"That the decision of the judge hearing the same shall be conclusive and binding between the parties, subject to the right of appeal in this act provided for."

word "appeal" in this statute intended the word "review," and that it should be done by the common-law writ of certiorari, the purpose and extent of which had been freThe only other provisions providing for a quently defined and set forth by the existing review or an appcal are expressions appear-decisions of this court and with which the ing later on in section 21 and in section 28, Legislature must be presumed to have been which will be later quoted and discussed. familiar. The last expression in section 21 is:

"From such decree any party aggrieved may by certiorari within thirty days thereafter appeal to the Supreme Court of Alabama."

tion 28 as follows:

"Provided that nothing herein contained shall be construed as limiting the jurisdiction of the Supreme Court or Court of Appeals to review questions of law by certiorari"

Alabama was among the last states to

adopt a Workmen's Compensation Law, which is in the nature of an insurance against injury, not self-inflicted, or due to drunkenness or willful misconduct of the employé. Had the right of appeal been given with- The compensation is fixed and uniform, and out saying that it should be done by cer- but few questions of law or disputed facts tiorari, there could be little doubt as to what should arise in the administration of same, the Legislature meant, and the judgments and the circuit judges who see and hear the and decrees under this act would be appeal-witnesses were supposed to be better triers able like other judgments and decrees of the of the facts than the appellate courts. It was circuit court. But, as the act requires that also contemplated that this law would be adit must be done by certiorari and within 30 ministered without the needless expense or days, and as the right to a common-law cer- delay usually accompanying personal injury tiorari and an appeal are inconsistent, the suits under the Employers' Liability Act former not being usually granted where there (Code 1907, § 3910), as a very simple mode of is a right of appeal, the legislative intent procedure is provided in case of a dispute, was evidently to provide or preserve a right and, unlike most of the states placing the to review exclusively by certiorari, and not administration and enforcement of same in by the unnatural and inharmonious proceed- the hands of an industrial board or coming of appealing by certiorari. This view is mission, composed generally of laymen, we confirmed by the further expression in sec- have placed the administration of ours with the circuit judges of the state, who are not only presumed to be learned in the law, but experienced triers of facts, but as a safeguard against an erroneous interpretation of this law by them the Legislature intended to -also by the further fact that, knowing that, merely reserve to this court its right under the jucrover against cree was appealable, section 140 of the Constitution to superine questi would be reviewable by bill of tend and control the judgments of inferior exceptions only, other than the record, they courts and to extend, by statute, the same required, by section 28, that the determina- right to the Court of Appeals as to all cases tion of the court shall be filed in writing with under this act which come within its juristhe clerk, and shall contain a statement of diction as to amount. Again, the Legislathe facts and conclusions as determined by ture provided for the administration of this said judge, thus extending the scope of the law by the circuit judges without the aid of record to the inclusion of said written state-a jury, except in the sole event that willful ment of the court so as to make it a part misconduct is set up as provided in section of the record for the review of legal ques-21, and realized that there would be no jutions apparent upon same. It is also mani- ries to be influenced or prejudiced by the fest that the Legislature did not mean an technical errors of accepting and rejecting ordinary appeal, or one by the statutory cer- certain portions of the evidence, and that the tiorari as now used to sometimes remove judges would probably consider only the macauses from a justice of the peace court to terial evidence going to the substance of the 'the circuit court, as these methods contem-claim or defense, and did not anticipate a plate a general review and include questions which must be reserved and presented to this court by a bill of exceptions. The Legislature limits the time to 30 days and makes no provision for a bill of exceptions within that time, and, under the general law, the "The supervisory power of a superior over aggrieved party has 90 days for presenting a an inferior legal tribunal by means of a combill of exceptions, and the trial judge has mon-law writ of certiorari extends only to 90 days after the presentation of same for questions touching the jurisdiction of the subordinate tribunal and the legality of its prosigning. It thus appears that the Legislaceedings. The appropriate office of the writ ture did not have in mind the review of ques-is to correct errors of law apparent on the face tions which could be properly presented only of the record. Conclusions of fact cannot be by a bill of exceptions, and in the use of the reviewed, unless specially authorized by stat

necessity for a review of these questions by providing the ordinary appeal with a bill of exceptions.

