(193 P.)

Appeal from Superior Court, Cochise Coun- the crime for which the defendant is held to ty; A. C. Lockwood, Judge.

Charles Gardner, Sr., was charged with malicious mischief. From an order granting a motion to set aside the information, the State appeals. Reversed and remanded.

Wiley E. Jones, Atty. Gen., for the State.

CUNNINGHAM, C. J. The respondent was charged, in complaint filed in the justice court, with having willfully, unlawfully, fe

loniously, and maliciously made an aperture in a wooden pipe line, "with the intent, then

and there, to injure the same." On Septem

ber 2, 1919, the charge was examined into, and the court entered the following order of

commitment:

"It appearing to me that the crime of malicious mischief, a felony, to wit, the making of an aperture in a wooden pipe line, being a pipe of a structure used to conduct the water for agricultural purposes, has been committed, to wit, in Lelie Canyon (etc.), Cochise county, state of Arizona, on or about the 13th day of April, 1919, and that there is sufficient cause to believe Charles Gardner, Sr., guilty thereof."

The order holding Charles Gardner, Sr., to answer for said crime in the superior court

of said county, follows with the usual order fixing bail. The information, so far as is material to this appeal, is as follows:

* *

answer, and as nearly as may be, the time and place where the same was committed. There is nothing in the office which a commitment is designed to perform, requiring a detailed statement of the circumstances attending the commission of the crime, other than the time and place of the alleged criminal act. It is intended merely as a protection to the officer executing it, and as showing the authority upon which he restrains

the accused person of his liberty, and as fur

nishing the county attorney authority to in

form against such accused person, charging

him with the commission of a crime, the general nature of which is referred to in the commitment.

[2] If, in the commitment, the description of the nature of a statutory crime points with certainty to the statute on the subject, there is a reasonable inference that such description indicates the existence of all the essentials of the offense. Fertig v. State, 14 Ariz. 540, 133 Pac. 99, sustains this view. See 14 Ariz. page 545, 133 Pac. 99, and cases cited. In Quayle v. State, 19 Ariz. 91, 165 Pac. 331, ment contains references which reveal cerwe held, in substance, that if the committainly, definitely, and exactly the charge for which the accused is committed, and the information charges the commission of the offense so revealed in the commitment, in such case the commitment is sufficient authority for the filing of the information, and it will not be dismissed.

Charles Gardner, Sr., accused by the county attorney of Cochise county by this information of the crime of maliciously injuring and cutting a pipe line, committed as follows: That said Charles Gardner, Sr., on or about the 13th day of April, 1919, * * * did then and there willfully, unlawfully, feloniously, and maliciously make an aperture in a wooden pipe line, with intent then and there to injure the same; the said wooden pipe line being then and there a structure erected and used for the purpose of conducting water for agricultural purposes." Without any doubt, such tural purposes,

etc.

[3] The commitment here involved states generally that the accused is held to answer a crime described as "malicious mischief, a felony, to wit, the making of an aperture in a wooden pipe line, being a pipe of a structure used to conduct the water for agricul

description of the offense for which the accused is held to answer is no other than the

The defendant filed the following motion offense defined in section 616, P. C. Ariz. to the information:

"Comes now the defendant, and moves the court to set aside the information herein upon the grounds that before the filing thereof the defendant had not been legally committed by a magistrate."

The court first denied the motion. Thereafter, on October 3, 1919, the court granted the motion and set aside the information. From such order, the state has appealed.

The appellant informs us that the defendant, in support of his motion, successfully contended in the lower court that the commitment did not state any crime known to the law. The respondent does not appear, and we will consider the record from the viewpoint suggested by the Attorney General. [1] The commitment is substantially in the form required by section 885, P. C. Ariz. 1913, if it is stated gererally therein the nature of

1913, chapter entitled "Malicious Mischief." Such description points directly, definitely, and certainly to such statute, and such offense is the offense examined into and charged in the information. It is true that the commitment does not state the purpose or intention moving the defendant to make the aperture in the pipe line, but that was not necessary to the description of the offense in the commitment. An allegation of intent is necessary to charge the crime denounced by the statute, and that allegation appears in the information.

The commitment reasonably states the facts which section 885, P. C. Ariz. 1913, re quires to be stated to authorize the filing of an information charging the commission of a crime defined in section 616, P. C. A. 1913 and the court erred in ruling that the defend. ant had not been granted a preliminary ex

(193 P.)

