The majority opinion in this case decides that on appeals from decisions of the State Industrial Accident Commission of Maryland no evidence can be considered other than that contained in the record. In so much of the opinion as states that conclusion, I am unable to concur for the reasons: (1) That as I see it, that result cannot be reached except by *Page 520 reading into the act by judicial amendment words which the Legislature omitted, and (2) that when so amended the terms of the act under consideration become so inconsistent and conflicting as to be void for uncertainty. Chapter 800 of the Acts of 1914 provided that upon such an appeal the court should "((from the record made before the Commission or upon any stipulation of the facts which may be agreed to and signed by the parties and filed with such appeal)) determine whether the Commission * * * has exceeded the powers granted it by the Act, whether it has misconstrued the law and facts applicable in the case decided ((as disclosed by the record aforesaid or such stipulation)). If the Court shall determine that the Commission has acted within its powers and has correctly construed the law and facts, the decision of the Commission shall be confirmed, otherwise it shall be reversed or modified. Upon the hearing of such an appeal the Court shall, upon motion of either party filed with the Clerk of the Court according to the practice in civil cases, submit to a jury any question of fact ((disclosed by such record or stipulation)) involved in such case." That particular part of the section (section 55) remained unchanged until the Acts of 1931 (chapter 406) which amended it by adding to it the words inclosed in double brackets in the above quotation. Appellants contend that the effect of that amendment is to limit juries sworn on issues in appeals from the commission to a consideration of the evidence and only the evidence taken before the commission. The appellee contends that the amendment is unconstitutional, (1) because it denies to litigants in such cases the right of trial by jury, (2) and it delegates judicial powers to an administrative body. There is, however, a third theory, which is that the purpose of the act was not to limit the right of the jury to consider evidence, but to restrict it to a consideration of the issues tried before the commission.
The purpose and design of the entire law of which that section is an important part was to provide for every workman, disabled in the course of an extra-hazardous employment as the result of an accident arising out of the same, the *Page 521 means to live during his disability, and in the event of his death reasonable compensation to his dependents. The relief which it extended to those entitled to its benefits was not large, but it was intended to be fairly adequate, prompt and certain. It is also manifest from its preamble and from the structure of the entire act that the Legislature intended that its administration should be simple and informal, in order that those entitled to compensation under it should receive it with the least possible delay and at the least possible expense. It was recognized that in many cases claimants would, through want or inexperience, be unable to employ counsel, or themselves conduct a proceeding which required technical knowledge, special skill, or experience. The machinery set up by the act was for that reason intended to provide a procedure so simple and plain that claimants would be able with the aid of the commission to themselves present their claims, in the assurance that they would receive all the benefit which the act intended they should have. To that end it provided that it shall be presumed, in the absence of substantial evidence to the contrary, that a claim filed under it comes within the provisions of the act (Code, art. 101, sec. 64), that the article is to be interpreted to effectuate its general purpose (section 63), that the commission is not to be bound by rules of evidence, or any technical or formal procedure, but is to make its investigation in such manner as is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of the act (section 10), that it is authorized to adopt rules of procedure but must make them as "summary and simple as reasonably may be" (section 9), and that it is required to prepare and furnish free of cost blank forms needed for the several steps needed to complete the course of a claim for compensation under the act (section 12).
Notwithstanding its clear and simple mandates, as the result of more than one hundred cases in which its provisions have been construed by this court, a substantial body of substantive and procedural law relating to it has come into existence, with a growing tendency to make the administration *Page 522 of the act more technical and the relief it was intended to give less certain. When, therefore, its provisions come under review, they should be considered, not only in the light of that result, but also in connection with the legislative injunction that the article be so interpreted and construed as to effectuate its general purpose.
Coming to the precise point in issue here, the first objection to the constitutionality of the act is that it deprives the claimant of the right to trial by jury. That objection may be considered under several heads: (1) That it is a right secured by article 15, sec. 6 of the Constitution of Maryland; (2) that to limit the power of the court to admit or consider evidence constitutes an unwarranted encroachment on the powers of the judicial department or the state government (Maryland Declaration of Rights, art. 8); (3) that, if construed as so limiting the power of the court, the act is so inconsistent in its terms as to be void for uncertainty.
