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Show MONDAY, DECEMBER "ZUI97Ti INTERMOUNTAIN COMMERCIAL RECORD PAGE FOURTEEN In The Supreme Court of The State of Utah which give the Commission continuing powers and jurisdiction and changes with respect to former findings, or orders make modifications to with respect thereto, as in its opinion may be justified. The Occupational Disease Act does not include a similar provision. tion Kennecott Copper Corporation, Plaintiff, No. 13676 v. FILED We conclude that the award for burial expenses is barred by the proUtah Code Annotated 1953, and the same is hereby visions of Section November 261974 The Industrial Commission Of Utah and Irene W. Peay, widow 35-1-- 78 35-2-- set aside. of Justin W. Peay, deceased, Allan E. Mecham, Clerk Defendants. 13, costs awarded. No WE CONCUR: TUCKETT, Justice: E. R. Callister, This is an original proceeding in this court to review an award of the Industrial Commission to Irene W. Peay' for the burial expenses of her late husband. Justin W. Peay worked at the Arthur Plant of the Kennecott Corporation from March 1930 until June 30, 1956. On June 21, 1956, the Industrial Corn- mission made and entered an order of total permanent disability of Justin W. Peay due to third degree silicosis with inactive tuberculosis and the plaintiff was ordered to pay weekly compensation beginning July 1, 1956, for a period of five years but not to exceed the sum of $12, 100, the maximum provided for by the statute. Plaintiff continued to make the payments until the sum of $12, 100 was paid and thereafter Peay continued to receive compensation payments from the Combined Injury Benefit Fund until he died at the age of 84, on January 11, 1973. On February 22, 1974, the Commission entered an order requiring the plaintiff to pay the sum of $450 to Irene W. Peay for burial expenses for her late husband, Justin W. Peay. Plaintiff is here seeking a review of that order. Jr. , Chief Justice F. Henri Henriod, Justice i It is the plaintiff's contention here that the award of burial expenses is Utah Code Annotated 1953, barred by the provisions of Section which reads as follows: No compensation shall be paid in case of silicosis unless : during the fifteen years immediately preceeding the disablement, the injured employee shall have been exposed to harmful quantities of silicon dioxide (Si02) dust for a total, period of not less than five years in this stz&e and unless total disability results within (a) three years in case of silicosis not complicated by active tuberculosis, or (b) five years in case of silicosis complicated by active tuberculosis, from the last day upon which the employee actually worked for the employer against whom compensation is claimed. ". defines the word "compensation" as the payments and fits provided for in this act. Section 35-2-12- (b) 1. 30 2. 19 Utah 2d 102, 514 P. 2d 217; Utah 2d 239, 430 P. 2d 162. ELLETT, Justice: (Dissenting) ' I dissent. Justin Peay was completely and permanently disabled because of silicosis, which developed while he was an employee of Kennecott Copper Corporation. He was awarded maximum compensation under the occupational disease statutes of this state. He died in 1973 at the age of 84, almost 17 years after he last worked for Kennecott. In 1956 W. Kennecott maintains its own compensation insurance program, and the Industrial Commission ordered it to pay to Irene W. Peay, the widow of Justin W. Peay, the sum of $450 as burial expenses. The plaintiff contends that no award can be made toward burial expenses because death did not occur within five years from the last day which the deceased worked at his job. bene- The award of burial expenses was made by the Commission pursuant to the provisions of Section Utah Code Annotated 1953, as amended, which reads in part as follows: The benefits to which a disabled employee or his dependents shall be entitled under this act . . . are to be limited as follows: (10) In case death results from such occupational disease the employer shall pay not to exceed $1,000 burial expenses. The defendants contend that the award of burial expenses is not limited by the restrictions of Section 3(a)(3). The defendants rely .on the case of Kennecott Copper Corporation v. Anderson which arose under the Workmen's Compensation Statute wherein this court ruled that the statute imposing a six year limitation on compensation did not bar an award for medical and hospital expenses after the six year period. It appears that the decision in that case, as well as the dissent of Mr. Justice Ellett in the case of The United States Smelting, Refining and Mining Company v. Nielsen, 2 was baser! in a large degree upon the provisions of Sec- 35-2- J. Allan Crockett, Justice The statute which Kennecott asserts is a bar to the award is Section which is set forth in the main opinion. This part of the statute merely states the conditions which must have existed in order to entitle an employee to receive compensation during his lifetime. It has no application to death benefits, and there is no contention made that Justin W. Peay did not qualify for and receive the maximum statutory compensation award. 