Prior to the 1941 amendment of the Washington Industrial
Insurance Act, there was a 3-year limitation on the filing by a
workman of a claim for readjustment of compensation on account of
aggravation of injury. The 1941 amendment authorized the filing of
such a claim within five years from its effective date. There was
no limitation, however, before or after the amendment, on the
reopening of a claim and the awarding of additional compensation by
the Department on its own motion. A workman, against whom the
3-year limitation of the preexisting law had run, filed pursuant to
the 1941 amendment a claim for readjustment, and was awarded
additional compensation.
Held: that, upon the record in this case, the appellant
employer -- having shown neither a probability that its future
premium rate
Page 326 U. S. 296
would be increased by allowance of the additional award nor
that, under the preexisting law, the liability for an additional
award had been extinguished -- failed to make a showing of such
substantial injury, actual or impending, to any legally protected
interest as would entitle it to question the validity of the
statute under the due process clause of the Fourteenth Amendment.
Pp.
326 U. S. 297,
326 U. S.
307.
22 Wash. 2d 250, 155 P.2d 802, appeal dismissed.
APPEAL from a judgment which sustained the constitutionality of
a state statute as applied to the appellant.
MR. JUSTICE RUTLEDGE delivered the opinion of the Court.
This appeal is from a judgment of the Supreme Court of
Washington rendered after the case journeyed twice through the
state's appropriate administrative and judicial tribunals. 21 Wash.
2d 420, 151 P.2d 440, 155 P.2d 802. [
Footnote 1] The judgment sustained an award made by the
appellee, Department of Labor and Industries, in favor of Rowley,
the individual appellee. The award was for compensation on account
of the aggravation, by 1943, of injuries originally
Page 326 U. S. 297
sustained by Rowley in 1937 in the course of his employment by
appellant. A prior award for the original injury, made in 1938,
became "final" [
Footnote 2]
without appeal, and is only indirectly in issue. Both awards were
made pursuant to the state's statutory provisions for industrial
insurance, and were payable from a publicly administered fund
maintained, as the statute required, by "premiums" or contributions
of employers. [
Footnote 3]
Appellant claims that the statute has been applied, in respect to
its liability for the payment of premiums, in a manner to deprive
it of property without due process of law, contrary to the
prohibition of the Fourteenth Amendment.
The controversy results from a 1941 amendment of the Washington
Industrial Insurance Act [
Footnote
4] by which the time allowed for the beneficiary of an award to
apply for additional compensation on account of aggravation of his
injury was extended from three to five years after the
establishment (or termination) of compensation or, by virtue of a
proviso, to five years from the amendment's
Page 326 U. S. 298
effective date. [
Footnote 5]
Since Rowley's application presently involved was made in time only
by virtue of the proviso, [
Footnote
6] appellant assets that the amendment has been applied
retroactively to revive a claim barred by the preexisting law, to
its substantial detriment, and thereby, under this Court's decision
in
Danzer & Co. v. Gulf & S.I. R. Co.,
268 U. S. 633, the
claimed unconstitutional consequences have been created.
Page 326 U. S. 299
Appellees have responded by relying upon
Campbell v.
Holt, 115 U. S. 620, and
Chase Securities Corp. v. Donaldson, 325 U.
S. 304. They have urged that, as applied, the statute
has produced no unconstitutional injury or detriment to any
substantive interest of appellant, and that the only effect has
been to modify its procedural rights, in particular by supplying
judicial review of awards for aggravation where previously only an
administrative remedy was available to the employee. [
Footnote 7] As all of these contentions are
somewhat interrelated, precise consideration requires more explicit
statement of the statutory scheme in its application to the
facts.
Washington's plan of industrial insurance is much like that of
Ohio, briefly described in
Copperweld Steel Co. v. Industrial
Commission, 324 U. S. 780;
cf. Mattson v. Department of Labor, 293 U.
S. 151. The state Supreme Court has characterized the
system as neither an employers' liability act nor an ordinary
workmen's compensation act, but rather as an industrial insurance
statute having all the features of an insurance act.
Stertz v.
Industrial Insurance Commission, 91 Wash. 588, 594, 595, 158
P. 256. Salient characteristics, for present purposes, include the
maintenance and administration by the state of an accident fund,
which is paid into the state treasury by employers pursuant to
annual assessments made by the Director of Labor and Industries,
through the Supervisor of Industrial Insurance. Except in
situations not presently material, [
Footnote 8] injured employees are deprived of common law
causes of action against their employers, and are restricted to
recovery from this fund as reparation for injuries sustained at
work.
