concurring specially. I concur in the judgment of affirmance, but do not concur in the proposition that the writ of certiorari does not lie to review an award of the industrial commission. The workmen’s compensation act in section 59 provides that an award of the commission “may” be reviewed by the superior court by a method prescribed in the act as an “appeal.” The act contains nothing which expressly denies a review of the judgments of the commission by certiorari. Upon the authority of the principle announced in Young v. Broyles, 16 Ga. App. 356 (85 S. E. 366), the right to review any award or judgment of the industrial commission by certiorari is a remedy cumulative to that of review by appeal as prescribed in the compensation act. In Young v. Broyles it was held, that, although the act creating the municipal *778court' of Atlanta provided for motions for new trial therein and a review of judgments in that court by bill of exceptions in the Court of Appeals, and contained nothing abolishing a review of judgments of that court on certiorari in the superior court, the writ of certiorari would lie to review judgments rendered in the municipal court of Atlanta. Since there is no statutory enactment abolishing the right to review rulings of inferior judicatories by writ of certiorari as respects the judgments and awards of the industrial commission, no question as to the unconstitutionality of any act abolishing a review of the judgments and awards of the industrial commission by writ of certiorari is presented. The ruling in Hutchings v. Roquemore, 164 Ga. 637 (139 S. E. 216), is not applicable here. In that case it was held by the Supreme Court of this State that since the act creating the municipal court of Macon as amended (Ga. L. 1925, p. 463) expressly provided that review of judgments in that court should not be had by certiorari, the judge of the superior court of Bibb County did not err in refusing to sanction a petition for a writ of certiorari to review a judgment in the municipal court of Macon, where the constitutionality of that provision abolishing certiorari as being applicable to that court was not drawn in question.
Whatever restrictions, as was held in Maryland Casualty Co. v. England, 160 Ga. 810 (supra), may have been placed by the workmen’s compensation act upon the power of the judge of the superior court to exercise a discretion in passing upon the facts found by the industrial commission on conflicting evidence, and whether this restriction could be construed as limiting the power of the judge of the'superior court, not only in passing upon an appeal from the industrial commission, but in passing upon a certiorari to review a judgment of the commission, the provision of the act imposing this restriction would not, in my opinion, even if it be constitutional, or if its constitutionality be not attacked in the petition for certiorari, operate to deprive the superior court of the right to review a judgment of the industrial commission on certiorari, but would operate only to render ineffective an assignment of error in the petition for certiorari excepting to the judgment of the industrial commission upon the discretionary grounds that the judgment was contrary to the weight of the evidence and the principles of eqixity and justice, See Johnston v. Brenau *779College, 146 Ga. 182 (91 S. E. 85), which recognized the right to a review by certiorari of the judgments of the municipal court of Atlanta, and held that the provisions of the act respecting the finality as to certain matters determined in that court operated to restrict the right to assign error thereon on certiorari which legally lay to review judgments in that court.
I am of the opinion that the court did not err in refusing to sanction the petition for certiorari wherein the claimant for compensation before the industrial commission sought a review of a judgment of the commission denying compensation. In so far as the petition for certiorari discloses, there was no evidence adduced before the industrial commission which would authorize an inference that the claimant’s husband, for' whose death compensation was claimed, received a compensable injury arising out of and in the course of his employment. The only evidence appearing in the petition for certiorari as to how the claimant’s husband met his death is the claimant’s testimony that her husband was killed on Sunday morning, and that on that morning, “in order to get back to the camp [which is presumably the place where he was employed] in time to get breakfast, that he was using the truck of Mr. Chandler [the employer] at this time;” and that “on the Saturday afternoon before he was killed on Sunday morning Mr. Chandler furnished him with a truck to get home in.” It does not appear from this evidence how the husband was killed, whether while using the truck, or, if while using the truck, whether his death grew out of an accidental injury or was caused under such circumstances that compensation therefor could not be legally awarded.