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Claims Arising For Injuries of Public Employes Under the Work

men's Compensation Act are to be paid Out of General State Insurance Fund for Public Employes Without Regard to Credit Standing to Any Taxing Subdivision—The Statutory Assessment for Protection of Public Employes is to be Arrived at by Making a Charge of One Per Centum of Amount Expended for Services of Persons Employed by State, Counties, Cities, Townships, Villages, School Districts or Other Taxing Districts Therein, Except in Municipalities Maintaining Police or Firemen's Pension Funds. In Collecting Such Assessment the State in the First Instance and the Counties in the Second Instance are to be Regarded as Units—(Sections 1465-63 and 1465-65, General Code.)

No. 1142—(Opinion Dated January 3, 1916.) Honorable A. V. Donahey, Auditor of State, Columbus, Ohio.

Dear Sir:-Permit me to reply to your letter in which you submit certain questions relative to public employes under the Workmen's Compensation Act, which is as follows:

“We hereby request your opinion upon the following questions pertaining to public employes under the Workmen's Compensation Law, as enacted 103 0. L., 72, and the subsequent amendments thereto:

"1. Is the general fund which was created for the protection of public employes by the statutory assessment of one percentum of the money expended by the state and each taxing district therein to be considered the unit from which claims arising under said act are to be paid ?

“2. How is the statutory assessment of one percentum to be made ?

"3. Is the state, county, city, township, school district, each a separate unit so that when assessments are made and paid they are credited to each subdivision and when a subdivision exhausts its credits under this act is a further assessment required only against the subdivision exhausting its credit?”

With your letter you submit a communication addressed to you by the Industrial Commission of Ohio, which, omitting the names of the counties and the taxing districts referred to therein, is as follows:

"In accordance with Section 18 of the Workmen's Compensation Act, as amended in 105 0. L., page 4, requiring that the industrial commission certify to the auditor of state certain information with reference to the counties contributing to the state insurance fund for public employes, please be advised as follows:

“I. The following counties have not made any contribution to the state insurance fund, as required by law, viz.:

"II. The following counties have omitted to include in their payments to the treasurer of state assessments from certain of their taxing districts, which are as follows: * *

"III. If the state insurance fund for the protection of public employes is to be considered as the unit, there is, in the judgment of the commission, sufficient money in said fund to pay all lawful claims likely to come against the same to and including December 31, 1916.

"IV. If the county is to be considered as the unit, we hereby certify that there is, in the judgment of the commission, sufficient money to the credit of each county within this fund to pay all lawful claims likely to come against each such county, to and including December 31, 1916, with the following exceptions. * *

"V. If the separate taxing district of the county is to be considered as the unit, we hereby certify that there is, in the judgment of the commission, sufficient money to the credit of each taxing district within such county to pay all lawful claims likely to come against each such taxing district, and including December 31, 1916, with the following exceptions

*

To your first question, which is as to whether the general fund which was created for the protection of public employes is a unit from which all claims for injuries or death of public employes arising under said act are to be paid, my answer is in the affirmative.

Coming to your second question, your attention is directed to the provisions of Section 1465-63 of the General Code (103 0. L., 77) which is as follows:

"The amount of money to be contributed by the state itself, and by each county, city, incorporated village, school district or other taxing district of the state shall be, unless otherwise provided by law, a sum equal to one percentum of the amount of money expended by the state and for each county, city, incorporated village, school district or other taxing district respectively during the next preceding fiscal year for the service of persons described in subdivision one of Section 14 hereof."

From a reading of the section quoted above it will be noted that the statutory assessment of one percentum which is made for the purpose of payment into the general state insurance fund for the purpose of compensating public employes injured in the course of their employment or to the dependents of public employes killed while in the course of their employment embraces a collection of one percentum of the amount expended by the state, counties and the taxing subdivisions of the county for the employes, as defined in Paragraph 1 of Section 1465-61 of the General Code (103 O. L., 77).

Replying to your third question, I prefer to deal with the fourth branch of the letter of the Industrial Commission of Ohio which you have just handed to me, and which is as follows:

"If the county is to be considered as the unit, we hereby certify that there is, in the judgment of the commission, sufficient money to the credit of each county within this fund to pay all lawful claims likely to come against each such county, to and including December 31, 1916.