Page 326 U. S. 300
The Director is empowered to promulgate, change, and revise
rates to be paid by employer contributors. The scheme for
determining the rates is somewhat complicated, requiring
classification of contributors and their work according to its
hazard, and adjustment of premiums to take account of the cost
experience not only of each class, but also of each employer, as
well as the condition of the fund. Rem.Rev.Stat.Wash. § 7676. A
basic premium rate, to apply for the ensuing calendar year, is
fixed annually for each class, which takes account of its cost
experience over a two-year period and of the condition of the class
fund. At the same time, a premium rate of each employer is fixed
with relation to each class, also to apply for the ensuing year,
which takes into consideration the employer's average cost
experience "for each workman hour reported by him during each
fiscal year . . . over the five-year period" immediately preceding
the determination. The actual premium rate the employer is required
to pay consists of 40 percent of the basic rate plus 60 percent of
his cost rate as thus determined, but in no event is the total rate
to exceed 160 percent of the basic rate.
Premiums, when paid, are placed to the credit of the employer in
the appropriate fund, but become the exclusive property of the
state earmarked and appropriated for the specific uses provided by
the statute. Rem.Rev.Stat.Wash. § 7676.
See State ex rel.
Trenholm v. Yelle, 174 Wash. 547, 550, 25 P.2d 569, 28 P.2d
1119. No provision is made for repayment or recovery of any
employer's contribution once it is paid in, regardless of whether
the full amount is required to compensate his or others' employees
for injuries sustained, and no such repayments are contemplated.
Awards are payable solely from the appropriate fund thus
accumulated, and payment is in no wise dependent upon the
employer's continued existence, operation, or contribution to the
fund. Nor, under the plan, can payment affect the rate of premium
for the year in which the award is allowed.
Page 326 U. S. 301
In view of these provisions and effects, the state Supreme Court
has declared that neither the employer nor the employee has a
vested right or interest in the fund; the moneys, when collected,
are public moneys, held and administered by the state, albeit
pursuant to the statutory purpose they constitute a "trust fund"
for the benefit of injured workmen and their dependents. [
Footnote 9] The fund is therefore in no
sense the private property of the employer. Consequently, the
payment of awards out of the fund, in itself, could not amount to a
deprivation of the employer's property. Indeed, appellant does not
urge that the application of moneys previously paid into the
payment of an award of itself works the claimed unconstitutional
result. Rather, this is said to arise from the effect the award and
its payment may have, by virtue of the statute's provisions
relating to cost experience in the fixing of rates, upon
appellant's liability for the payment of premiums in the future. It
is anticipated, not presently realized or immediate, financial
injury of which complaint is made.
As has been noted, in computing the rate of premium, the
Director is required to take into account not only the cost
experience of each class over a previous two-year period, but also
the average cost experience of each employer over the immediately
preceding five-year period, in addition to "the then condition of
each class and/or sub-class account." The quoted reference relates
to the requirements for the keeping of class accounts, in the
administration of the fund, for crediting of the payments
Page 326 U. S. 302
made by each employer to the appropriate accounts, and for the
charging of awards made to or on account of injuries to his
employees against his experience. Rem.Rev.Stat.Wash. § 7676. It is
this charge of which appellant complains, in the view, apparently,
that it necessarily will entail the payment of a higher premium in
years following the one in which the award is made, when the rate
computed as the statute requires will reflect inclusion of the
award in its cost experience. Accordingly, since it determines that
the charge will be made, the allowance of an award is said to be a
matter vitally affecting the employer's substantive liability, and
constitutes a final adjudication of that liability to the extent
that the charge may affect the future rate.
Moreover, the statute provides in its procedural phases for the
employer to have notice and the right to participate fully in the
determination. [
Footnote 10]
It must be taken that this right is conferred for the employer's
protection in the fixing of rates as they may be affected by the
allowance of awards through the inclusion of his cost experience as
a factor in rate computation. Especially in view of these
Page 326 U. S. 303
procedural protections, appellant urges that its substantive
liability, once it is terminated through barring of a claimant's
right to proceed by lapse of time, becomes an adjudicated matter,
substantive, not merely procedural or remedial in character, and
cannot therefore be revived consistently with the decision in the
Danzer case.
