where it is on a matter not within the tribunal's jurisdiction,51 or is based solely on hearsay, or other improper or wholly insuffi

upon an ultimate fact found, such as that of death by violence, the Supreme Court on review may determine whether the evidence is sufficient to justify the finding of death, and may nullify the award where it is not sustained. Western Grain & Sugar Products Co. v. Pillsbury (Cal.) 159 Pac. 423.

When the finding and award of the Commissioner appealed from are unauthorized in law, irregular, or informal, or based upon a misconception of the law, or of the powers or duties of the administrative tribunal, or are so unreasonable as to justify judicial interference, the award may be set aside. Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245; Norton v. Shore Line Electric R. Co., 84 Conn. 24, 35, 78 Atl. 587. In Benoit v. Bushnell, 1 Conn. Comp. Dec. 172 (superior court reversing the Commissioner), it was held that, where the evidence showed that the claimant did not see a doctor for a week after the injury, and the defendant, though knowing of the injury, did not know that it was claimed to have been received in his employment, and no claim for compensation was made for three months, a finding that he had actual knowledge, and was not prejudiced by lack of notice, is not sustained by the evidence, and will be set aside on appeal.

Where there are no facts and the decision of the Commission is arbitrarily unfair and unreasonable, a question of law arises, and the court may right the wrong. Rhyner v. Hueber Bldg. Co., 171 App. Div. 56, 156 N. Y. Supp. 903. Where the Commission's findings are without evidence, and in direct conflict with the undisputed facts and all reasonable inferences which may be drawn from them, its determination may be reversed as an error of law. Gardoner v. Horseheads Const. Co., 171 App. Div. 66, 156 N. Y. Supp. 899. The rule in certiorari cases is that, if in any reasonable view of the evidence it will support the conclusion arrived at, such conclusion will not be disturbed for want of support in the evidence. If, however, the findings have no support in the testimony, there was no jurisdiction to make them. International Harvester Co. v. Indus. Com., 157 Wis. 167, 147 N. W. 53, Ann. Cas. 1916B, 330; State ex rel. v. Willcuts, 143 Wis. 449, 453, 128 N. W. 97; State ex rel. v. Losby, 115 Wis. 57, 90 N. W. 188; State ex rel. v. Fisher, 129 Wis. 57, 108 N. W. 206; Milwaukee Western Fuel Co. v. Indus. Com., 159 Wis. 635, 150 N. W. 998.

The action of the Commission is final and irreviewable, except as to matter "going to the basis of the claimant's right." (Code, c. 15p, § 43 [ser. sec.

51 A decision is conclusive only when it is within the Board's jurisdiction. Uphoff v. Indus. Board of Ill., 271 Ill. 312, 111 N. E. 128. In the absence of proof that the Accident Board had jurisdiction to make the award, an order of such Board confirming an award of the Arbitration Committee will be set aside. Shevchenko v. Detroit United Ry. (Mich.) 155 N. W. 423.

cient evidence; 52 but an admission of incompetent evidence will not operate to reverse an award, if there is any basis in the com

699].) As to such matters, its function is administrative, only quasi judicial, and the supervisory power of this court over its action, respecting the right of the claimant, is under its original jurisdiction by mandamus. Poccardi v. Public Service Com., 75 W. Va. 542, 84 S. E. 242, L. R. A. 1916A, 299; De Constantin v. Pub. Ser. Com., 75 W. Va. 32, 83 S. E. 88, L. R. A. 1916A, 329. In this respect, the West Virginia statute accords with the British Compensation Act, and those of several states limiting the power of review to questions of law. Gane v. Colliery Co., 2 B. W. C. C. 42; Turner v. Bell & Sons, 4 B. W. C. C. 63; Moss & Co. v. Akers, 4 B. W. C. C. 294; Ill. Act (Hurd's Rev. St. 1913, c. 48) § 19; Iowa Act (Acts 35th Gen. Assem. c. 147) § 34; Mass. Act (St. 1911, c. 751) pt. 3, §§ 10, 11; Mich. Act (Pub. Acts Extra Sess. 1912, No. 10) pt. 3, §§ 11, 12, 13; Minn. Act (Gen. St. 1913, §§ 8216, 8225) §§ 22, 30.

