William Forman, for Petitioner.
W. W. Griffin, for Respondent.
By the Court, Norcross, C. J.:
This is an original proceeding in mandamus. Paragraph 1 of the petition alleges the creation of respondent, Nevada Industrial Commission, under and by virtue of the provisions of section 8 of that certain act of the legislature entitled An act relating to the compensation of injured workmen in the industries of this state and the compensation to their dependents where such injuries result in death, creating an Industrial Insurance Commission, providing for the creation and disbursement of funds for the compensation and care of workmen injured in the course of employment, and defining and regulating the liability of employers to their employees, and repealing all acts and parts of acts in conflict with this act, approved March 15, 1913 (Stats. 1913, p. 137), as amended March 22, 1915 (Stats. 1915, pp. 279, 282).
Paragraph 2 of said petition alleges that from the 6th day of July to the 24th day of September, 1915, inclusive, petitioner was employed by one M. E. McGhan as an engineer and millman in the operation of a quartz-mill near the town of Round Mountain in Nye County, and that during that time the relation of employer and employee existed between petitioner and said McGhan.
Paragraph 3 of said petition alleges that on the 24th day of September, 1915, while petitioner was so employed, he was accidentally injured in the machinery of said mill, resulting in the loss of the first, second, and third fingers of his right hand.
Paragraph 4 of said petitioner alleges that as a result of said injury petitioner was totally disabled from performing any labor or service whatever for the period of three and seven-thirtieths months, and suffered permanent partial disability as above mentioned; that under and by virtue of the provisions of the aforesaid act, petitioner is entitled to compensation from the respondent in the sum of $1,454.
Paragraph 5 of said petition alleges that petitioner has complied with all the provisions of said act; that neither
he nor his said employer have ever rejected the provisions of said act; that prior to said injury of petitioner, petitioner's said employer had never paid to respondent any amount whatever, as is required under the provisions of said act from employers not rejecting the terms of said act, nor had any demand ever been made of such employer for such payment by respondent. That the respondent refused, and will continue to refuse, to pay petitioner said claim solely because petitioner's employer had not contributed to the state insurance fund provided for in said act.
Paragraph 6 of the petition alleges that it was and is the duty of respondent under and by virtue of said act to award and pay petitioner the amount of said claim.
Paragraph 7 of the petition alleges that petitioner has no plain, speedy, or adequate remedy at law.
To the petition a demurrer was filed alleging:
That said petition does not state a cause of action in favor of petitioner and against respondent, nor does it state facts sufficient to entitle the petitioner to the relief prayed for therein.
This proceeding was submitted upon the briefs filed. It was assumed by the briefs, both upon the part of petitioner and respondent, that mandamus was the proper remedy in this case. Upon reading the petition, the court was of the opinion that a serious question was presented as to what was petitioner's remedy upon the facts alleged, and an order was made vacating the submission and directing counsel to present the question as to whether mandamus was an appropriate remedy. ...