Were this all, and were the state of the record plain that the
allowance of the award necessarily would result in a later increase
of the premium, we would be confronted with the necessity of
determining whether such an increase would constitute the kind of
injury or detriment forbidden by the due process clause. A mere
increase in premium, under a compulsory and publicly administered
accident insurance plan, designed to operate at cost based upon
general and individual experience, rather than at an arbitrary
figure, [
Footnote 11] and
surrounded with adequate procedural safeguards against arbitrary
action, would not seem to be so obviously harsh or arbitrary in its
effect upon employers generally that it could be said without
question to be beyond the scope of the state's regulatory power or
in violation of the due process prohibition of the federal
Constitution.
But we are not faced with the necessity for deciding that
question. Although appellant's brief states that "the award will be
paid in large measure" by itself, it is not
Page 326 U. S. 304
asserted that this burden will result from any increase in
appellant's rate or, in fact, that any increase necessarily will
follow from allowance and payment of the award. On the contrary,
the statement seems obviously irrelevant or erroneous insofar as it
may be taken to imply that either of these consequences will
follow, since in no event can the award be paid out of the funds
collected from an increase produced wholly or in part by its
allowance. It is not until after the award has been allowed that it
can be charged to the employer's experience, or affect his rate of
contribution.
Moreover, if appellant is taken to argue that an increase will
result for the year or years following the award's allowance, the
record neither demonstrates this nor furnishes support for an
inference that such a result necessarily, or even probably, will
follow. As the Department points out, the payment, when made, may
be one factor in determining appellant's future rate. But the
record does not disclose what rate appellant has been paying. For
all that appears, this may be the maximum permitted by the statute,
in which event no injury, present or future, could result from
allowance and payment of the award. [
Footnote 12] Moreover, if it were assumed that the rate
was less than the maximum, whether or not an increase would result,
or, if so, whether it would be substantial, are questions wholly
speculative.
A variety of considerations makes them so. Appellant's
experience is but one factor in the computation. It affects only 60
percent of the actual rate. A single award is reflected in this
fraction only as it affects the five-year individual average. When
so reflected, the amount of resulting increase in that average and
in the fraction may be infinitesimal or insubstantial. The ultimate
effect upon
Page 326 U. S. 305
the actual rate will be watered down nearly by half through
inclusion of the 40 percent factor for class experience. Since the
condition of the fund also must be considered, this too may
minimize further the effect or, so far as appears, make an increase
entirely unnecessary. The record furnishes no evidence concerning
the condition of the fund, the class experience over the required
period, or the appellant's individual experience over the specified
five years. The amount of the award is small, $460.50.
In sum, all that the record discloses is that this amount will
be charged against the appellant's experience and taken into
account with other factors, as the statute requires, in the
computation for some future period, with possibly some increase
resulting in the rate. But, in the absence of all evidence showing
the facts concerning the other factors, it is entirely
problematical whether an increase will follow, or, if so, whether
it will be wholly mathematical and infinitesimal, or substantial in
its ultimate effect upon appellant. This being so, appellant's
complaint comes down, on the record, to nothing more than the bare
possibility of some injury in the future.
The Fourteenth Amendment, through the due process clause, does
not assure protection from the states' regulatory powers against
injuries so remote, contingent, and speculative. [
Footnote 13] Some substantial and more
immediate harm must be shown to present a justiciable question
concerning the state's power. The injury, as it appears from this
record, is neither so certain nor so substantial as to justify a
finding, upon that showing, that appellant's substantial rights
have been or will be invaded by allowance and payment of the
award.
Page 326 U. S. 306
Moreover, under the Act's procedural provisions, appellant has
at no time been free from this contingent liability, whether before
or after the 1941 amendment. For, although the 1927 amendment
precluded the employee from filing claim as of right after the
three-year period, it followed the original act in placing no limit
upon the time within which the Department, of its own motion, might
reopen the claim and increase, reduce or terminate the
compensation. [
Footnote 14]
Appellant therefore was at all times substantively liable to have
its premium rate increased by the allowance of an award for
aggravation, and the initial award, in consequence, was in no sense
res judicata against later imposition of this liability.