Whether the claimant is entitled to a trial by jury under article 15, section 6, of the Constitution of this state, is not free from doubt. The cases of Frazier v. Leas, 127 Md. 576,96 A. 764, 766, and Solvuca v. Ryan Reilly Co., 131 Md. 281,101 A. 710, appear to recognize the right of litigants proceeding under the act to a jury trial by virtue of article 15, section 6, of the state constitution, but in Branch v. Indemnity Ins. Co.,156 Md. 487, 144 A. 696, 697, a different conclusion was reached, apparently upon the authority of State v. Clausen, 65 Wash. 156,117 P. 1101, and Mountain Timber Co. v. State ofWashington, 243 U.S. 219, 37 S. Ct. 260, 61 L. Ed. 685, and a statement in 28 R.C.L. 744 depending largely upon those cases and State v. Mountain Timber Co., 75 Wash. 581, 135 P. 645. But in State v. Clausen, supra, not only was the constitutional provision under review narrower than that in question here, but one of the judges who sat in the case in a concurring opinion expressed the view that the opinion did not finally decide whether the Legislature, in the absence of a constitutional amendment, could dispense with a jury trial in such cases. InMountain Timber Co. v. State of Washington, supra, *Page 523 where the application of the Seventh Amendment of the federal constitution was in issue, it was held that the Legislature had not only the right to dispense with a jury trial, but that it could also dispense with any judicial review of the acts of the commission. However, in view of the fact that this court alone has been called upon to review the decisions of the commission of this state in over one hundred cases, and that over sixty official opinions have been filed by the several attorney generals of the state since 1915 upon the powers and duties of the commission, it cannot well be said that it does not exercise judicial powers, or that it would not constitute a court unless its acts were in some way subject to judicial review. It was held in Solvuca v. Ryan, supra, that it was not a court and did not exercise judicial power in a constitutional sense, but the act, then as now, did provide for a judicial review, and it does not follow that an act which failed to provide for such a review would be upheld, although it may be said that since Frazier v.Leas, supra, and Solvuca v. Ryan Reilly, supra, there has been apparently a decided change in the attitude of courts generally towards constitutional mandates and prohibitions, and that constructions of such provisions which would not have been accepted by the judges of that period are accepted today as a matter of course. For that reason the older precedents have lost much of their force, and are either set aside or softened by judicious, though artificial, tenuous, constructions. In theMountain Timber Co. v. State of Washington case, reported in243 U.S. 219, 37 S. Ct. 260, 264, 61 L. Ed. 685, where the court was dealing with the application of the Seventh Amendment to the Federal Constitution, which does not affect state action, it was said: "As between employee and employer, the act abolishes all right of recovery in ordinary cases, and therefore leaves nothing to be tried by jury." But to that comment there are two obvious answers (1) that in this state the act does provide for a trial by jury, and there must therefore be something to be tried by a jury, and (2) that, while the act does take away valuable rights and privileges, it does give in their place other rights and privileges *Page 524 just as real, just as substantial, and in a broad sense more valuable.
In Branch v. Indemnity Ins. Co., supra, it was said, in referring to Solvuca v. Ryan Reilly Co., supra, and Frazierv. Leas, supra, that: "As the statute actually provided for jury trials, it was not necessary to consider and determine, in either of the cases cited, whether the act would be invalid in the absence of such a provision," but that comment was quite as applicable to the case in which it was made, for there, too, the act provided for a jury trial.
The only point involved in Branch v. Indemnity Ins. Co. was whether an employer who had been required to pay compensation by a decision of the commission was entitled to a stay until an appeal from that decision had been heard. So that the reasoning in that case led as certainly to the conclusion that the appellant was not entitled to an appeal at all, as it did to the conclusion that on an appeal he was not entitled to a jury trial.
A majority of the court in this case are of the opinion that at least Branch v. Indemnity Ins. Co., supra, conclusively determines that the parties to litigation before the commission are not entitled to a jury trial under the Maryland Constitution, which leads to the second question, that the act delegates judicial powers to a mere administrative commission. That question was considered in Solvuca v. Ryan Reilly, supra, and there it was held that it had no such effect, and, unless there has been some fundamental change in the statute since that time, that decision should be binding. But the only change in the statute which affects the question is that under consideration, and, since it has been established by Branch v. Indemnity Ins.Co., supra, that no jury trial at all is necessary, it follows that a mere limitation of the questions which the jury may consider is not sufficient to cast a doubt upon the present binding force of Solvuca v. Ryan Reilly.
Assuming the constitutionality of the act, the remaining question is its meaning. Upon comparing it with the statute in force at the time Frazier v. Leas, supra, was decided, it *Page 525 will be found that one of the two changes effected by the amendment is to add to the words "the court shall," occurring in the first sentence of section 56, the words "from the record made before the Commission (or upon any stipulation of the facts which may be agreed to and signed by the parties and filed with such appeal)." The provision for a jury trial which occurs in another and later sentence is unchanged, and identical with the statute as it was when considered in Frazier v. Leas, supra, except for the words inclosed in double brackets, and provides that upon hearing the court shall on motion submit to a jury any question of fact ((disclosed by such record or stipulation)) involved in such case.