GIDEON, J. Louis J. Rushton, a resident | and whether that procedure in any way conof Salt Lake county, died on January 2, flicts with the state Constitution. 1919, as the result of an accidental injury received while in the employ of appellant. He left as his dependents his widow and nine minor children, the oldest being 13 years of age. He also left one unborn child. The nature of the work and the facts concerning the employment of the deceased will be discussed during the course of this opinion. By so discussing, the application of the facts to the conclusions reached will be more readily understood.

The widow, Julia C. Rushton, in her own right and as guardian of the minor children, petitioned the Industrial Commission for compensation for the death of her husband. The company answered her petition. Subsequently, on May 6, 1919, the commission made an award. An appeal was taken by the company to the district court of Salt Lake county. That court affirmed the award, and the company, by appeal, now brings the entire record to this court for review.

Numerous errors are assigned and relied on by appellant as grounds for a reversal of the award made by the commission. We shall attempt, in the course of the opinion, to review the objections thus made.

In addition to the claim made that the employment of deceased was such that the commission had no jurisdiction over the case, it is further urged by appellant (and such may be designated the dominant objection) in support of its numerous assignments of error that the award, based as it must be, upon the proceedings leading up to the same, does not relieve appellant from any future liability to the minor heirs of the deceased should it be determined in proceedings instituted by such heirs, or by one representing them, that the death was caused by the negligence of the appellant company.

Counsel for appellant has prefaced his very able and extensive printed argument by reminding the court that the Industrial Commission is a mere creature of statute, and exercises only ministerial and administrative duties, and has no judicial power; also that the commission does not have exclusive or final authority to determine what matters come within its jurisdiction, and that such is a judicial question, which the courts must finally determine; that for that purpose courts should and will review the evidence and findings to determine the jurisdiction of the commission in any particuIt is conceded by appellant that in the lar case. This court has held that the Inlight of the authorities the underlying prin- dustrial Commission is an administrative ciples of the Workmen's Compensation act body, and also that the court will review (Comp. Laws 1917, §§ 3061-3165) do not conthe record, at least to the extent of deterflict with any constitutional rights. N. Y. mining whether there is any evidence to supCent. R. R. Co. v. White, 243 U. S. 199, 37 port the commission's findings. Industrial Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, Com. v. Evans, 174 Pac. 825; Garfield Smelt1, Ann. Cas. 1917D, 629; Hawkins v. Bleak-ing Co. v. Industrial Commission, 178 Pac. ly, 243 U. S. 210, 37 Sup. Ct. 255, 61 L. Ed. 678, Ann. Cas. 1917D, 637; Mountain Timber Co. v. Washington, 243 U. S. 219, 37 Sup. Ct. 260, 61 L. Ed. 685, Ann. Cas. 1917D, 642; Arizona Employers' Liability Cases, 250 U. S. 400, 39 Sup. Ct. 553, 63 L. Ed. 1058, 6 A. L. R. 1537; Reteuna v. Ind. Com., 185 Pac. 535. It cannot be fairly claimed that the provisions of the act are in conflict with natural justice. The objections against upholding the award in question therefore relate principally to the jurisdiction of the commission over the parties and the subjectmatter and the procedure by which it is claimed such jurisdiction was acquired,

It is claimed that in the application or administration of certain provisions of the act in controversy the Constitution of the state has been violated, and that the effect of the award in this proceeding amounts to taking property without due process of law. The question, or questions, therefore, presented for determination must be decided upon whether or not jurisdiction is given the commission under the facts in this particular case, to make any award, and if that be granted whether the commission has followed the procedure prescribed by the act,

57.

Error is assigned on the alleged ground that the petition filed with the Industrial Commission by the widow and guardian is insufficient to support an award. In other words, it is urged that the petition does not state facts sufficient to entitle petitioner to any relief against appellant. On the other hand, it is contended by the Attorney General that any application that will set the machinery of the commission in motion is sufficient.

Assuming, without so holding, that the commission was without jurisdiction to grant petitioner any relief or to make an award unless the petition contains sufficient facts to support an award, it remains, nevertheless, to be determined whether the petition in this case is sufficient to support the award made.

