Upon an appeal to the district court of Cass County from action of the board of compensation commissioners, the claimant Hanson obtained an award. From the judgment in his favor, an appeal was taken to this court. Hanson v. North Dakota Workmen's Comp. Bureau, 60 N.D. 220, 233 N.W. 900. Upon that appeal the judgment was attacked upon the ground that no order had been made *Page 483 by the commissioners from which an appeal to the district court was authorized. No other question concerning the judgment or award of the district court was raised. This court affirmed the judgment. The judgment provided as follows:
"That the plaintiff have and does hereby have and recover from the defendant compensation at the rate of $20.00 per week from September 28, 1920, together with interest thereon at the rate of 6% per annum and which compensation amounts to the sum of $12,281.10; further that he recover of the defendant his costs and disbursements as have been taxed and allowed by the Clerk of the above named Court in the sum of $332.50; further that the plaintiff recover from the defendant the sum of $500.00 as and for attorneys fees for his attorneys Lemke Weaver, making a total judgment in the sum of $13,113.60 that the plaintiff does hereby have and recover of the defendant."
A new judgment was entered on the remittitur on January 5, 1931, for $13,113.60, plus $37 costs, together with interest at the rate of six per cent per annum on the prior judgment from December 26, 1929, until paid. Thereafter in January, 1931, the defendant paid a very substantial amount, apparently as compensation (the record before us is not clear as to the amount), and placed the plaintiff upon the "pension roll" for the payment of $20 per week for life but subject to the limitation in the Workmen's Compensation Act, which fixes $15,000 as the maximum amount payable from the fund under any award. The plaintiff brought the instant mandamus proceeding to compel the payment of the balance of the judgment and obtained a peremptory writ. The defendant appeals.
The basic contention of the appellant here is that the award made by the judgment of the district court, which was affirmed in this court, is subject to modification by the workmen's compensation commissioners to the end that it may be made to conform to the law in respect to matters embraced within it which were not questioned on the former appeal. More specifically, the appellant questions so much of the judgment as is represented by interest on unpaid compensation prior to the making of the award.
The appellant concedes that, if the action of the court in awarding interest was erroneous merely and did not transcend the jurisdiction of the court, the judgment became final; but it is argued that the court *Page 484 had no jurisdiction to impose interest and that, consequently, the judgment including it was to that extent void and is, hence, subject to collateral attack, though subsequently affirmed by this court. Upon the hypothesis that the foregoing contentions be not sustainable, the further contention is advanced that under the continuing jurisdiction, provided for in § 18 of the Compensation Act, the commissioners "have the right to review and disregard said judgment upon the matter of interest, or upon any other matter going to the administration of the act, except Hanson's right to participate in the fund."
Section 396a17, 1925 Supplement to the Compiled Laws of 1913, in providing for judicial review in cases where a claim is denied upon any ground going to the basis of the claimant's right, makes it the duty of the court to "determine the right of the claimant; and if it determines the right in his favor, (it) shall fix his compensation within the limits prescribed in this act;" and then it is provided that any final judgment so obtained shall be paid by the Workmen's Compensation Bureau out of the workmen's compensation fund in the same manner as awards are paid by such bureau. This language is so plain that argument is not needed to demonstrate that the jurisdiction of the court to fix compensation in any case properly before it is as extensive as the jurisdiction of the bureau. It does not contemplate additional proceedings before the bureau affecting matters determined in a final judgment. The duty of the bureau is to pay such judgment as it pays its own awards. We shall hereinafter consider the scope of the continuing jurisdiction of the bureau in such cases. The first question is the extent to which the judgment of the court is binding.
It is said that the act nowhere provides for the allowance of interest as part of the compensation to be awarded, and that hence the court, in awarding it, acted beyond its jurisdiction in that it did not fix the compensation "within the limits prescribed" by the act. The duty of the court to fix compensation necessarily involves a judicial determination of the limit prescribed for the case in hand and, inasmuch as the act defines the measure of the compensation, the court, in applying such measure, under the appellant's argument, determines a question of jurisdiction. If it be assumed, then, that the court exceeds the jurisdiction conferred when fixing a measure of compensation in excess of that provided in the law, it errs in the decision of a jurisdictional *Page 485 question. In entering up its judgment, the court could not avoid defining the limit of the claimant's compensation. If it thought that a prescribed measure of compensation had been unduly withheld and that therefore the general statute (Comp. Laws 1913, § 7142), under which interest is recoverable as compensatory relief, was applicable, it would at most have made an erroneous decision as to the measure of the recovery, or it would have misconstrued the power intended to be conferred — but not the power to decide the question as to the measure of compensation.
