I regret that I have to disagree with the finding of the majority for the reason that I do not believe it sufficiently draws the distinction between the effect of the Workmen's Compensation Act, which I believe, according to the clear weight of authority, creates a contract between the employer and the employee, and statutes of limitation which affect no right, but relate exclusively to the remedy. SeeGooding v. Ott, 77 W. Va. 487, (493), 87 S.E. 862, L.R.A. 1916D, 637, 3 A.L.R. 1353n, 1364n, 59 A.L.R. 741n.
In theory, under a compensation act, the workman agrees, as and for a consideration moving to the employer, in the event of injury in the course of and resulting from his employment, to relinquish his right of recovery at law for the master's fault and to accept in lieu thereof limited compensation regardless of negligence if his claim therefor is filed within six months of the date of his injury. Otherwise, his right to compensation does not exist. There is no statutory bar of the remedy alone.
The employer, as his part of the contract, agrees to contribute to the compensation fund from which awards to the employees are not to be restricted to those entitled by reason of the employer's common law liability, but are *Page 278 to be made to injured employees, or their dependents, unless resulting from willful misconduct or a violation of a properly promulgated rule. The employer further agrees that against an award for compensation, certain common law defenses shall not be available to him. The State of West Virginia agrees to administer the fund, and to my mind, the existing procedural requirements of the statute enter into and become an integral part of the contract itself, the rights under which vest at the time of injury.
This claimant had met all the statutory requirements existing at the time of his injury. His claim had been properly filed, properly presented, and the continuing jurisdiction of the commissioner over such a claim at that time was not limited. His claim, without being subject to such a limitation, became vested in him as a right of property.
As to the act of March 11, 1939, being retroactive, here, again, I do not think the required distinction is drawn. As a statute of limitations I have no difficulty in agreeing that it could not be a retroactive bar, being valid as to existing rights of action only, because of the reasonable time necessarily allowed a claimant from its effective date. But if that act is regarded as intended to affect a vested contractual right, as I believe it was, so far as it is applied to injuries inflicted before its date, the fact of its being retroactive is inescapable.
I agree with what is said in the majority opinion as to the practical effect and administration of the compensation act, and that stabilizing the compensation fund is an essential and laudatory purpose. These matters, however, are the primary concern of the legislature, and should not be permitted to affect the basic principle which underlies the constitutionality of compensation legislation, which is universally looked upon, now even where compulsory, as creating a contractual relationship under the existing terms of the compensation act. *Page 279