H. J. MURPHY, Appellant,
THE INDUSTRIAL COMMISSION OF ARIZONA, J. NEY MILES, HOWARD KEENER, and CARL HOLMES, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment affirmed.
Mr. George F. Macdonald, for Appellant.
Mr. Don C. Babbitt and Mr. Howard A. Twitty, for Appellees.
[52 Ariz. 344] McALISTER, C.J.
One H. J. Murphy filed in the Superior Court of Maricopa County a complaint against the Industrial Commission of Arizona, J. Ney Miles, Howard Keener and Carl Holmes, commissioners, in which he sought relief from an order made by the commission on September 2, 1931, fixing the amount of compensation to which he was entitled as a result of an accident occurring on June 20, 1929, while he was in the discharge of his duties as an employee of the Tremaine Alfalfa Ranch & Milling Company, which was insured by the Industrial Commission. A demurrer to the complaint, which had been amended the third time, was sustained, and the court, being of the view that he could not state a cause of action, denied him the privilege of pleading further and entered [52 Ariz. 345] judgment dismissing the complaint. From this judgment plaintiff appeals.
According to the allegations of the complaint appellant was employed as a construction foreman at a salary of ten dollars a day and pursuant to an agreement between the Industrial Commission and his employer the former made an order allowing him sixty-five per cent. of his monthly wages during his hospitalization, but in computing the amount thereof based it on $150 per month, when his salary was in fact $260 per month. It appears further that on September 2, 1931, the Industrial Commission made another order allowing appellant compensation upon the basis of fifty per cent. of his average monthly wages for a period of twenty months and that the commission again erroneously computed the amount due him by using $150 instead of his actual salary of $260 a month, and that as a result of this erroneous calculation appellant has been deprived of fifty per cent. of $110 for twenty months or of $55 monthly for that period.
It is further averred that under the Revised Code of 1928 appellant was entitled to fifty per cent. of his average monthly wage for twenty months and that the Industrial Commission had no jurisdiction to compute the amount due by using as a basis other than the actual salary the injured employee was earning at the time of injury and that appellant is entitled to have a court of competent jurisdiction hear the matter and correct the error by a proper order.
In filing the action appellant evidently proceeded upon the theory that the superior court has jurisdiction to set aside, reverse or amend orders of the Industrial Commission making awards of compensation. His first assignment is that the trial court, after finding that error had been committed by the Industrial Commission in computing benefits to which [52 Ariz. 346] he was entitled, sustained a demurrer to his third amended complaint and that it did so notwithstanding the fact that section 1406, Revised Code of 1928, gave it jurisdiction to revise, correct or amend orders of the commission. That section reads as follows:
"Jurisdiction of courts. No court of this state, except the superior court and the supreme court on appeal, shall have jurisdiction to review, vacate, set aside, reverse, revise, correct, amend, or annul any order of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its duties; provided, that the writ of mandamus may issue from the supreme court to the commission in all proper cases, and that an appeal may be taken from the superior court to the supreme court in all cases."
The effect of this section is to provide that superior courts and the Supreme Court on appeal have jurisdiction to 'review, vacate, set aside, reverse, revise, correct, amend, or annul" any order of the Industrial Commission, and appellant contends that the word, "order," as used therein, includes all orders, those making or fixing the amount of compensation an injured workman is entitled to, as well as all others. This is not, as we view it, a correct
construction of its meaning. Just two sections preceding it is found this language:
"§ 1404. Action to vacate orders, procedure. Any person in interest, dissatisfied with an order of the commission, may commence an action in the superior court of the county where the property, plant or place of employment affected by such order may be situate, against the commission as defendant, to set aside, vacate or amend such order, on the ground that the order is ...