(dissenting).
New Mexico stands alone in the hierarchy of states holding the legislature lacks power to create an industrial commission to hear and screen for final determination by the courts the myriad cases, increasing at an alarming rate, annually, under its workmen’s compensation act.
It is easy enough to brush off this overwhelming weight of authority by fancied distinction in the facts of supporting cases, ignoring the fundamental conclusion announced by them that there is no unlawful delegation of judicial power; or, by asserted differences in the separation of powers clause in our Constitution, Art. 3, § 1, and its counterpart found in the constitutions of other states, when a comparison of ours and theirs affords indisputable proof all have substantially the same proviso, expressed in comparable or almost identical language.
Speaking on the subject in question, the author of the text in 58 Am.Jur. 592, § 25, “Workmen’s Compensation,” said:
“Provisions of workmen’s compensation acts authorizing the determination of controversies thereunder by administrative authorities have generally been sustained as against the objection that such a provision constitutes an unconstitutional delegation of judicial power, and also as against the objection that it is violative of a prohibition against the establishment of courts not provided for in the Constitution. It is within the legislative competency, in the absence of any constitutional restriction, to invest an administrative board or officer with power to determine questions of fact in proceedings under such acts. * * * ”
Representative cases holding there is no unlawful delegation of judicial power, under constitutional provisions similar, and in some cases, practically identical with ours, may be cited as follows: Borgnis v. Falk Company, 147 Wis. 327, 133 N.W. 209, 37 L.R.A.,N.S., 489; Hunter v. Colfax Consol. Coal Co., 175 Iowa 245, 154 N.W. 1037, 1060-1065, 157 N.W. 145, L.R.A.1917 D, 15; Cunningham v. Northwestern Imp. Co., 44 Mont. 180, 119 P. 554; State of Washington v. Mountain Timber Co., 75 Wash. 581, 135 P. 645, L.R.A.1917D, 10, affirmed 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685; Evanhoff v. State Industrial Accident Commission, 78 Or. 503, 154 P. 106; Industrial Commission of Utah v. Evans, 52 Utah 394, 174 P. 825; Utah Fuel Co. v. Industrial Commission, 57 Utah 246, 194 P. 122; Alabam’s Freight Co. v. Hunt, 29 Ariz. 419, 242 P. 658; Walters v. Blackledge, 220 Miss. 485, 71 So.2d 433; Grant Coal Mining Co. v. Coleman, 204 Ind. 122, 179 N.E. 778, 782; Nega v. Chicago Railway Co., 317 Ill. 482, 148 N.E. 250, 39 A.L. R. 1057, and Annotation in 39 A.L.R. 1057.
In Grant Coal Mining Co. v. Coleman, supra, the supreme court of Indiana, touching the question at issue, said:
“While recognizing that the Workmen’s Compensation Act represents a radical departure from the traditional procedure followed in our courts— combining, as it does, in one proceeding and one case the fact finding function of the Industrial Board and the judgment rendering power of a court, we do not believe that there is any violation of the Indiana Constitution as respects the separation of powers, or any violation of the due process provisions of either the state or United States Constitutions.”
Counsel for respondent seem to deplore the use of the word “quasi-judicial” in the field of administrative law. They argue that, since the phrase “judicial power” can be defined in the abstract, in the field of delegated powers in administrative law the use of the term “quasi-judicial” should be abandoned. Unfortunately, for this observation, however, the term is not to be abandoned or ignored. Note this language from the able pen of the late and distinguished Chief Justice Vanderbilt of New Jersey in Mulhearn v. Federal Shipbuilding & Dry Dock Co., 2 N.J. 356, 66 A.2d 726, 730, to-wit:
“The failure to comprehend that administrative adjudication is not judicial springs from the erroneous notion that all adjudication is judicial. This is not so and never has been so. * * Once the obvious right of the Govern- or and the Legislature, each to adjudicate within his or its own proper sphere, is recognized and it is conceded that the courts are not the exclusive instrumentalities for adjudication, the true nature of the administrative adjudications, commonly termed ‘quasi-judicial’, becomes apparent. This term serves to characterize not the quality of the adjudication but its origin outside the judicial branch of the government.”