"In a number of states of the Union, under the provisions of statutes somewhat similar to our own, the determination of questions of fact is referred to certain Boards or Commissions, created by said statutes. These boards have different titles in different states, viz., a Board of Award, Industrial Accident Board, Board of Arbitration, Committee of Arbitration, and other names. The provisions are also somewhat common in these statutes that findings of fact by such a Board shall be final, and that, upon appeal, a review of the proceedings of such Boards shall be limited to questions of law. In the construction of these statutory provisions, courts of last resort in the various states have generally held that a finding of fact, although declared conclusive by the statute, will not be upheld, if there is no evidence to support it. Under the Rhode Island Act it is contemplated that the decision of the justice of the superior court and the decree of that court shall be based upon evidence, and not arbitrarily made. If the record discloses that a finding of fact is entirely without legal evidence tending to support it, such finding amounts to an error of law, and will be reviewed by this court upon appeal and set aside." Jillson v. Ross (R. I.) 94 Atl. 717.

52 An award cannot stand, if a finding of a jurisdictional fact is without any support, except that of hearsay testimony. Employers' Assur. Corp., Ltd., v. Cal. Indus. Acc. Com., 2 Cal. I. A. C. Dec. 452, 170 Cal. 800, 151 Pac. 424. The decision of the arbitrators and of the Industrial Board must be sustained by some competent evidence. Where it is founded on hearsay, or other improper or insufficient evidence, the circuit court should, on certiorari, remand the proceeding to the Industrial Board for proper proceeding. Victor Chemical Works v. Indus. Board of Ill. (1916) 274 Ill. 11, 113 N. E. 173. Where the order of the Industrial Accident Board is not authorized by the evidence, it will be reversed, and the case remanded for further hearing before the Board. Carpenter v. Detroit Forging Co. (1916, Mich.) 157 N. W.

53

petent evidence to support it. The court may usually examine and take into account the evidence adduced before a Commission as supplementing, illuminating, or explaining, though not as varying or contradicting, the findings of fact made by the Commission.5+ A probative fact found cannot prevail over the findings of ultimate facts, unless necessarily in conflict with such findings.5 But it is proper to consider whether the subordinate facts found by a Com

55

374. An award made by the deputy commissioner on hearsay and insufficient testimony of a flimsy character on the question of dependency will be set aside by the court. Tirre v. Bush Terminal Co., 172 App. Div. 386, 158 N. Y. Supp. 883.

53 First Nat. Bank v. Indus. Com., 161 Wis. 526, 154 N. W. 847; Andrzejewski v. Northwestern Fuel Co., 158 Wis. 170, 148 N. W. 37; Chicago & N. W. Ry. Co. v. Railroad Com., 156 Wis. 47, 145 N. W. 216, 974; Borgnis v. Falk Co., 147 Wis. 327, 133 N. W. 209, 38 L. R. A. (N. S.) 489; Milwaukee Coke & Gas Co. v. Indus. Com., 160 Wis. 247, 151 N. W. 245; Milwaukee Western Fuel Co. v. Indus. Com., 159 Wis. 635, 150 N. W. 998.

"We do not think, however, that under the language used in our Workmen's Compensation Act the decision of its administrative board must be in all cases reversed under the rule of presumptive prejudice, because of error in the admission of incompetent testimony, when, in the absence of fraud, there appears in the record a legal basis for its findings, which are made 'conclusive' by statute when said board acts within the scope of its authority." Fitzgerald v. Lozier Motor Co., 187 Mich. 660, 154 N. W. 67; Reck v. Whittlesberger, 181 Mich. 463, 148 N. W. 247, Ann. Cas. 1916C, 771.

In McGarva v. Hills, 1 Conn. Comp. Dec. 533, the superior court held, in affirming the award of the Commissioner, that an error in the admission of testimony cannot be a ground for setting aside an award; that it would not be set aside unless it was illegal or very unreasonable.

