ments to its plant and facilities, as more fully set out in four detailed statements attached to the amended application herein and marked Exhibits "A", "B", "C" and "D", which said exhibits hereby are made parts of this order by reference. It is further

ORDERED, That applicant make verified report to this Commission, within fifteen days after the close of each calendar quarter, of the issue and disposition of said capital stock, the expenditure of the proceeds of so much thereof as is sold and of the cancellation and destruction of its said stock issue of October, 1911, such reports to be made until all of the stock herein authorized has been issued and disposed of and the proceeds thereof expended, and all of said stock issue of October, 1911, cancelled and destroyed pursuant to the terms and conditions of this order.

No. 484-In the Matter of the Application of The Defiance Gas and Electric Company to Issue Stocks and Bonds. Order Modified.

(Dated March 9, 1916.)

This day this matter came on for further consideration in respect to so much of the order, made and entered herein on the tenth day of May, 1915, as authorized the issue of applicant's first mortgage, five per cent. gold bonds of the principal sum of seventy thousand dollars, the proceeds to be used to pay the purchase price for certain property, the acquisition of which was authorized by order, duly made and entered in the proceeding before this commission, No. 479, and the commission being fully advised in the premises, it is

ORDERED, That so much of the order, made and entered herein on the tenth day of May, 1915, as authorized applicant to issue its first mortgage, five per cent. gold bonds of the principal sum of Seventy Thousand ($70,000.00) dollars, the proceeds to be used to pay the purchase price for the property authorized to be acquired by applicant under authority of the order, made and entered in the proceeding entitled, "In the matter of the joint application of The Defiance Gas and Electric Company and The Auglaize Power Company for purchase and sale of property," No. 479, be and it hereby is revoked and rescinded. It is further

ORDERED, That said order be, and it hereby is modified and amended in part, to read as follows, to-wit:

"It is further

"ORDERED, That the excess of the total of four hundred and

nineteen thousand dollars ($419,000.00) of the bonds of said The Defiance Gas and Electric Company over and above the sum of two hundred and ninety-seven thousand, six hundred dollars ($297,600.00), the amount of capital stock of said The Defiance Gas and Electric Company, and the issue and disposition of such excess in the manner and on the terms hereinbefore provided be, and the same hereby are approved, consented to and authorized."

It is further

ORDERED, That said petition, insofar as it asks consent and authority to issue said bonds of the principal sum of seventy thousand dollars be, and it hereby is dismissed.

745-The Henry Burkhardt Packing Company, Complainant, Versus American Express Company, Defendant. Dismissed.

(Dated March 3, 1916.)

It appearing from state by the complaintant that satisfaction. of this cause has been afforded by the defendant, the same hereby is dismissed.

This proceeding, instituted under Sec. 579-80, G. C., sought an award of reparation in the sum of $4.22, the value of a shipment of fresh meat consigned at Dayton to a local meat dealer at Bainbridge. It was receipted for at 5:10 a. m. July 17, 1914, and arrived at destination at 8:30 p. m. same date. Instead of immediately delivering the shipment, defendant permitted it to remain in a box car until the next morning when consignee refused to accept it on account it on account of visible damage, and the meat was sent to the dump. As the entry discloses, the defendant paid the claim after the institution of this proceeding, although it had previously refused the same when presented directly by the claimant.

CALENDAR

March 27

1:30 p. m.-Demurrer in complaint of D. T. & I. Ry. Co. vs. Pennsylvania Company.

March 28

9:00 a. m.-Pomeroy Salt Association Company et al vs. Hocking Valley Railway Company.

March 29

9:00 a. m.-Hearing of Investigation and Suspension docket No. 6, regarding rates on drain tile.

INDUSTRIAL COMMISSION

IN RE. LIVINGSTON. NO. 55221.

1. Witness fees and mileage under the Workmen's Compensation Act. -When and to whom paid. Section 13 of the workmen's compensation act of 1911 (102 O. L., 524, G. C. 1465-49) requires the payment of mileage and witness fees to witnesses who appear, in obedience to subpoenas, either before the industrial commission of Ohio or any of its deputies, when such subpoenas are issued and such attendance secured at the instance of the commission. ?