Jurisdiction is the power to decide and it does not depend upon whether the decision be right or wrong. 15 C.J. 729; Christenson v. Grandy, 46 N.D. 418, 426, 180 N.W. 18; Calhoun v. Bryant,28 S.D. 266, 133 N.W. 266. The following expression from the opinion of the court in Calhoun v. Bryant, supra (page 271 of the state report and page 269 of the Northwestern Reporter) aptly expresses the doctrine applicable to the case in hand: "When parties are before the court and present to it a controversy which the court has authority to decide, a decision not necessarily correct, but appropriate to that question, is a proper exercise of judicial power or jurisdiction. So far as the jurisdiction itself is concerned, it is wholly immaterial whether the decision upon the particular question be correct or incorrect. Were it held that a court had `jurisdiction' to render only correct decisions, then, each time it made an erroneous ruling or decision, the court would be without jurisdiction, and the ruling itself void. Such is not the law, and it matters not what may be the particular question presented for adjudication, whether it relate to the jurisdiction of the court itself, or affects substantive rights of the parties litigating; it cannot be held that the ruling or decision itself is without jurisdiction, or is beyond the jurisdiction of the court. The decision may be erroneous, but it cannot be held to be void for want of jurisdiction."
In Christenson v. Grandy, supra, this court said (page 427 of the state report): "The United States Supreme Court has said that the jurisdiction of the court can never depend upon its decision of the merits of the case brought before it, but upon its right to hear and decide it at all (Ex parte Watkins, 7 Pet. 568, 572, 8 L. ed. 786, 788); that `jurisdiction is authority to decide the case either way.' . . . `Jurisdiction is the power to hear and determine a cause, and carries *Page 486 with it the power to decide a cause within the jurisdiction of the court incorrectly as well as correctly, and it does not relate to the rights of the parties, but to the power of the court.' Dahlgren v. Superior Ct. 8 Cal.App. 622, 97 P. 681. `The test of the jurisdiction of a court is whether or not it had power to enter upon the inquiry; not whether its conclusion in the course of it was right or wrong.'"
We are of the opinion that the case now before us is controlled by these principles. The court had jurisdiction to determine the measure of compensation to be embraced in the judgment and its decision thereon is not void by reason of employing a wrong measure and is not subject to collateral attack.
It appears affirmatively here, as previously stated, that upon the former appeal from the judgment no question was raised concerning the allowance of interest. In the tenth conclusion of law the court had expressly declared that interest should be allowed at the rate of 6 per cent per annum. The making of this conclusion was specified as error, but, inasmuch as the specification was not argued, it must be regarded as having been waived. This item then became a part of the final judgment, and, whether rightly or wrongly included, it is now res judicata.
Is this judgment subject to modification by the bureau in the exercise of its continuing jurisdiction? We are of the opinion that this question must be answered in the negative.
As above stated, § 17 of the Act clearly contemplates that the court shall make an award in the form of a final judgment, and it expressly declares the duty of the bureau to pay such judgment. It will be noted that § 18, in conferring a continuing jurisdiction on the bureau, does not purport to give authority to undo that which has been finally determined. It merely authorizes a review of the award, and, in accordance with the facts found on such review, the bureau "may end, diminish, or increase the compensation previously awarded, . . ." That is to say that, in accordance with facts later found to exist, it may cease to make payments falling due in the future under awards previously made, or it may diminish or increase such compensation. This does not qualify the obligation of the bureau expressed in the preceding section to pay a final judgment in the same manner as awards are paid by the bureau. *Page 487
In the case of Gotchy v. North Dakota Workmen's Comp. Bureau,49 N.D. 915, 194 N.W. 663, this court considered the section authorizing a final judgment in relation to the section authorizing a continuing jurisdiction, and it said (page 932 of the state report): ". . . after the determination of such right and of the compensation, the continuing obligations and duties of the bureau remain applicable in administering the right and in disbursing the compensation, pursuant to the act and pursuant to the powers and authority conferred upon the bureau. . . . This does not mean that the bureau would possess, after such judgment, the right to deny or reverse the right of the claimant thus established upon appeal, but it does mean that the bureau, after such judgment, may increase or diminish the award, or may award a lump sum, all pursuant to and consistent with the judgment rendered and the continuing obligations and duties imposed upon the bureau."
Where a judgment is entered for a lump sum as a compensation award to the date of the judgment, or where the judgment roll affirmatively shows that a sum is included in the award as interest, it could scarcely be contended that action subsequently taken by the bureau reducing or modifying the judgment in either respect would be consistent with the judgment rendered. This is not to say, of course, that the bureau does not have power and authority to exercise its continuing jurisdiction with respect to matters not covered by the judgment, such as a change in the physical condition of the claimant.