54 Gleisner v. Gross & Herbener, 170 App. Div. 37, 155 N. Y. Supp. 946. Though the Commission has certified the evidence taken before it, as well as its findings of fact therefrom, such evidence will be considered by the Supreme Court merely to supplement, explain, and illuminate, but not to contradict or vary, the Commission's findings of fact. The question of the correctness of the Commission's determination as to the applicability of the statute to the injury on which the claim is based remains in all cases a question for judicial scrutiny, in the light of the facts as found by the Commission. In re Rheinwald, 168 App. Div. 425, 153 N. Y. Supp. 598.

55 Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151 Pac. 398; People v. McCue, 150 Cal. 195, 88 Pac. 899.

missioner support the ultimate fact, as well as whether the ultimate fact supports the conclusion of law.50 Unless the facts in evidence are practically undisputed, an appellate tribunal cannot with fairness to the rights of the parties assume a finding of facts as made by the tribunal under review, when there is no finding of record of the tribunal of these facts.57 Where the evidence is not reported, it cannot be successfully contended that as a matter of law findings of fact were not warranted. 58 A decision that the injuries were not due to accident makes that question res judicata.59

Evidence that a workman returned to work, regained his health, and gave a release, authorizes an order that he had been fully compensated. The unexplained absence of the testimony of the physician who attended the deceased employé is not substantial evidence overcoming the statutory presumption favorable to the award."1

The positive duty resting on the Committee of Arbitration in Massachusetts to report all material testimony supplies the absence of an express statement in the bill of exceptions. And hence it was open to the insurer to argue that findings were not supported by the evidence, though the bill of exceptions contained no such statement.62

Where a city, as employer, stipulated that arbitration should be waived and the claim of a dependent be submitted to the Michigan

56 McGarva v. Hills, 1 Conn. Comp. Dec. 533.

57 Hartz v. Hartford Faience Co. (1916) 90 Conn. 539, 97 Atl. 1020.

58 In re Bentley, 217 Mass. 79, 104 N. E. 432; In re Septimo, 219 Mass. 430, 107 N. E. 63; In re Fisher, 220 Mass. 581, 108 N. E. 361.

59 (Wk. Comp. Act, § 20) Naud v. King Sewing Mach. Co. (1916) 95 Misc. Rep. 676, 159 N. Y. Supp. 910.

60 (Laws 1913, c. 599, § 2394-19) Oldenberg v. Indus. Com., 159 Wis. 333, 150 N. W. 444.

61 Sullivan v. Indus. Engineering Co., 158 N. Y. Supp. 970.

62 (St. 1911, pt. 3, § 7, as amended by St. 1912, c. 571, § 12) In re Brightman, 220 Mass. 17, 107 N. E. 527, L. R. A. 1916A, 321.

Industrial Accident Board, and the claimant's divorced husband appeared and denied her right to an award, the claimant proceeded on the theory that a hearing should be had before the Board questioning whether the parties were bound by the stipulation, claimant could not urge, on certiorari to review the Board's award, that the hearing before the Board was violative of the stipulation.03

Under the express provisions of the Illinois Act, the circuit court at any time has power on application to make its judgment conform to any modification required by any subsequent proceedings for review, and hence an order of the circuit court that it "retained jurisdiction for the purpose of enforcing this judgment and in accordance with the statute" was unnecessary, but harmless.** Where an application is made for judgment on the Industrial Board's award, and no attempt has been made to review the Board's findings, the circuit court has no jurisdiction to inquire into the legality of the Board's action, but is authorized only to enter judgment on the award."5

As said in a recent Connecticut case, the power of the superior court in the correction of the finding of the compensation commissioner is analogous to, and its method of correcting the finding similar to, the power and method of the Supreme Court of Errors in correcting the finding of the superior court. The finding of the superior court on an appeal from an award of the Commissioner, unless it corrects the finding of the Commissioner, should merely, in its finding, make that finding a part of its record, without refinding the facts, or making them the findings of fact for the purpose of appeal. If the trial court corrects the finding, it should indicate in

63 (Pub. Acts Extra Sess. 1912, No. 10) Vereeke v. City of Grand Rapids, 184 Mich. 474, 151 N. W. 723.

64 Armour & Co. v. Indus. Board of Ill. (1916) 273 Ill. 590, 113 N. E. 138. 65 Pitt v. Central Illinois Public Service Co. (1916) 273 Ill. 617, 113 N. E.