[1] It has been repeatedly held by this court that

(90 So.)

ute." Birmingham v. Sou. Bell Tel. Co., 203 Ala. 251, 82 South. 519; Postal Tel. Co. v. Minderhout, 195 Ala. 420, 71 South. 91, and cases there cited: Ex parte Dickens, 162 Ala. 272, 50 South. 218; Camden v. Block, 65 Ala. 239; Independent Pub. Co. v. American Press, 102 Ala. 475, 15 South. 947.

is expressly reserved by section 168 of the Constitution and its predecessors. Moreover, this defendant employer had the option of avoiding the Compensation Act, but, having elected to accept the same, is bound by its provisions and waived the right to invoke constitutional objections to same. Authori

Bradford, 20 per cent., which was in the teeth of section 7 of the Workmen's Compensation Act, which limits the amounts of attorney's fees to 10 per cent., and this ruling can find neither excuse or justification unless this provision of the statute is declared invalid. We find some suggestion in the brief

[2] We therefore hold that, in order to re-ties infra. view a judgment or decree of the circuit [5] The record discloses that the trial court under the Workmen's Compensation | court allowed counsel for the widow, Irene Act, the aggrieved party must within 30 days after the rendition of same apply to this court, or the Court of Appeals, as the case may be, for a common-low writ of certiorari, which application shall set forth the questions of law sought to be reviewed, and which must be apparent upon the recordthat is, the pleading or the filed conclusion of appellee's counsel that said section vioand statement of the judge as required by section 28 of the act-and the appellate court will consider what it deems questions of law as thus presented, and will not review the conclusion of the circuit judge when the same is supported by any of the evidence as set out by the judge or the reasonable tendencies of same, or in the application of the law to disputed facts. We will not, however, review the trial court as to objections to evidence, as these rulings do not pertain or belong to the record, as there is no provision for setting out same in the written statement or finding of the judge as required by section 28 of the act. Of course, cases may arise in the future when the line between what is a question of law and fact may be shadowy, and with which we will deal as the questions arise, but in order to review the same it must be a question of law apparent upon the record. This court also reserves unto itself and the justices thereof the inherent right to impose such reasonable terms or conditions as may be necessary to protect the successful party against a delay incident to the determination of the petition, as a condition precedent to an order of stay or suspension of the judgment of the trial court pending a consideration of the petition for certiorari.