2. Witnesses subpoenaed at instance of claimants-Not entitled to fees unless testimony material. Witnesses subpoenaed by a claimant for compensation are not entitled to fees and mileage for attendance before the industrial commission of Ohio or any of its deputies unless the commission certifies that the testimony given by them was material to the matter investigated.

3. Claimants for compensation not witnesses. Claimants for compensation are not entitled to witness fees and mileage for attending hearings of their claims before the industrial commission of Ohio, or for appearance before its medical examiner for physical examination.

(Decided February 21, 1916.)

Yaple, Chairman: Eliot, Commissioner, concurs.

This claim was heard by the commission on November 17, 1914, when it was disallowed on the ground that the proof did not establish the fact that claimant's disability was caused by an injury sustained in the course of employment.

Claimant appealed from the decision of the commission to the court of common pleas of Licking county and after perfecting his appeal his action was dismissed upon his own motion.

The claim is again presented to the commission for consideration, the sole question being as to whether the claimant is entitled to receive mileage and witness fees for attending the hearing of his claim before the commission and for appearing before our medical section of the division of claims for a physical examination prior to the hearing of his claim by this commission.

Section 13 of the workmen's compensation act of 1911 (102 O. L., 524, G. C. 1465-49), which is still in full force and effect, is as follows:

"Each officer who serves such subpoena shall receive the same fees as a sheriff, and each witness who appears, in obedience to a subpoena, before the board or an inspector or examiner, shall receive for his attendance the fees and mileage provided for witnesses in civil cases in courts of common pleas, which shall be audited and paid from the state treasury in the same manner as other expenses are audited and paid, upon the

presentation of proper vouchers approved by any two members of the board. No witness subpoenoed at the instance of a party other than the board or an inspector shall be entitled to compensation from the state treasury unless he board shall certify that his testimony was material to the matter investigated."

The question for us to determine is whether the section above quoted authorizes the payment of witness fees and mileage to a claimant for compensation. Our construction of the section is that it requires the payment of mileage and witness fees to witnesses who appear in obedience to subpoenas, either before the commission or any of its deputies, where such subpoenas are issued and such attendance secured at the instance of the commission; and, that where witnesses are subpoenaed by a claimant that such witnesses are not entitled to fees and mileage unless the commission certifies that the tesimony given by them was "material to the matter investigated."

The record discloses that the claimant appeared before the commission at its office in the city of Columbus to attend the hearing of his claim, in response to a formal notice that is sent to all claimants, giving the date and hour of the hearing. He was not required by the commission to be present at the hearing and we think it clear that as to this attendance the claimant is not entitled to mileage and fees.

On another occasion the claimant appeared before the medical section of our division of claims for a physical examination. This appearance was made in response to a letter written to claimant by the chief medical examiner, no formal subpoena having been issued. The chief medical examiner examined the claimant and upon his report, which was to the effect that claimant's disability was not the result of an "injury" within the meaning of the workmen's compensation act, the claim was disallowed. There is no doubt that the appearance of the claimant in response to the written request of the medical section of the division of claims and the examination of claimant by the chief medical examiner enabled the commission to arrive at its decision. Strictly speaking, his appearance for examination was not "testimony" but it was "material to the matter investigated." If, then, we give a liberal construction to the word "testimony" as it is used in the above quoted section, the question is: "Is a claimant who responds to a request to appear before the medical section of the division of claims for a physical examination entitled to the mile

age and fees provided for witnesses?" We think not. The section referred to provides for the payment of fees and mileage to "witnesses" who appear before the commission or its duly authorized deputies in response to a subpoena. The language is clear and we think that such fees are to be paid to witnesses and to witnesses only; and, that it was not intended by the statute that claimants should receive such fees and mileage whether when atending the hearing of their claims or when appearing for the purpose of physical examination. Therefore, the claim for witness fees and mileage is denied.