This court has been as free as others to characterize the action of an administrative agency in its fact finding capacity as “quasi-judicial,” not so much as pausing to suggest that its exercise transcended the separation of powers clause in our state constitution. See a case decided soon after statehood, City of Socorro v. Cook, 24 N.M. 202, 173 P. 682, 684. The court was dealing with the city council of Socorro acting as an administrative agency under a territorial act known as Chapter 77, Laws 1893, to receive applications from various claimants of deeds to land in a Grant one Spanish league distant from the center of the Roman Catholic Church of the City of Socorro and to investigate and issue deeds to persons shown to be entitled thereto. Among other things, the court, speaking through the late Mr. Justice Roberts, said:
“By this act the legislature conferred upon the city council of Socorro certain quasi judicial powers. * * * The legislature having conferred upon the city council the authority to determine whether the original applicant to the lands involved in this litigation was entitled to a deed to the same, and said authority having determined said matter adversely to the city, the question of the applicant’s title as against the city is res adjudicata, and is not open to collateral attack. The courts have uniformly held that the decisions rendered by an officer or a board legally constituted and empowered to settle the questions submitted to it, when acting judicially, have the force and effect of a judgment. (Citations omitted.) * * * ” (Emphasis supplied.)
It was in the sense here employed that the act in question provides awards by the commission shall have the effect of a judgment. So they do, if not set aside on the statutory review provided by the act.
In my opinion, it is unnecessary to leave the decisions of this court to decide the first question posed by the respondent. City of Socorro v. Cook, supra; Lorenzino v. James, 18 N.M. 240, 135 P. 1172; State ex rel. Perea v. Board of County Comm., 25 N.M. 338, 182 P. 865; State v. Kelly, 27 N.M. 412, 202 P. 524, 21 A.L.R. 156; In re Gibson, 35 N.M. 550, 4 P.2d 643; Chiordi v. Jernigan, 46 N.M. 396, 129 P.2d 640; State ex rel. Bliss v. Dority, 55 N. M. 12, 225 P.2d 1007; McCormick v. Board of Education, 58 N.M. 648, 274 P.2d 299; State ex rel. Dickson v. Saiz, 62 N.M. 227, 308 P.2d 205.
Our first section on the Judicial Department, Art. 6, § 1, provides:
“The judicial power of the state shall be vested in the senate when sitting as a court of impeachment, a Supreme Court, district courts, probate courts, justices of the peace, and such courts inferior to the district courts as may be established by law from time tó time in any county or municipality of the state, including juvenile courts.”
The board created by the legislature and involved in the case of City of Socorro v. Cook, supra, was not a court; the legislature did not so comprehend it, nor was it created as such. Yet, just as in the case of the commission created by the challenged act before us, L.1957, c. 246, it was invested with certain quasi-judicial powers, the exercise of which might result in a decision having the effect of a judgment. Did this fact render the territorial act bad when measured by the yardstick of the present separation of powers provision in our State Constitution? It did not. And, somewhat later, after the adoption of our State Constitution, this court in State v. Kelly, supra, summarized its holding, as follows:
“Code 1915, c. 91, which makes the Attorney General, the state auditor, and the state treasurer a ‘board of loan commissioners, of the state of New Mexico,’ and invests such board with power to ascertain and determine the debts and liabilities of the territory of New Mexico and the debts of the counties thereof which were valid and subsisting on January 20, 1910, and which were assumed by the state of New Mexico under the Constitution, and providing for the payment or' refunding of such indebtedness by the issue and sale of bonds or otherwise by such board, does not confer judicial power itpon such board in a constitutional sense, cmd such board does not constitute a court, and a finding or judgment by such board under such statute is not a judicial judgment or decree.” (Emphasis supplied.)
