dissenting:
I am unable to concur in the decision of the majority in this proceeding, because I think the inescapable effect of the decision is to nullify the right of claimants to benefits under the Unemployment Compensation Act to have such benefits paid after obtaining a final decision in their favor before the Board of Review provided for in the Act. I regard that provision as an important one, calculated to meet emergencies arising from unemployment, which should not be stricken down in order to provide an excuse for- granting relief in the case now before us. I particularly dissent from Point 3 of the syllabus.
It is unnecessary to go into details as to the procedure leading up to a final decision by the Board of Review. When that point is reached, Section 11, Article 7, Chapter 1, Acts of the Legislature, Second Extraordinary Session, *761936, as last amended by Chapter 130, Acts of the Legislature, 1945, comes into the picture and provides:
“If an appeal is filed, benefits for the period prior to final determination of the board shall be paid only after such determination. If benefits are allowed by the decision of the board on appeal from the decision of the appeal tribunal the benefits shall be paid whether such decision reverses or affirms the decision of the appeal tribunal and regardless of any further appeal: Provided, That such decision does not relate to a disqualification under subsection (4) of section four of article six; but if the decision of the board is reversed on appeal an employer’s account shall not be charged with the benefits so paid.”
I assume it will not be denied that when the section quoted above speaks of the decision of the Board, it is meant thereby the final decision of the Board, or stated another way, when the decision of the Board becomes final under the provision of the Act.
We are not left in any doubt whatever as to when the decision of the Board of Review becomes final, because Section 17 of the same article is headed “Finality of Board’s Decision” and reads as follows:
“The decision of the board shall be final and benefits shall be paid or denied in accordance therewith, unless a claimant, last employer, or other interested party appeals to the court within thirty days after mailing of notification of the board’s decision.”
This is another way of stating that until the expiration of thirty days after mailing of notification, the board’s decision has not become final; and in the event that the claimant, last employer, or other interested party has appealed to a court during that period, the decision of the Board of Review never does become final until a decision by the court in any suit, action or proceeding instituted under Section 17. It is obvious, therefore, that if an appeal is allowed from the action of the Board under Section 17, there can be no payment of benefits until there *77has been a complete end to the litigation, which may be delayed for months, or even longer, and delayed long after the emergency intended to be- relieved has passed.
In the case at bar, the right of claimants to collect benefits, pending an appeal under Section 17, is not before us because benefits were denied. But, we are laying down a principle which we will be compelled to follow in a case where benefits are allowed, and where an appeal is permitted to be taken under the provisions of Section 17. We qannot now say that the claimants are entitled to an appeal under that section as a matter of right, and later say that an employer or other interested person is not entitled, as a matter of right, to the same character of appeal. The rights of parties are mutual. An appeal operates to suspend the order appealed from. There is, therefore, no power vested in the director to pay benefits until the order of the Board of Review granting benefits has become final.
This whole matter, was before us in the case of State ex rel. Aikens v. C. S. Davis, Director of Unemployment Compensation, 131 W. Va. 40, 45 S. E. 2d 486. Four Judges of this Court, as now constituted, participated in and concurred in that decision.. The syllabus point in the case covers Section 11, but in the body of the opinion, on questions raised by the record, the interpretation of Section 17 is discussed, in an effort to give some effect to Section. 17 without destroying the purpose of Section 11, and in commenting on Section 17, this Court, in the opinion written by Judge Kenna, said:
“It is quite clear that if Section 17 refers to more than one court, it does not deal with judicial review nor use the word ‘appeal’ in the sense of judicial review, because ‘appeal’ in that sense is completely provided by Section 22 and is expressly confined to one court. Both Section 11 and Section 22 clearly contemplate judicial review and, that being so, Section 17 must be construed, if possible, so that its terms do not conflict with those of the other two sections. It would seem that the only way in which the language of *78that section can be made to harmonize with that of Section 22 is to hold that the purpose of Section 17 is to suspend the payment of unemployment benefits when an ‘interested party appeals to a court’ against a void, because arbitrary, capricious, or fraudulent, finding of the board of review. A proceeding of that kind is not appellate, but is a direct attack upon a void finding of the board. We are not confronted with that situation here. We are therefore of the opinion that the pending application for an appeal from the decision of the board of review is not subject to the provisions of Code, 21A-7-17, but is controlled by Sections 22 and 11 of the same article.”
I realize the difficulty of -reconciling these statutes, but I think the purpose of Section 17 was to do nothing more than fix the time when the decision of the Board of Review should become final, and the time when benefits should be paid. That, in effect, was the holding in the Aikens case, and I see no reason to depart from that holding. The Legislature evidently had it in mind that it could not provide for the payment of benefits upon a finding by the Board of Review unless it permitted the employer or other interested party the right to his day in court, and for that reason the decision was suspended for thirty days in order to afford persons claiming to be prejudiced a right to contest in some form or manner, other than appeal as a matter of right provided by Section 22, the validity of the order of the Board of Review. Without that provision there would probably have been a lack of due process of law.
But, the Legislature at the same time clearly provided for a judicial review as a matter of right when, by Section 22, it provided that:
“Within twenty days after a decision of the board has become final, any party aggrieved may secure judicial review of the decision by commencing an action against the board in the circuit court of Kanawha County. Parties to the proceedings before the board shall be made defendants. The director shall be a necessary party to such judicial review.”
*79It can hardly be conceived that the Legislature would have enacted Section 22, if it had intended to permit an appeal as a matter of right under Section 17. The appeal provided for by the Legislature under the name of Judicial Review is limited to the Circuit Court of Kanawha County, whereas the proceeding which might be instituted under Section 17 is not so limited. This provides support for the position taken by Judge Kenna. If the Legislature had intended to allow a general appeal under Section 17, then of what use or value is Section 22, and what -reason lies behind the enactment of Section 22? There can be no necessity of two appeals.
I am not much concerned about the method by which an aggrieved party is permitted a judicial review or appeal from the action of the Board of Review; but I am concerned when this Court undertakes to nullify and destroy what I regard as a very important provision of the Unemployment Act. The very purpose of Section 11 was to provide that upon a decision of the Board of Review becoming final, if it allowed compensation, such compensation should then be paid regardless of the result of any appeal. To me it seems perfectly clear that if an employer is permitted to appeal under Section 17, he can delay the payment of benefits until the end of all litigation touching the matters in dispute. It is because I foresee this difficulty in the future that I file this dissent. I think it more important that Section 11 remain effective, as written, than that benefits be allowed in any particular case. The case at bar is a difficult one, and if on. the merits of the case claimants are entitled to benefits, claimants are in a position of having filed what they now claim was an appeal within thirty days after the order of the Board of Review. Had théy waited two days, and there had been no attack upon the order of the Board of Review by- the last employer or other interested party, that order would have become final, and within twenty days thereafter they would have had the right to institute their action in the Circuit Court of Kanawha County for a judicial review. They could not ask for that judicial *80review until after the order of the Board of Review had become final, and this puts them in the unfortunate situation from which they now seek escape. We can only grant them relief by what I conceive to be an unwarranted interpretation of the statute as written, and the destruction of valuable rights at present vested in the unemployed under Section 11. The arbitrary holding of Point 3 of the syllabus cannot be defended in law or logic. Under the plain provisions of Section 17, an appeal prevented the order of the Board of Review from becoming final.
For these reasons, I would affirm the order of the Circuit Court of Kanawha County in refusing to entertain the appeal. Having refused to entertain the appeal, I think its decision of the case on its merits was not warranted.