[1] It appears from the application filed with the commission that the deceased, Louis J. Rushton, was killed by an accident arising out of and in the course of his employment by the appellant here, defendant in the proceedings before the commission; that the petitioner is the widow of the deceased and the guardian by judicial appointment of

his minor children. The daily wage received ↑ thorized to transact the business of workby the deceased at the time of the injury resulting in death is also stated. The petition contains the names of the minor children and their ages. The widow and minor children are, by the provisions of Comp. Laws Utah 1917, 3140, presumed to be dependents of the deceased. We have here, then, an application or petition stating the death by accident, the employment by appellant, the daily wage, and the names, ages, and relationship of the dependents. The necessary elements to entitle the appellant to an award, hence the necessary facts to give the commission jurisdiction to make the award, are found in the petition.

(198 P.)

tinue, and the amount of the same, not to a greater amount than they would be entiexceed the maximum fixed by statute.

[3] While it may be true that no express provision is found in the act giving the commission jurisdiction over self-insurers, the right to exercise such jurisdiction, in our judgment, is clearly implied as necessary and incident to the exercise of the other powers granted and compliance with the duty imposed by the other provisions of the .act. To hold otherwise would be to run contrary to the entire spirit and purpose of the law.

tled to under the act, from which annoyance or litigation the insurer in the state fund or by a stock or mutual insurance company would be relieved.

The answer of appellant to the Attorney General's query as to what the parties could do if they failed to agree is that the courts are open and are bound to protect any right that the dependents or partial dependents may have. Avoiding litigation is among the prime objects sought and intended to be accomplished by the enactment. The commis[4] Society is interested in seeing that in- sion was created largely for that very purdustries bear the expense of caring for those pose. The privilege of permitting any eminjured while working in such industries, as ployer to become a self-insurer was not given well as in seeing that the dependents of for the benefit of the employé, but, on the workmen losing their lives in such industries contrary, was given for the employer's beneshall be protected and given at least some fit. To hold that the commission is without of the comforts of which they are deprived authority to grant an award in the case of by the death of the provider. The Legisla- | a self-insurer would, to a very large extent, ture wisely gave to the commission some dis- defeat the very purpose sought to be accomcretion as to the time of payment and the plished by the enactment of the law. This application of the same to the support of the the courts should not do unless no other redifferent dependents. It is a matter of com-sult is consistent with the provisions of the mon knowledge and human experience that in a great many cases it would be unreasonable waste to pay the entire amount of an award in a lump sum, and it would be criminal neglect to fail to see to it that the award, when paid, is used for the support of the minor children, left defenseless by the death of the father. The mother, often without business experience or any knowledge of financial affairs, would too frequently become the victim of unscrupulous, or, possibly, too optimistic promoters, and in a few short months the money awarded for the protection of the children of the deceased would, if released from the control of the commission, be invested in worthless securities. To defend against such losses the commission retains control of the award, and may direct its distribution among the dependents in such manner as it may deem just and equi

table.

entire act. By holding that the commission has authority to award compensation against a self-insurer, this court is creating no new agency, nor is it granting to such agency any power or authority not reasonably arising by necessary inplication in the exercise of the power granted.

In paragraphs 4 and 5 of the syllabus to the case of Gilbert v. Craddock, 67 Kan. 346, 72 Pac. 869, it is said:

"A necessary implication does not shut out every other possible or imaginary conclusion, but is such a one as, under all the circumstances, a reasonable view impels us to take, the contrary of which would be improbable and absurd.

"In drawing such implication, courts may read the entire act, as well as past acts in pari materia; take into consideration the purposes and scope of the act, the inconveniences, inconsistencies, and absurdities of a contrary view, and the general policy and character of our institutions."

In Brown v. Clark, 102 Tex. at page 333, 116 S. W. at page 364 (24 L. R. A. [N. S.] 670), the court said:

To hold that the commission is without jurisdiction to make an award against a selfinsurer would be to make the law discriminatory, and would leave the injured employé of a self-insurer, or his dependents in case of death, largely at the mercy of the employer. In the event of failure to agree "It is elementary that the grant of a spebetween the employer and the employé no cific power or the imposition of a definite duty relief could be had without resort to lit-upon any person or court confers by implicaigation. On the other hand in the case of tion the authority to do whatever may be necan employer insured by or through the state, essary in order to execute the power conferthe commission undoubtedly has the power red or to perform the duty imposed, and the to fix the amount and direct payment, and the same is true in case of an employer insured by a stock or mutual association. It would likewise be discriminatory against the insurer himself, and might subject him to litigation in the event that the injured employés or dependents were disposed to exact

implied power is as much a part of the stat

ute as if it were written into the body of the act itself."

The members of this court are all of one mind that the commission is clothed with authority to make an award against a self