Section 17 of our law was taken from the Ohio statute. There it is held that the judgments of the courts entered under such section are not subject to collateral attack in the courts, nor to modification by the bureau under its continuing jurisdiction, though they be incorrect. In State ex rel. Gavalek v. Industrial Commission, 100 Ohio St. 399, 126 N.E. 317, it appeared that upon an appeal from action of the industrial commission the claimant recovered a lump sum judgment in court, which was allowed to become final. The respondent declined to pay the judgment, and mandamus proceedings were instituted. In its answer the respondent attributed its refusal to pay the judgment to the neglect and failure of the relator (the claimant) to furnish information necessary to enable the commission to determine the amount of payments to be made from time to time, as provided in the law. A *Page 488 demurrer was sustained to this answer, the court holding that, though a lump sum judgment was erroneous, where such judgment becomes final it is not subject to collateral attack. The following expresses the holding in this respect (page 402 of the state report):
"It is a collateral attack on such judgment, both as to form and substance. It is now too late to make any such attack. The award as made by the jury in the form that it was made must remain as a final determination of the rights of the parties, and the provisions of Section 1465-86 are not such as to authorize the commission to exercise its continuing jurisdiction to modify the judgment so rendered.
"The case presented is similar to one wherein the commission had rendered its own award to be paid periodically, and had thereafter commuted these payments into a lump sum and directed payment. Under such circumstances, the jurisdiction of the board having been finally and fully exercised, its power to modify has been terminated."
In State ex rel. Davidson v. Industrial Commission, 112 Ohio St. 553, 148 N.E. 100, the provision of the statute, declaring that any final judgment obtained in court upon an appeal from the industrial commission should be paid out of the fund in the same manner as awards are paid by the commission, was construed as conferring upon the commission only the power to carry such judgment into execution and that the commission could not sit in review upon the judgment. In our opinion these decisions represent a sound construction of §§ 17 and 18 of our Workmen's Compensation Law, which sections are in all substantial particulars identical with the provisions of the Ohio law relating to the questions considered in this case and the two cases referred to. The continuing jurisdiction of the bureau must be exercised in a manner consistent with the judgment. It is another and different question whether the judgment properly should not have excluded interest.
The answer to the petition in the instant case shows that the defendant relies upon the limitation contained in chapter 286 of the Session Laws of 1927 and chapter 260 of the Session Laws of 1929, in which it is provided that if the injury cause temporary or permanent disability the fund shall pay to the disabled employee a certain portion of his weekly wage, concluding with the proviso "that if the disability be permanent totaldisability, the total amount payable shall not exceed *Page 489 ($15,000) fifteen thousand dollars." The conclusions of law of the trial court are to the effect that the applicability of this amendment need not be decided and that so far as the question of interest which was embraced in the judgment is concerned, it could not be deducted from the maximum amount of $15,000. This cause has long been in controversy, as is evidenced by the former appeals and the fact that it is still pending. This is a mandamus proceeding. In view of the reliance upon the statute fixing the limitation and of the fact that the total amount paid and to be paid may now or will soon approximate the maximum limitation, if it is applicable, we deem it proper to decide this question. The limitation contained in the statute is stated in broad terms. It clearly means that not more than $15,000 is to be paid out of the fund on account of any permanent total disability. The judgment is payable out of the fund and is payable to the claimant on account of permanent total disability.
A claimant does not have a vested right in the fund to the extent of the full amount of compensation as it may be determined by the law existing at the time of his injury. See Wirtz v. Nestos, 51 N.D. 603, 200 N.W. 524. The amount that may be paid to him may well be affected by legislation designed to secure the rights of all the persons in whose interest the fund is created. In our opinion, it was competent for the legislature to impose a maximum applicable to claims which were pending, as well as to those subsequently arising. We think the language employed indicates that the legislature has done so in the statutes referred to. While the judgment in the instant case purports to award interest, it does so as a measure of the compensation to which the claimant is entitled on account of his permanent disability. For the reasons stated above, we are not concerned with the question as to whether or not the plaintiff (the claimant) was legally entitled to recover interest. The judgment is final and we do not decide the question. But, clearly, any amount embraced in the judgment as payable to the plaintiff on account of his permanent total disability is within the maximum limitation, though a portion of it be denominated interest. Therefore, the writ should not include interest on unpaid compensation so as to require the payment to the claimant of an amount in excess of $15,000 on account of his disability. *Page 490
The cause is remanded to the district court for further proceedings not inconsistent with this opinion.
BURR, J., concurs.