lates certain provisions of the Constitution, but counsel, as well as the trial court, evidently overlooked the elective feature of the act both as to employer and employé and the well-established salutary rule that, having elected to operate under and abide by the act, the parties waived the right to raise constitutional objections to same. Sayles v. Foley, 38 R. I. 484, 96 Atl. 340, and cases there cited; Mathison v. Minneapolis R. R.. 126 Minn. 286, 148 N. W. 71, L. R. A. 1916D, 412; Sexton v. Newark Tel. Co., 84 N. J. Law, 85, 86 Atl. 451; Borgnis v. Falk, 147 Wis. 327, 133 N. W. 209, 37 L. R. A. (N. S.) 489; Deibeikis v. Link-Belt Co., 261 Ill. 454, 104 N. E. 211, Ann. Cas. 1915A, 241; State v. Creamer, 85 Ohio St. 349, 97 N. E. 602, 39 L. R. A. (N. S.) 694; In re Opinion of Justices, 209 Mass. 607, 96 N. E. 308. Indeed, laws similar to this one have been attacked upon every conceivable ground as invading constitutional provisions, federal and state, and have been upheld by the courts. Honnold's Workmen's Compensation, pp. 58 to 89; Arizona's Employers' Liability Cases, 250 U. S. 400, 39 Sup. Ct. 553, 63 L. Ed. 1058, 6 A. L. R. 1537; Middleton v. Texas Power Co., 249 U. S. 152, 39 Sup. Ct. 227, 63 L. Ed. 527; Mountain Timber Co. v. Washington, 243 U. S. 219, 37 Sup. Ct. 260, 61 L. Ed. [3, 4] An appeal to the Supreme Court or 685, Ann. Cas. 1917D, 642. Moreover, we do Court of Appeals is a part of the remedy sub- not mean to hold, if this act was mandatory ject to legislative control, and is not a vested instead of elective, that the state would not right. Theo. Poull Co. v. Foy-Hays Co., 159 have the right, under its police power, to Ala. 458, 48 South. 785. It would therefore regulate the attorney's fees under same. seem that the Legislature can limit, restrict, Boone v. State, 170 Ala. 57, 54 South. 109, or abolish the right of appeal so long as it Ann. Cas. 1912C, 1065, and cases there cited. does not attempt to restrict the right of this See, also, Senior v. State, 205 Ala. 337, 87 court to exercise its superintendence and con- South. 592, and cases there cited. trol over inferior tribunals under section 140 be conceded that in some cases the attorney's of the Constitution. Ex parte L. & N. R. R.. fee allowed by this act may be inadequate, 176 Ala. 631, 58 South. 315; Ex parte Can- and especially in the instant case, in view of dee, 48 Ala. 412; Ex parte Croom and May, the vigor, skill, and ability displayed by de19 Ala. 566. The cases of Ex parte Haugh- fendant's counsel to defeat the claim of the ton, 38 Ala. 570, and Tims v. State, 26 Ala. appellee both in this as well as the trial 165, dealt with statutes depriving parties of court and the energy, skill, and ability shown the right to appeal from the judgment of a by appellee's counsel in the prosecution of justice of the peace, and which said right the claim, but this is a question to be ad

It may

dressed to the legislative branch of the gov-| gives the right to the defendant or employer ernment, and the courts cannot, and should to make a lump sum settlement by depositing not, for this or any other reason, brush aside the amount, etc. a plain and unambiguous statutory provision, which is in no wise repugnant to the constitution.

[7] The minor, James Bradford, was not a party plaintiff to the original suit or petition, but was brought in as a claimant to a part of the fund upon the suggestion of the defendant, and we think, and so hold, that the trial court was authorized to appoint a guardian ad litem to represent him, though he should have been represented by next friend had he been an original plaintiff or petitioner, and in such event the court could have authorized the attorney's fees as provided by section 7 of the act, and we think that the spirit of the law authorizes the fee allowed the guardian ad litem, and which as to amount seems to be within the limitation fixed by said section 7. The order of payment, however, contains the same vice as the one providing for the payment of the attorneys of Irene Bradford, and must, to this extent, be corrected.

The appeal is dismissed, but the writ of certiorari is awarded, and the judgment or decree of the circuit court as to the fixation of the amount of attorney's fees to counsel for Irene Bradford, as well as the manner

ner in which the guardian ad litem's fees are to be paid, is reversed, and the cause is remanded to the circuit court in order that the fees may be fixed and the order of payment directed so as to conform with this opinion. The cost of the procedure in this court, including the transcripts, both upon appeal and certiorari, is to be paid 50 per cent. by the appellant or petitioner, 33% per cent. by Irene Bradford, and 16% per cent. by James Bradford.

