"Little difficulty" is found by the majority in arriving at a conclusion countenancing a substantial compliance with jurisdictional requirement of section 13363, O. S. 1931. I am less fortunate in being confronted with an insurmountable barrier formed by four well-considered decisions overruled by the majority.
In the inception, the very essence, meaning and derivation of the word "jurisdiction" connotes: (Jus-juris — right-law-dictio — saying or speaking) the power of a court to entertain and decide any cause of action.
Equity has no part to play in deciding upon a question of jurisdiction. It is a matter of law. Therefore substantial compliance is not sufficient but requirements of the law must be met.
The majority opinion finds a "twofold purpose" in the procedural statute, supra, and infers that one of them was heretofore discovered and stated in Tidal Oil Co. v. State Industrial Commission, 140 Okla. 5, 282 P. 359. It was "security," i.e., the appellant from an award of the Industrial Commission must secure the amount of the award before a review may be had. The majority opinion does not clearly state just what the other statutory purpose is, save by the general expression that for such an appellate review, "certain conditions are prescribed for the commencement of an action in *Page 653 this court, and are essential to invoke our jurisdiction." The fact is this other requirement of the statute is a proper petition, lawfully filed in this court.
Unless security is had for an award and unless a proper petition is lawfully filed, this court shall not, according to the law, "entertain" proceedings to reverse, vacate, or modify any award or decision of the commission.
As the majority view it, the word "entertain" when isolated bestows a modicum of power from which jurisdiction may be perfected or at least constructed. But there is twofold error in this, for while on the one hand the word "entertain" does not have the meaning attributed to it, on the other the solemn declaration of the Legislature is that the clerk of this court shall not accept the action for filing until documentary evidence is furnished from the agency below showing security of the award as aforesaid. The statute reads:
"Before the Clerk of the Supreme Court shall accept the action for filing, a certificate from the secretary of the commission shall be required, showing this provision had been complied with. . . ."
Many cases would be required to be overruled should the majority depart from the rule that he who deals with a governmental agency does so with knowledge of the governmental agent's authority. So that rule stands, at least in words, and under that rule a prohibited filing was no filing at all, and the action of the clerk in placing the cause for review on the docket was a nullity. But let us examine the security by which the award is guaranteed. It was an unapproved undertaking. It is said by the majority that "no contention is made that the bond is insufficient in form or amount." This statement amounts to a holding that the burden is upon the obligee to establish that an unapproved undertaking, required by law to be approved, is invalid as to form or amount. I cannot agree. It is stated by the majority that "in the final analysis, therefore, respondent would have us to hold that our jurisdiction is divested because a bond, sufficient and proper to secure the award, was filed with the clerk instead of a certificate that such bond was filed with the Industrial Commission." As I view it, this statement assumes a fact not in evidence, and contrary to the record.
No proper bond or undertaking has been filed. To this good day neither the bond nor the sureties thereon nor the terms thereof have been approved. Whereas, the law applicable clearly requires security of the award within 30 days "after a copy of such award . . . has been sent . . . to the parties affected, . . ." the award can only be secured by taking "a written undertaking to claimant" at the time and in the manner provided by law. "A written undertaking" contemplates a bond. A bond is a written acknowledgment of a debt or a contract to pay it, definite as to amount, specific as to terms, adequate as to sureties and under seal, denoting approval. Counsel for petitioner recognized this situation and sought to cure it by the nunc pro tunc order sought. We held in Union Indemnity Co. v. Saling, 166 Okla. 133, 26 P.2d 217:
". . . The bond required is a condition precedent to an original proceeding in this court to review an award of the Industrial Commission." Tidal Oil Co. v. State Industrial Commission, 140 Okla. 5, 282 P. 359; Blake v. Smock,158 Okla. 205, 13 P.2d 113.
In Goss v. Cauthers, 143 Okla. 144, 287 P. 1040, we held:
"Before the Clerk of the Supreme Court shall accept the action for filing, a certificate from the secretary of the commission shall be required showing this provision has been complied with. Held, this is jurisdictional, and, upon failure to comply with this statute, this court is without jurisdiction to review said award. Said cause should be, and is, dismissed."
It seems to me that in departing from the rule above stated, we depart from regularity of procedure, and in this I am impelled to protest.
In Blake v. Smock et al., supra, there was a pleading that a bond had been *Page 654 filed, but the decision dismissing the action turned upon failure to show that the bond "had been approved and filed as by law required." This has by the legislative act been required and by this court construed.
In Union Indemnity Co. v. Saling et al., supra, we held the statute requiring a proper bond an approved bond, "a condition precedent to obtaining a judicial review of an award of the Industrial Commission favorable to claimant, is constitutional and is not unjust or unreasonable restraint upon the right of a party adversely affected by such award."
In Tidal Oil Co. v. State Industrial Commission, supra, which is the original view of the law involved, written a decade ago, a petition for review was filed in this court contrary to mandate of law as in the instant action.
"Before the Clerk of the Supreme Court shall accept the action for filing, a certificate from the secretary of the commission shall be required showing this provision has been complied with."
And it was held:
". . . Bond should be given and approved by the secretary of the Industrial Commission within that time."
Therein a certificate was filed showing bond made and approved as to amount, terms and sureties, but it was held the requirement was jurisdictional and the time element was 30 days after notice of the award. It was said:
"Same must be filed within 30 days, and before the same can be legally filed the supersedeas bond must be given andapproved. . . . Application for review is dismissed."
Contrary to the majority view of the record, a contention is made that the bond is insufficient in form, and contention is made that the award is not, in fact, adequately secured. It is elementary that a bond is not a bond within contemplation of law until it is approved. Since the legislative act requires as a condition of appeal a written undertaking approved, it seems illogical to make use of these words: "If it was the intention of the Legislature that approval of the bond should be essential to the commencement of the action in this court, it seems reasonable that such a provision would have been included with other provisions relating to the commencement thereof."
In Village of Glencoe v. Industrial Commission et al.,354 Ill. 190, 188 N.E. 329, the village, like petitioners for review here, were aware that there had been no substantial compliance with the law for review. Therein, as herein, an order nunc pro tunc was sought seeking approval of a bond as here involved. Therein, contrary to the record herein, the clerk testified that he had in fact approved the bond, but omitted to endorse such approval. It was held, inter alia, that in "Workmen's Compensation cases," "courts can obtain jurisdiction only in the manner provided by . . . statute," and the positive provision of statute being such as to require appellant to file with the clerk a bond, that "A bond not approved at the time of its filing is not a bond as required by the act." Consequently, the contention that the clerk in fact approved the bond was unavailing, for "the record must showapproval of the bond."
Therein, as herein, the motion for order nunc pro tunc came subsequent to expiration of the time within which proceedings for review of the award must be commenced. Therein, as it appears to me herein, "during all that time the court had before it a record showing no jurisdiction of the subject matter, and, of course, could not by a nunc pro tunc order confer jurisdiction of the subject matter on itself." For jurisdiction, as the term denotes, is the ipsi dixit, not of men, but of the law.
For these reasons I respectfully dissent, expressing no opinion as to the merits of the special proceeding reviewed. *Page 655