The decision in the Kelly case is right in line with the holding in City of Socorro v. Cook, supra, and in lending our approval in the Kelly case to Cunningham v. Northwestern Improvement Co., supra, to a workmen’s compensation plan in Montana very similar to the one here proposed, we all but decided the very case now before .us in so far as the attack made upon the act is that there is an unwarranted delegation of judicial power.
Both before and since those decisions, the legislature in innumerable cases has created administrative boards, commissions and agencies to administer our many sided economic and industrial problems. We have so many such agencies, most of which must be and are authorized to exercise quasi-judicial powers that it would serve no purpose to attempt to list them. They serve a useful purpose in regulating the activities of a particular occupation or industry and save the courts the time and labor of attempting to take over management and regulation of such businesses and industries. We have the Barbers Board, the Bar Commissioners, the Medical Board, the Real Estate Board and so on ad infinitum.
However much we may disagree with the trend toward the creation and existence of such boards, as a matter of policy, whatever our predilections against them may be, that administrative law is now firmly entrenched in our jurisprudence can not be gainsaid. And so it is we now see this effort on the part of the legislature to create a commission to handle the myriad cases arising under the workmen’s compensation law and relieve the courts of the progressively increasing load imposed on them in hearing and deciding them in the first instance.
An adverse decision by us on the validity of the present act, not only will overrule sub silentio the many cases in which we have upheld legislative acts creating such administrative boards but at the same time will forever foreclose, without a constitutional amendment, any effort to relieve the growing congestion in the courts as a result of hearing and deciding workmen’s compensation cases. The mere circumstance that findings of fact are made binding and conclusive unless supported by substantial evidence is no different from the rule provided for in the judicial review of decisions of all these administrative boards. Their orders are not to be overturned unless “unreasonable, unlawful, or without substantial support in the evidence,” or equivalent language. See Chiordi v, Jernigan, supra; Harris v. State Corporation Commission, 46 N.M. 352, 129 P.2d 323; Hatfield v. New Mexico State Board of Registration, 60 N.M. 242, 290 P.2d 1077; McCormick v. State Board of Education, supra.
Although by no means intimating that counsel for respondent and amici curiae aligning themselves with him in assailing validity of the act have put all their reliance on two cases to be presently mentioned, it seems obvious to us they give greater weight to the California case of Laisne v. State Board of Optometry, 19 Cal.2d 821, 123 P.2d 457, and the New Hampshire case of In re Opinion of Justices, 87 N.H. 492, 179 A. 344, 110 A.L.R. 819, than to any others. The Laisne case is out of line with the great weight of authority in the field of administrative law. It is not even a workmen’s compensation case.
Furthermore, it was decided by a divided court, the vigorous dissenting opinion of Chief Justice Gibson having been concurred in by two other justices. It represents decidedly the better reason and logic and is fortified by far the greater support in the authorities. In so far as either the Laisne case or the New Hampshire case (which like the Laisne case is not a workmen’s compensation case) is in conflict with the views herein expressed, we should decline to follow either. There is in the challenged act no unlawful delegation of judicial power and it is valid against said challenge.
The majority opinion represents an unwarranted invasion by this court of a matter of policy peculiarly within the legislative domain. For the past several years workmen’s compensation cases have proved the most prolific source of litigation reaching the courts. At statehood eight district judges and three supreme court justices were able to care for the normal litigation in the state. Since then two justices have been added to the supreme court and the number of district judges has been increased from 8 to 19, representing an increase of more than one hundred per cent. Workmen’s compensation claims have shown an increase out of all proportion to other types of litigation and are more largely responsible for the increase in the number of judges than any other class of cases.