[6] We also question the authority of the trial court in requiring this defendant to pay the attorney's fees in solido by advancing the same and looking to the last periodical payments plus 6 per cent. interest for reimbursement. It must be observed that, while section 7 of the act authorizes the judge to fix the fee not to exceed 10 per cent. and the "manner of its payment," this does not justify what was done in the instant case, but simply means that upon a bulk sum settlement or commutation he can direct the payment of the attorney's fees in full, or under the periodical payments the same may be applied in whole or in part to the said fees until extinguished. These words do not authorize the judge to make the employer, in effect, an insurer against the death or remarriage of a dependent widow before the maturity of the last payment, or the death or termination of the dependency of the child before the maturity of said last payments, and which would be the result by requiring of the payment of same, also, as to the manthe employer to pay these fees in advance and look to the last periodical payments for reimbursement. Nor was the trial court justified in directing the payment of the fees in this manner, under its power given by the act to direct a commutation or lump sum settlement or payment "in whole or in part." Section 23 of the act governs lump sum payments either upon settlement between the parties and approved by the court or of judgments procured by suit, in the event the parties did not agree upon a settlement, and authorizes a commutation to one or more lump sum payments by agreement of the parties, except as to claims for death, for permanent disability, or permanent or partial disability, for total loss of earnings, or for the loss of an arm or a hand or a foot or a leg or an eye, or of more than one of such members. As to the foregoing excepted claims, "these may be commuted only with the consent of the court," meaning that as to all claims other than the above-excepted class the payments may be commuted by agreement of the parties without the consent of the court, and that the excepted class may be commuted by agreement of the parties with the consent of the circuit court. State v. District Court, 134 Minn. 16, 158 N. W. 713, L. R. A. 1916F, 957. This being a death claim, it could not be commuted, in whole or in part, by the trial court without the consent of the parties, which includes the employer as well as the dependents. Sections 24 and 25 have no application to the question here involved; as section 24 applies to a modification of set

[8] As this is the pioneer case presenting the right, scope, and extent of reviewing judgments or decrees under the Workmen's Compensation Act, and as we have decided the only questions of law properly presented for review under the interpretation given the statute, we could here conclude this opinion. But, out of deference to counsel, and which may be of some little consolation to them, we have examined and considered the other questions pressed and argued, and find no reversible error among them, even if an appeal would lie or the scope of review exceeded the limits fixed in this opinion. We agree with counsel for the petitioner that, as the decree of divorce to Jim Bradford from his first wife was not rendered until after his marriage under a license to Irene, said statutory marriage with Irene was void. But there was an abundance of evidence justifying the trial court in holding that there was a common-law marriage existing between Irene and Jim at the time of his death. They continued to live together as man and wife after the divorce and so held themselves out

(90 So.)

found at least an implied contract of mar- Workmen's Compensation Act of 1919, §§ 21, riage between them. 28, review is confined to questions of law 2pparent upon the record, which includes the written statement of the trial judge, and the reviewing court may not look to a bill of exceptions which accompanies the petition. 2. Master and servant 361-Pieceworker cutting trees held an "employé" entitled to disability compensation based on "wages" and "weekly earnings."

[9, 10] We are also of the opinion that the Workmen's Compensation Act, in the use of the words "husband and wife," as well as "marriage," included common-law marriages as well as statutory ones, as such marriages have for all times been recognized in this state. Nor did the variance between the given name of the first wife, described as "Leona" by the witnesses, and as "Lorana” in down trees and cut them into logs suitable for One employed by a lumber company to saw the decree, preclude the trial court from manufacture of lumber and paid for his labor holding that the deceased had been lawfully at the rate of 10 to 20 cents per tree accorddivorced from the woman with whom he for- ing to size, amounting to $18 to $20 per week, merly lived as his wife and described by included in the company's biweekly pay roll, the witnesses as "Leona." The trial court held an "employé" within the statutory deficould have inferred from the evidence that nition of the term and the terms "wages" and the witnesses and decree referred to the same Act of 1919, § 36, regardless of the question of "weekly earnings" in Workmen's Compensation woman, and that the witnesses knew her as control and supervision of the work. "Leona," and that her real name was "Lorana" as described in the divorce proceedings, and Phrases, First and Second Series, Em[Ed. Note.-For other definitions, see Words especially in the absence of proof that deployé; Wages.] ceased ever had but one wife before he married Irene, or ever lived with, as man and wife, two separate women, "Leona" and ty; A. E. Gamble, Judge. "Lorana."

