Hearing v. Johnson

On Rehearing.

Per Curiam.

In its motion to rehear, the employer contends that the reversal of the judgment of the judge of the superior court has the effect of approving not only the award of compensation in favor of the claimant but a provision as follows: “The penalties as requested are not herein assessed based upon the fact that there be no further appeal. Should this case be appealed, a 10% penalty as provided for under Code Section 114-603 and the sum of $350 attorney’s fee for each additional hearing, will be assessed as a reasonable and just penalty for the failure of this employer to carry coverage and the further fact that he ignored this board completely and did not attend the hearing.” *410(Emphasis supplied.) We had no intention of approving this language which, relating as it does to some future action, we do not construe as assessing a penalty at the time of its rendition but merely of indicating an intention to do so in the future. That such action would be illegal is obvious. Under our Constitution, Art. I, Sec. I, Par. IV (Code Ann. § 2-104) no person may be deprived of the right to prosecute or defend his cause in any of the courts of the State. “Although the right of appeal is wholly statutory, it is available to any party who comes within the statute granting the right, and cannot be denied or abridged by the courts except as authorized by the statute.” 4 C.J.S. 539, Appeal and Error, § 167. A constitutional power can not be used to obtain an unconstitutional result (McIntyre v. Harrison, 172 Ga. 65 (4b), 175 SE 499), and the statutory power of the Board of Workmen’s Compensation to assess penalties can not be used as a sort of duress to prevent the losing party from prosecuting an appeal. Even though the assessment of penalties would be otherwise proper, it cannot be conditioned upon a failure to appeal. Since both sides conceded this fact in argument before this court, and the claimant as a matter of fact expressly prayed that the penalty provisions be stricken, it is only necessary to point out that any order assessing penalties and attorney fees as a punishment for the defendant’s exercise of its statutory right of appeal would be absolutely void.