[
Footnote 15] Appellant's
contrary argument erroneously correlates its own liability to
pay
Page 326 U. S. 307
premiums, for purposes of applying the statute's bar, with the
employee's right formally to institute the proceedings (and to have
judicial review) for securing an award, and assumes that this
liability was terminated. [
Footnote 16]
It is true that the restoration, by the 1941 amendment, of the
employee's right of taking the initiative may have had practical
effects toward increasing the rates of premium, although none is
shown by this record with any certainty. But appellant is seeking
to have a state statute voided on the ground that it works a
substantial injury to its substantive rights by creating or
recreating a liability which had been extinguished by previously
applicable law. It thereby has undertaken to demonstrate not only
the injury and its substantial character, but, as part of that
burden, the extinction of the preexisting substantive liability.
This it has not done, and could not do, in view of the Department's
power to reopen the claim. It has succeeded only in showing that
one mode provided by the preexisting law for bringing the liability
into play had been terminated. It was this, and only this, which
the 1941 amendment revived. At the most, therefore, appellant's
injury, if it were otherwise more substantial, would consist in the
restoration of an alternative, if also possibly a more effective,
method for putting in motion the machinery provided for making an
award.
In our view, appellant has not made the showing of substantial
harm, actual or impending, to any legally protected interest which
is necessary to call in question the
Page 326 U. S. 308
statute's validity. [
Footnote
17] Accordingly, the appeal must be, and hereby is
Dismissed. [
Footnote
18]
MR. JUSTICE BLACK is of the opinion that the only practical
effect of the challenged state statute was to give to an injured
employee a right to judicial review of an administrative action,
that a contention that such a statute violates the Federal
Constitution is frivolous, and that the appeal should be dismissed
for that reason.
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.
[
Footnote 1]
The procedure for making claims before the Department of Labor
and Industries and for obtaining judicial review is sketched below
in
note 10 On the first
journey of the cause to the Supreme Court, the Department and the
Superior Court held that the claim was out of time, and that it
should be dismissed. After reversal of these rulings, the case was
returned to the Department for the making of an award, and its
order accomplishing this was affirmed by the Superior and Supreme
Courts as against appellant's constitutional objections urged here,
and others.
[
Footnote 2]
[
Footnote 3]
Washington's original Workmen's Compensation (or, more properly,
Industrial Insurance) Act was adopted in 1911, Laws of Wash.1911,
c. 74, Remington's Revised Statutes of Washington, § 7673
et
seq. For purposes material to the disposition of this cause,
the Act was amended in 1927 by placing a limit of three years from
specified dates upon the filing of claims by injured workmen for
aggravation of injuries, Laws of Wash.1927, c. 310, p. 844,
Rem.Rev.Stat.Wash.1932, § 7679(h), amending Laws of 1911, c. 74, §
5(h), and in 1941, effective December 3, 1942, by extending the
three-year period to five years. Laws of Wash.1941, c. 209, § 1,
Rem.Rev.Stat.Wash.1941 Perm.Supp. § 7679, amending subsection (h)
of the 1927 amendment.
[
Footnote 4]
See note 3
[
Footnote 5]
The provision, as amended in 1941, was as follows:
"If aggravation, diminution, or termination of disability takes
place or be discovered after the rate of compensation or
termination of disability takes place or shall have been
established or compensation terminated in any case, the Director of
Labor and Industries, through and by means of the Division of
Industrial Insurance, may, upon the application of the beneficiary,
made within five years after the establishment or termination
of such compensation, or upon his own motion, readjust for
further application the rate of compensation in accordance with the
rules in this section provided for the same, or in a proper case
terminate the payment:
Provided, Any such applicant whose
compensation has heretofore been established or terminated shall
have five (5) years from the taking effect of this act within which
to apply for such readjustment."
Laws of Wash.1941, c. 209, § 1, Rem.Rev.Stat.Wash.1941
Perm.Supp. § 7679(h). (Emphasis added.)
The 1927 amendment,
see note 3 was identical except for use of the word "three"
where "five" is employed. The original provision, in force from
1911 to 1927, was as follows:
"If
aggravation, diminution, or termination of
disability takes place or be discovered after the rate of
compensation shall have been established or compensation terminated
in any case,
the department may, upon the application of the
beneficiary or upon its own motion, readjust for future
application the rate of compensation in accordance with the rules
in this section provided for the same, or in a proper case
terminate the payments."
Laws of Wash.1911, c. 74, § 5(h). (Emphasis added.)