1. Title 35, Chapter 2, U. C. A. 1953 as amended. Subsection (b)(3) of the cited statute provides for death benefits to dependents under certain circumstances, to wit: Subsection (b)(3)(a) awards death benefits when the employee is totally and permanently disabled and where compensation has been paid or awarded. There is no time limitation in such a case. Subsection (b)(3)(b) permits an award to be made to dependents where death results within five years from the last work but does not require that an award be made to the employee nor that he be totally and permanently disabled. -1 -1 The section which does control here is Section 5(e) enacted by in was of the which Utah 1971, statute force and effect when Chapter 77, Laws Justin W. Peay died. It reads: "In case death results from such occupational disease the employer shall pay not to exceed $1,000 burial expenses." I think the Industrial Commission acted within its lawful powers when it awarded burial expenses in the sum of $450. I would affirm the award as made. 35-2- ooOoo Jcrald No. 13631 W. Greaves, Plaintiff and Respondent, FILED November 22, 1974 v. State of Utah, Defendant and Appellant. Allan E. Mecham, Clerk CROCKETT, Justice: Greaves brought this declaratory judgment action to have Section 2, U. C. A. 1953, (Pocket Supp. ) quoted below, which deals with driving or controlling a vehicle while intoxicated, and which he had been charged with violating, declared unconstitutional. Jerald 41-6-- W. 44. Plaintiff was arrested on August 1, 1973, by a Logan City police officer for driving while intoxicated. A test was taken of plaintiff's blood shortly after content of .12 per cent by weight. He was his arrest, showing a blood-alcoh- ol first charged with driving while under the influence of alcohol under a city ordinance. But after a plea of not guilty and other proceedings, that case was dismissed and he was charged under the state statute referred to. Thereafter, and prior to his trial on that charge, in anticipation of the use of his blood test by the State, the plaintiff instituted this action challenging the validity of the statute under which he was charged. It provides: (a) It is unlawful and punishable as provided in subsection (b) of this section for any person with a blood alcohol content of . 10 per cent or greater, by weight, to drive or be in actual physical control of any vehicle within this state. trial court and briefs 2 was the trial court issued his decision that Section assigning reasons of its vagueness and that it fails to require intent, or an act which implies intent, to violate the statute. Upon the submission of the issue to the 41-6-- 44. in support thereof, unconstitutional, either a specific One of the claim ed frailties pointed out is that a person cannot tell when his blood alcohol is . 10 content without a chemical test; and this is compared with other offenses where one can easily tell whether he is violating the law. In his ruling the trial court commented that a person might have such a concentration of alcohol in his blood by medical treatment or injection, and without any intent to violate the law, rather than by drinking alcoholic beverages. In regard to the judicial determination of the constitutionality of statutes there are. certain principles relating to statutory construction, to be taken into consideration. Because the duty rests upon the courts to determine the scope of the powers of all three branches of government, they have a special responsibility to exercise a high degree of caution and restraint to keep themselves within the limitations of the judicial power in order not to infringe upon the prerogatives of the executive or the legislative branches. In harmony with that policy it is the rule that legislative enactments are endowed with a. of validity; and that they should not be declared unconstitustrong presumption tional if there is any reasonable basis upon which they can be found to come within the constitutional frame work; and that a statute will not be stricken down as being unconstitutional unless it appears to be so beyond a reasonable doubt. 2 1. Also included in the attack was Sec. U. C. A. 1953, which provides for the revocation of one's driver's license upon stated conditions, including conviction of the charged offense. The trial court did not hold that section unconstitutional; and that question is not involved in this appeal. 2. See Newcomb v. Ogden City Pub. Sch. Teachers, etc., 121 Utah 503, 243 P. 2d 941; Utah Mfrs. Ass'n v. Stewart, 82 Utah 198, 23 P. 2d 229. We think the contentions against the validity of the statute, and the comments of the trial court, indicate an undue concern with the factor of guilt and punishment with respect to controlling or operating a vehicle while intoxicated. It is well enough known to require no elaboration that driving while under the influence of liquor is so hazardous that it involves the public interest and welfare, and consequently, is a proper subject for regulation and control by law;3 and this is particularly so when combined with the operation of motor vehicles. well-establish- ed 41-2-- 18, suppose that the danger to one's self and to others, which it is the of statute to guard against, would be just as great, however the this purpose We |