Your attention is invited to the provisions of Section 1465-65 of the General Code, as amended, page 4 of 105 0. L., which is as follows:

"In the month of December of each year, the auditor of state shall prepare a list for each county of the state, showing the amount of money expended by each township, city, village, school district or other taxing district therein for the service of persons described in subdivision one of Section 14 hereof, during the fiscal year last preceding the time of preparing such lists and shall file a copy of each such list with the auditor of the county for which such list was made, and copies of all such lists with the treasurer of state. Such lists shall also show the amount of money due from the county itself, and from each city, township, village, school district, and other taxing district thereof, as its proper contribution to the state insurance fund, and the aggregate sum due from the county and such taxing districts located therein.

"Provided, however, that should the industrial commission of Ohio on or before the first day of December in any year certify to the auditor of state that sufficient money is in the state insurance fund to the credit of any county or counties to provide for the payment of compensation to the injured and to the dependents of killed employes of such county or counties and the several taxing districts therein for the ensuing year, the auditor of state shall not prepare and file with the county auditors and the treasurer of state said list or lists for such county or counties specified in such certificate; and it shall be the duty of the industrial commission of Ohio to make and file such certificate with the auditor of state whenever in its judgment there is sufficient money in the state insurance fund to the credit of any county or counties to provide for the probable disbursements required to be made to the injured and to the dependents of killed employes of such county or counties and the several taxing districts therein for the ensuing year.”

From a reading of this section it will be observed that for the purpose of the collection of the statutory assessment the county is to be regarded as the unit. All the dealings of the industrial commission acting through the auditor of state are with the county auditor representing the county, and under the provisions of the section just quoted it becomes the duty of the auditor of state, in the month of December each year, to prepare a list for each county of the state showing the amount of money expended by each township, city, village, school district or other taxing district therein for the service of persons described in subdivision one of Section Fourteen of the act during the fiscal year last preceding, unless, pursuant to the second paragraph of Section 1465-65 of the General Code, supra, the auditor is relieved from preparing the list referred to above for such counties as may be certified by the Industrial Commission of Ohio as having to their credit in the state insurance fund a sufficient sum to provide for the probable disbursements required to be made to injured and to the dependents of killed employes of such counties and the several taxing districts thereof in the ensuing year. In other words, the auditor of state is charged only with the making and sending of the list referred to in Section 1465-65 of the General Code, supra, to such county or counties as are not certified by the Industrial Commission as having a status of credit in the state insurance fund to relieve them from further payment.

It is generally understood that the purpose of the state insurance fund is to compensate injured employes or to care for the dependents of killed employes, and in the case of public employes such as are covered by the state insurance fund claims arising on account of such injuries or death presented to the Industrial Commission of Ohio would be considered and allowances made when justified, notwithstanding the fact that the particular counties or subdivisions do not have the required credit in the state insurance fund—the law providing that when such credit is depleted it shall be replenished by further assessment as provided for in Section 1465-65 of the General Code, supra.

Summing up, it is my opinion,

1. That all claims arising for injuries or death of public employes as comprehended by the act referred to are to be paid out of the general state insurance fund for public employes without re gard to the credit standing of any taxing subdivision.

2. The statutory assessment which makes up the fund is to be

arrived at by making a charge of one per cent of the amount expended for services of persons employed by the state, counties, cities, townships, incorporated villages, school districts or other taxing districts therein—this latter statement being subject to the exception of municipalities maintaining police or firemen's pension funds.

3. For the purpose of the collection of the statutory assessment the state in the first instance and the counties in the second instance are to be regarded as units without reference to the various taxing subdivisions of the county enumerated, except in so far as the information concerning such taxing subdivisions is cubmitted to the county auditor by the auditor of state for the purpose of enabling the county auditor to make the necessary and proper settlements with the taxing subdivision after drawing his warrant for the payment of the county's assessment to the state insurance fund.

4. At all events any just claims arising from the death or injuries to public employes in the course of their employment are to be cared for out of the general state insurance fund for public employes regardless of the fact that the credit of the particular subdivision may at the time be depleted, it being especially provided that such credit shall be replenished by subsequent assessments.

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