[
Footnote 6]
The original injury was incurred July 13, 1937. The original
award, of $307.50, for permanent partial disability of the right
hand, became "final,"
cf. note 2 March 9, 1938. The 1927 amendment,
see
notes
3 and |
3 and S. 295fn5|>5, was in force at that
time and until December 3, 1942, when the 1941 amendment became
effective. Rowley's claim for aggravation was not filed until March
19, 1943, more than five years from the time the original award was
"closed," but less than five years from the date the 1941
amendment, with the proviso, became effective.
[
Footnote 7]
Cf. note 18
[
Footnote 8]
E.g., the Act provides that an employer, defaulting in
his payment of premiums, shall be liable to suit by the injured
workman, as prior to 1911, but without specified defenses then
available. Rem.Rev.Stat.Wash. § 7676.
[
Footnote 9]
See the opinion of the court upon the first appeal in
this cause, 21 Wash. 2d 420, 427-429, 151 P.2d 440;
Mattson v.
Department of Labor, 176 Wash. 345, 347, 348, 29 P.2d 675,
aff'd, 293 U. S. 293 U.S.
151, holding that the 1927 amendment putting a limit of three years
to the employee's right to claim compensation as of right impaired
no vested right of the employee, whether of property or equal
protection under the Fourteenth Amendment or of contract under
Article I, § 10, of the Federal Constitution, and authorities
cited.
[
Footnote 10]
Report of accident and claim for compensation must be filed with
the appellee Department of Labor and Industries. If either the
claimant or the employer is aggrieved by any order, decision, or
award, he may petition for rehearing before the Joint Board of the
Department. If rehearing is granted, the board may receive
testimony. Appeal lies from the board's order to the Superior
Court, where the matter is triable
de novo, but upon the
record made before the board, and from the Superior Court's
judgment to the Supreme Court. Rem.Rev.Stat.Wash. § 7686; (1943
Perm.Supp.) § 7697.
No complaint is made that appellant did not have full benefit of
the Act's procedural protections.
Although the Act does not provide specifically for the employer
to contest the validity of an award at the time the Department is
fixing the rate for the ensuing year or when he is called upon to
pay that premium, it does not appear affirmatively that he may not
have remedy them under the general law of the state.
Cf.
Copperweld Steel Co. v. Industrial Commission, 324 U.
S. 780.
[
Footnote 11]
The original act, as adopted in 1911, provided for a uniform
rate of premium to be collected from all employers. Laws of Wash.,
1911, c. 74, § 4. The cost feature based upon experience was
introduced in 1931. Laws of Wash., 1931, c. 104, § 1.
The original act, with its feature of "uniform payment," was
held constitutional by this Court in
Mountain Timber Co. v.
Washington, 243 U. S. 219,
aff'g State v. Mountain Timber Co., 75 Wash. 581, 135 P.
645.
See also State ex rel. Davis-Smith Co. v. Clausen, 65
Wash. 156, 117 P. 1101. The "cost experience" amendment was said to
be valid in
State ex rel. Crabb v. Olinger, 196 Wash. 308,
82 P.2d 865,
overruled on another point in
St. Paul
& Tacoma Lumber Co. v. Department of Labor, 19 Wash. 2d
639, 649, 144 P.2d 250.
[
Footnote 12]
Except possibly upon the contingency, equally speculative upon
the record, that the maximum rate might be reduced in case the
charge resulting from the award were not made.
[
Footnote 13]
Cf. Mallinkerodt Chemical Works v. Missouri ex rel.
Jones, 238 U. S. 41,
238 U. S. 54;
Plymouth Coal Co. v. Pennsylvania, 232 U.
S. 531,
232 U. S.
544-545, and authorities cited.
Cf. also Castillo v.
McConnico, 168 U. S. 674,
168 U. S. 680;
Tyler v. Judges of the Court of Registration, 179 U.
S. 405;
Frothingham v. Mellon, 262 U.
S. 447,
262 U. S.
488.
[
Footnote 14]
[
Footnote 15]
It was exactly to prevent such rigid finality that the statute
preserved both the Department's unlimited power to reopen the case
and the employee's power to have it reopened as a matter of right
during the limited period. From the beginning, the Act seems to
have been drawn to avoid the crystalizing effects of the doctrine
of
res judicata in relation to awards, whether as against
the employer or the employee. The idea apparently was that the
initial award for an injury would afford compensation for harms
then apparent and proved. But it was recognized, on the one hand,
that all harmful consequences might not have become apparent at
that time, and, on the other, that harms then shown to exist might
later be terminated or minimized.