Appeal from Circuit Court, Butler Coun

Petition by the W. T. Smith Lumber Comreview the action of the circuit court of Butler county in a proceeding by H. H. Burkett to recover from said Lumber Company under the Workmen's Compensation Act for damages for the death of plaintiff's son. Writ denied.

There was also sufficient evidence to jus-pany for a common-law writ of certiorari to tify the trial court in finding that the minor, James Bradford, was the lawful son of the deceased employé. Moreover, it may be questionable if this defendant, after suggesting said minor as a claimant, can complain of the ruling of the trial court in an adjudication between him and rival claimants to the fund.

The rulings of the trial court upon the admission and rejection of evidence was either without error or free from prejudice results,

if error was committed.

Since the Legislature has confined the right of review to questions of law apparent upon the record, trial courts cannot be too cautious in considering and determining cases arising under this act, and should literally comply with section 28 of the same as to filing with the clerk their determination, containing a statement of the law and facts in order that an aggrieved party may be afforded the proper means of such a review as is contemplated by the statute.

Appeal dismissed. Writ of certiorari awarded and reversed and remanded.

The facts as stated by the court are that J. Lewis Burkett was a minor under 21 years of age and unmarried, and that he left surviving him only parent, his father, who is the plaintiff in this case; that he was employed by the W. T. Smith Lumber Company another sawyer, to saw down the pine trees in the fall of 1919, and it was his duty, with

suitable for lumber on the lands of the de

fendant and to cut them into logs suitable for manufacture into lumber, and that, while engaged in this employment, the said J. L. Burkett sawed down a pine tree, which in falling caught upon another tree and from there fell, striking and injuring J. L. Burkett so that he died within a short time. For such labor he was paid from 10 to 20 cents per tree according to its size, and received from $18 to $20 per week, and of.

SAYRE, GARDNER, and MILLER, JJ., this amount he contributed to his father

concur.

Ex parte W. T. SMITH LUMBER CO. (3 Div. 507.)

(Supreme Court of Alabama. Oct. 20, 1921.) 1. Master and servant 412-Compensation judgment reviewable on record on certiorari without bill of exceptions.

On a petition to review a judgment by a common-law writ of certiorari as provided by

from $14 to $16 a week; that defendant was a corporation engaged in the manufacture of lumber, employed a large number of men, operated railroads into the forest, had trees sawn and cut and conveyed by rail to its mills, and defendant had a regular pay roll and paid off regularly every two weeks.

Steiner, Crum & Weil, of Montgomery, and Lane & Lane, of Greenville, for appellant. Powell & Hamilton and H. H. Burkett, all of Greenville, for appellee.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ANDERSON, C. J. [1] This petitioner all persons not excluded by section 8 who is seeks to review the judgment of the circuit employed by another to perform service for court by the common-law writ of certiorari hire and to whom wages are directly paid as provided by sections 21 and 28 of the this deceased would doubtless come withWorkmen's Compensation Act of 1919, pp. in the influence of the act regardless of the 206 to 239. question of control and supervision.

This act was largely borrowed from the

state of Minnesota, and in the case of State ex rel. Virginia Co. v. District Court of St. Louis Co., 128 Minn. 43, 150 N. W. 211, decided prior to the adoption of the present act, while the Minnesota court deemed it unnecessary to construe the above-quoted provision, it did hold that the same was not intended to confine the relation of employer and employé within narrower limits than the rule heretofore existing. It was also held that, notwithstanding there was no evi

dence that the defendant reserved no control or supervision over the workmen except the inference arising from the character of the work, the question was one for the jury unless it appeared conclusively that the right to control and supervise the work was not reserved. We therefore hold that the facts as set forth by the trial judge are sufficient to justify his finding that the deceased was an employé of the defendant even under the old rule as to control and supervision over him and the work.

On the other hand, if we give the abovequoted provision a broader construction and hold that an employé under the act includes