's return to her place of employment after the accident, she wept when she came in sight of the cannery *Page 760 and was so nervous she was unable to work in the room where she formerly was employed, and was given employment elsewhere; that after the few days she continued in the employ of the canning company she was never again able to perform gainful labor; that her hair turned white, and her strength steadily failed until the hearing, which occurred shortly before her death.
The statement in the foregoing opinion to the effect that Mrs. Hagen performed her housework "for a period of approximately two years from the date of the injury" has nothing more substantial for a basis than the testimony of Dr. Lewis as to the history of the case given him by her. He said:
"Patient was then taken to Dr. Dwyer's office, was given an opiate, some dressings. As far as she remembers, probably three dressings in all. Returned home after the first dressing and stayed in bed about one week and then returned to work. Worked a few days and stopped due to nervousness around the rolls. Was not unconscious very long, if at all. Remembers going to the doctor's office. Stated she has not worked since then. Movement of right arm and numbness of leg started about one year ago. Been bedridden the past year. Prior to that time was doing some house work."
Assuming, but not deciding, that a statement made to a physician and used by him as the basis for expert testimony is competent proof for all purposes, this statement does not sustain the assertion in the foregoing opinion that Mrs. Hagen performed her housework for approximately two years from the date of the injury. The testimony of her son and daughter, who resided with her, is to the effect that the mother was unable to do housework after the accident and that it was done by the daughter.
The evidence justifies the conclusion that paralysis agitans in this case was caused by shock and fright produced by the accident, and makes appropriate the following quotation from ReLarson, 48 Idaho 136, 279 P. 1087: *Page 761
"We have reached the conclusion that there is no such conflict in the evidence as to warrant a holding that the findings of the board and the court must be upheld, and we are clearly satisfied that the great weight or preponderance of the evidence is against the findings and the decision, and that there is no substantial evidence to support them."