Cf. Choctaw Portland Cement
Co. v. Lamb, 79 Okl. 109, 110, 189 P. 750. The purpose of the
provisions for reopening, whether at the instance of the employer,
the employee, or the Department,
cf. notes
5 and |
5
and S. 295fn14|>14, obviously was to prevent the initial
award from finally cutting off power to take account of these later
frequent developments. It was to maintain a mobile system, capable
of adapting the amount of compensation from time to time in
accordance with the facts relating to the injurious consequences
for disability as they actually develop, not to cut off rigidly the
power either to increase or to decrease the compensation once an
award had become "final" for purposes of appeal.
[
Footnote 16]
Obviously the liability and the right were not coextensive in
duration, since the one continued after the other had been cut off.
They were lacking also in correlation of obligation, since the
employer was bound to pay the fund, not the employee, and the
latter recovered from the fund, not the employer. Right and
liability are usually correlative in a legal relation. But, in this
instance, the correlation, as appellant poses it, is lacking, for
two legal relations are involved, from each of which it seeks to
extract a correlative.
[
Footnote 17]
Cf. Mattson v. Department of Labor, 293 U.
S. 151.
[
Footnote 18]
Appellees have urged that the 1941 amendment did no more than
restore the right of judicial review, as to claims filed after the
three-year period, which, prior to 1927, had existed with reference
to all claims for aggravation without limitation as to time, and
therefore the amendment could be taken in no way to violate any
provision of the Constitution. It is true that the 1941 amendment
restored the employee's right of judicial review where previously
none had existed. But it accomplished more. It invested the
employee with the right to require the Department itself to proceed
where previously no such right existed. Whether or not this would
give cause for complaint, if the right were coupled with a more
substantial and less contingent injury than is shown to exist in
this case and with a previous total extinction of the employer's
liability need not be determined.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BURTON concurs.
We cannot agree that the injury to appellant is so remote and
speculative as to preclude it from attacking on constitutional
grounds the award in question. The award, whether small or great,
enters into the employer's cost experience, and the future premium
payable by the employer reflects in part any increase or decrease
in his cost experience. If the employer is not paying the maximum
rate, an increase in his cost experience will inevitably make
Page 326 U. S. 309
him pay a rate which would be lower but for the increase in his
cost experience. And if, perchance, he is already paying the
maximum rate, an increase in his cost experience will inevitably
hold him there longer or lessen any reduction to which he otherwise
would be entitled. The precise effect on future rates cannot, of
course, be presently ascertained. Nor could it be shown in any case
whether the award was $460 or $46,000. For the rates are fixed
annually, and, at the time of any one award, all of the elements
entering into the future computation will not be known. So, if this
employer is barred here because he can show no injury, he and all
other employers will be barred in every case.
* Yet we know from
the operation of the system that the cost experience of each
employer determines 60 percent of his future rate. Their respective
costs also affect to a lesser degree the basic premium rate
applicable to each employer's class, and 40 percent of that basic
rate is reflected in the actual premium rate paid by each employer
in that class. We might as well say that no employer could ever
challenge the constitutionality of an award under this system
because bankruptcy, fire, or some cataclysm might put him out of
business before a new rate is fixed.
On the merits, we think
Campbell v. Holt, 115 U.
S. 620, and
Chase Securities Corp. v.
Donaldson, 325 U. S. 304,
govern this case. At no time was the employee's claim for
aggravation extinguished. At all times the Department could have
reopened the claim and made an additional award. We therefore do
not reach the question of
Page 326 U. S. 310
the constitutionality of an act which makes it possible to
enlarge an award where previously there had been a final
adjudication of the claim.
Cf. Danzer & Co. v. Gulf &
Ship Island R. Co., 268 U. S. 633.
We would affirm the judgment.
* We are not advised that the employer can contest the validity
of a prior award at the time the Department of Labor and Industries
is fixing the premium rate to be paid into the fund for the ensuing
year. The pertinent statute (Rem.Rev.Stat. § 7676) does not
prescribe such a remedy and the decision of the Washington Supreme
Court in
Mud Bay Logging Co. v. Department of Labor and
Industries, 189 Wash. 285, 286, 64 P.2d 1054, would seem to
indicate that it is not contemplated.