That is to say, the act of 1931 does provide that the court shall submit to a jury any question of fact, which is equivalent to any issue of fact, but it limits the issues to be so submitted to those disclosed by the record. It contains no reference of any kind to the evidence which may be offered in connection with those issues, and to give it the effect of limiting the jury to a consideration of the record or stipulation, it would be necessary to put into the act by legislative enactment, as was done in Ohio, 109 Ohio Laws, p. 296, or by judicial construction, as we are asked to do here, the additional words "nor shall either party upon such appeal, be permitted to offer any evidence other than that contained in such record or stipulation."
It will be noted that the only change made by the act in the language considered in Frazier v. Leas, supra, is to add to the words "any question of fact" the qualifying words "disclosed by such record or stipulation," and that the following language, used by Judge Burke in that case, is quite as applicable to the Act of 1931 as to the Act of 1914: "There is no provision in the act which attempts to confine or limit the trial to the testimony taken before the Commission. Section 55 makes no mention of that testimony, nor is there any statement in the act as to its admissibility or legal effect on appeal. It may be that in some cases the question of the jurisdiction could be determined without recourse to evidence outside the record. The proceedings may disclose a want of *Page 526 jurisdiction. In other cases the defect of jurisdiction may depend upon some fact to be established at the trial. Unless this defect be apparent upon the face of the proceedings, how can the presumption in favor of the jurisdiction be overcome, if the party appealing be denied the right to establish the facts showing want of jurisdiction? Has he not a clear right to offer any pertinent and relevant evidence upon any question of fact submitted to the jury? If not we might have the unheard of situation of a trial by jury in which one of the parties was held bound by evidence which he disputed, and denied the right to offer evidence in his own behalf. Trial by juries implies the right of either party to the cause to call witnesses to support his case. The granting to one a right of trial by jury, and then to deny him the right to introduce witnesses in support of his case, would be like the play of Hamlet with Hamlet left out. We have never heard of a case in which this right was denied, and we do not suppose the Legislature intended to introduce such a novel procedure."
If the contention of appellants is correct, it would not only be necessary to vitally amend the act by judicial construction, but to amend it in such a way as to destroy any benefit from the right of trial by jury which the Legislature intended to give. For it is unlikely that an appellant in such a case would be benefited, or that the purpose of the act would be furthered, by merely constituting a jury a board of review to pass upon the identical evidence before the commission. It is possible, and it frequently happens, as it did in this case, that the claimant, without counsel, inexperienced, possibly still suffering from the effects of disability or disease, fails at the hearing before the commission to prove vital facts, or that facts not available at such hearing will later come to the attention of the employer or insurer which may control the final disposition of the case. The evident purpose of the section under review was to permit the court on appeal to consider all available evidence in order that there might be there a just and final determination of the case. It has been suggested that either party might apply for a rehearing *Page 527 before the commission to offer additional evidence, and for some purposes that is true. Bethlehem Corp. v. Simmons, 143 Md. 509,122 A. 678. But, having in mind the purpose of the act, it cannot be reasonably assumed that the Legislature intended that the parties should be tossed to and from between the commission and the court to settle an issue which the court might dispose of at once and finally. To state, as the act does, that there shall be a jury trial of any issue of fact presented by the record, and then to say that at such trial the parties may offer no evidence not before the commission is to grant a right and take it away at the same time, for the two statements are in irreconcilable conflict. The only issue which the jury could try would be one of fact, but a jury trial of an issue of fact at which the parties are denied the right to prove the facts by any and all available and admissible evidence is no jury trial at all. IndustrialCommission v. Sylva, 30 Ohio App. 208, 162 N.E. 777; IndustrialCommission v. Hilshorst, 117 Ohio St. 337, 158 N.E. 748. It may well be that the commission might reject material and relevant evidence, and yet, although the purpose of the appeal must be to correct errors, the construction given the act by the majority opinion would take from the court any power to do that in such a case, since the rejected evidence would not be in the record and it could not hear it on appeal.
It is true that the statute provides that the "court" shall from the record made before the commission determine whether the commission exceeded its powers, or misconstrued the law and facts, but the functions of the court sitting as an appellate tribunal to review questions of law, and the court sitting as a jury or the jury to determine issues of facts, are essentially different. And in the act the provision for a jury trial does not occur in the sentence which refers to functions and duties of the court, but in a different sentence, which begins after that which deals with the powers and functions of the court has been completed.
If the Legislature had intended that the limitation which applies to the court should also apply to the jury, it could *Page 528 have said that, but, instead of saying that the jury should determine from the record whether the commission had erred in its finding on any issue of fact found therein, it provided that the jury should determine the issues of fact found in the record, and it referred to the record to limit the number of issues which the jury might consider, and not to limit the evidence that might be considered in connection with them.