The sole question in this case was raised when the petitioner filed in the District Court of Archer County, Texas, its plea to the jurisdiction, which presented the question of whether the action of the Industrial Accident Board, in refusing to set for a hearing respondent's claim for a lump sum settlement, or in the alternative, for an acceleration of payment, as provided under Article 8306 of the Workmen's Compensation Act, was a final appealable order. I think the trial court and the Court of Civil Appeals correctly decided this question in favor of respondent.
The case of Southern Casualty Co. v. Todd, Tex.Com.App. 1930, 29 S.W.2d 973, 974, is decisive of the issue here, and was not, as petitioner contends, decided solely on the ground that the Board should hear a claim within a reasonable time, as called for in that portion of Article 8309a, which precedes the provision of the Article involved in this case. The Court, after citing the letter written by the Industrial Accident Board, similar in tenor as the one involved here, quoted the issue as had been stated by the Court of Civil Appeals, in part, as follows: "The Southern Casualty Company, defendant in the trial court and plaintiff in error here, pleaded by way of exceptions and special plea to the jurisdiction of said trial court, on the ground that the ruling and decision of the Industrial Accident Board, which was said letter above shown, was not a final ruling and decision of said Board, and was not such a ruling and decision as required by law and upon which an appeal to the court could be predicated." This precise question is involved in our case. The exact question, in my opinion, was also involved in the case of Jones v. Texas Indemnity Ins. Co., Tex.Civ.App., 15 S.W.2d 1077, 1078, writ refused. In that case, the Court of Civil Appeals held that the '* * * Courts have no jurisdiction of a claim arising under the Workmen's Compensation Law (Rev.St. 1925, Arts. 8306-8309) unless the Industrial Accident Board has made a final ruling and decision thereon.' The Board's letter, which the court held to be not an appealable order, contained the following statement: "Because of the fact that our records indicate that the Insurance Company is paying compensation, *Page 942 the Board does not consider that the time has yet arrived to set the case for hearing."
The court, in the Southern Casualty Company case, upheld the decision of the Court of Civil Appeals of the Fifth District, holding that the courts did have jurisdiction, and in doing so, stated that such decision was in direct conflict with the Jones case, supra, and further held, '* * * We have examined both opinions, and have reached the conclusion that the Court of Civil Appeals of the Eleventh district erred in holding as it did.' Now, after 26 years, and after the passage of Article 8309a, we have before us the same basic question as was involved in both the Southern Casualty Co. and Jones cases, supra. The majority is now upholding and reinstating the Jones case and overruling the Southern Casualty case.
The question is: Can the Board arbitrarily and without evidence deprive a claimant of his right to a hearing of his claim arising under either Section 15 or 15a, Article 8306, merely because weekly compensation is being paid, and medical and hospital expenses are being paid by the insurer? It is my contention that the Legislature, by enacting Article 8309a did not repeal either Sections 15 or 15a of Article 8306. The majority cites the emergency clause to the original act, Art. 8309a, in support of its holding. The Legislature does not repeal statutes through an emergency clause. Article 8309a, by its terms, did not expressly, or by implication, repeal the right given a claimant under Sections 15 and 15a of Article 8306. I venture the assertion that hundreds, perhaps thousands of claims, are filed each year with the Industrial Accident Board which do not involve the question of lump sum settlement or acceleration of payments. Prior to the enactment of Art. 8309a, the Board was compelled to set all such claims within a reasonable time even though the insurer was paying compensation. The effect of Article 8309a was to give the Board some discretion, but gave it no discretion as to claims arising under Sections 15 or 15a of Article 8306. I repeat statutes cannot be repealed by implication. Articles 8306 and 8309a cover the same subject matter-workmen's compensation. As was said by this court in the case of Southern Pac. Co. v. Sorey, 104 Tex. 476, 140 S.W. 334, 336, "where two statutes cover, in whole or in part, the same matter, and are not absolutely irreconcilable, the duty of the court (no purpose to repeal being clearly expressed or indicated) is, if possible, to give effect to both. In other words, it must not be supposed that the Legislature intended by a later statute to repeal a prior one on the same subject, unless the last statute is so broad in its terms and so clear and explicit in its words as to show that it was intended to cover the whole subject, and therefore to displace the prior statute."
I do not think the case of Hawthorne v. Anchor Casualty Co., D.C., 53 F. Supp. 475, 477, by Federal District Judge Kennerly of the Southern District of Texas, controls, in any respect, the case at bar. In that case it was the contention of the insurer that the claimant had suffered a specific injury and it was willing to pay compensation for a definite period of 125 weeks. The claimant contended that he was entitled to compensation for total and permanent disability. The Board ruled that '* * * In view of the nature of this claimant's injury, the Board will insist that the insurance company pay weekly compensation rather than set this case for hearing at this time.' In that case, apparently, the Board determined the nature of the claimant's injury, but in our case the Board has refused to grant the claimant a hearing, and the majority, by its decision, is upholding an action of the Board which, in effect, deprives respondent-claimant of due process as guaranteed him under the Constitution.
The case of Munmon v. Traders General Ins. Co., Tex.Civ.App., 170 S.W.2d 262, no writ history, decided after the enactment of Article 8309a, in my opinion, supports the contention of respondent on the principal point involved. On that point (the letter written by the Board refusing to set the claim for a hearing) the court held that the letter constituted an appealable order, and in support thereof, cited the case of Southern Casualty Co. v. Todd, *Page 943 supra. The case was reversed and remanded for a new trial. Article 8309a did not have the effect of overruling the holding in the Todd case.
I would affirm the judgment of the Court of Civil Appeals.