The legislature sensing this condition, in its wisdom, has sought to alleviate it by the questioned act, setting up an industrial commission to hear and screen for the courts this growing burden on their time and labor. If today’s opinion stands, it will be only a few years until we have a complete bottleneck in this court from the growing number of appeals in workmen’s compensation cases. The effect of this decision compelling the district courts of the state to continue performing the work of an industrial commission can easily so result. Future efforts to remedy the situation may not be viewed sympathetically by the legislature when its members recall the fate of this earlier effort so to do. Indeed, future importunities for legislative aid to break an inevitable log jam of appeals in this court understandably may meet with the same reception accorded the traditional “voice in the wilderness.”
The majority are content to nullify completely the legislative action in adopting this statute. Having done so, they see no purpose, nor do we, in passing upon the Governor’s exercise of the partial veto except to say their failure to discuss same supports an implication they see in his action in this behalf nothing fatal to the validity of the act as a whole. Our holding in State ex rel. Dickson v. Saiz, supra, touching the Liquor Control Statute would rather discourage a declaration of invalidity on this ground since, to the extent an act of partial veto exceeds constitutional bounds, it would leave the law existing as if no attempt to exercise the right had ever taken place. Compare, State ex rel. Jamison v. Forsyth, 21 Wyo. 359, 133 P. 521; Fergus v. Russell, supra. We see no respect in which the exercise of the partial veto shown would not leave enough of the act intact to avoid a complete nullification of the statute.
It is difficult to comprehend how the majority, mindful of the presumption of validity attending our appraisal of this enactment, in the face of our holding in the array of prior decisions such as City of Socorro v. Cook, supra; State v. Kelly, supra (where we expressly approved the Montana case of Cunningham v. Northwestern Improvement Co., supra, upholding a workmen’s compensation plan like unto ours); Chiordi v. Jernigan, supra; Harris v. State Corporation Commission, McCormick v. State Board of Education, both supra, and the vast number of cases from other jurisdictions repudiating the claim such an act constitutes an unconstitutional delegation of judicial power, can justify the declaration they make today in invalidating this act.
Certainly, in doing so, the majority ignore what we said, recently, in State ex rel. Dickson v. Saiz, supra [62 N.M. 227, 308 P.2d 209], to-wit:
“Furthermore, in the attack made upon the bill or statute in this Court we are confronted at the very outset with a presumption of the validity of the act. Indeed, it has been many times held in this Court that it should be well satisfied of the invalidity of an act upon constitutional grounds before striking it down; that if two constructions each equally reasonable should exist, the one sustaining the validity of the act is to be preferred. Fowler v. Corlett, 56 N.M. 430, 244 P.2d 1122. Some courts, even the highest court of the land, go so far as to suggest an appellate court should be satisfied beyond a reasonable doubt of an act’s invalidity on constitutional grounds before declaring it so. State ex rel. Hannah v. Armijo, 38 N.M. 73, 28 P.2d 511; State ex rel. New Mexico Dry Cleaning Board v. Cauthen, 48 N.M. 436, 152 P.2d 255; State v. Shroyer, 49 N.M. 196, 160 P.2d 444.”
Today’s decision turns back the clock for fifty years in the long struggle for a place in our jurisprudence of administrative law. That place has been so firmly established that, until now and for many years, last past, mme has been bold enough to renew the war on its existence. Truly, today’s decision sounds an anachronistic note in the legal bibliography of administrative law. Neither the legislature has exceeded its constitutional power nor has the Governor in any material respect by an exercise of the partial veto crossed a constitutional barrier. An abiding conviction tells me this court, the head of the judicial department, rather than the legislative or the executive department, mistakenly, to be sure, but through erroneous interpretation, nevertheless, has crossed the barrier this time. Yet, after all, some tribunal must have the final say and, as a distinguished jurist once said:
“We are under a Constitution, but the constitution is what the judges say it is.”
We would not have it otherwise.
It follows from what has been said that the majority opinion fails to meet with my approval. For the reasons given,
I dissent.
ARMIJO, D. J., concurs.