unhooking or slipping of a chain which permitted the fall of a log from the top of the pile.

[1] The defense is that the company was not an assenting employer so far as this woods operation is concerned, and that the Industrial Accident Commission has there fore no jurisdiction in this case. The Commission held otherwise and allowed the claim, but, as this issue is one of law, the facts being undisputed, this finding is reviewable by this court, and it cannot be sustained.

[2] The Workmen's Compensation Act expressly provides that, if the employer is "engaged in more than one kind of business, he shall specify the business or businesses in which he is engaged and concerning which he desires to come under the provisions hereof." R. S. c. 50, § 3; P. L. 1919, c. 238, § 3. In this case the employer followed strictly the instructions contained in this section and specified the precise business concerning which it did desire to come under the statutory provisions. Its written acceptance dated at Old Town July 17, 1919, and filed with the Commission under the provisions of section 6, contains the following:

"Average number of employees, 300 male. Location of employment, Milford and Old Town, Maine. Nature of employment, sawmills; box mfg., wood mfg., shooks from sawed lumber only; planing and molding mills; lumber yards."

tion. There can be no doubt under this statement of admitted facts that the Jordan Lumber Company was an assenting employer only so far as its mill and lumber yard operations, its business in Milford and Old Town, were concerned. It might have signified its liability under the Workmen's Compensation Act for accidents occurring in the separate and independent business, the lumbering operation in Piscataquis county, if it had seen fit to do so, but there is no evidence of the fact.

The decision of the Commission refers to the assent as "unqualified." It is unqualified as to the business in Milford and Old Town, but goes not a step beyond those limits, and can be made to include a logging operation in Piscataquis county with no more reason than a farming operation in Aroostook county, simply because the Jordan Lumber Company might be owner of a farm in that county. Shafer v. Parke, Davis & Co., 192 Mich. 577, 159 N. W. 304; Keaney's Case, 217 Mass. 5, 104 N. E. 438.

The claimant obviously was not within the scope of acceptance of the employer, nor of the policy of the insurance company, nor the Compensation Act, and the entry must therefore be:

Appeal sustained. Petition dismissed.

(120 Me. 73)

GAUTHIER v. PENOBSCOT CHEMICAL FIBER CO. et al.

1921.)

1. Master and servant 419-No limitation for application under Compensation Act by reason of changed conditions.

The remedy under the Workmen's Compensation Act, if any, needed by reason of changed conditions or otherwise, must be by application for review, and, if refused approval or if unapproved, an original petition is the appropriate remedy, and no time is limited for its filing as in case of petition for review and original petition provided for by sections 36 and 39.

2. Master and servant 419-Petition under Compensation Act should show nature of claim.

Under the Workmen's Compensation Act, petition of employee, by reason of changed con. ditions following injury and award of compensation, should give the employer, howsoever informally, the information within the contemplation of Rev. St. c. 50, § 30.

Master and servant 419-Defective pe. tition for compensation not prejudicial.

Section 39 relates to original petitions which under section 30 may be filed by either employee or employer. Section 39 provides in effect that in the absence of an agreement between the parties an original petition must be filed within two years.

An agreement may, however, be filed within the same period. If approved, no original petition is necessary or appropriate. The remedy, if any, needed by reason of changed conditions or otherwise must be by application for review. If refused approval or if unapproved (as in this case), an original petition is obviously the appropriate remedy, and no time is limited for its filing. Doubtless a limitation was deemed by the Legislature unnecessary in view of the mutuality of the right to invoke the remedy.

[2] 2. That the petition is defective in form, not being sufficient "to apprise respondent of the nature of the claim made therein."

This point is well taken. The petition should give the defendant, howsoever informally, the information within the contemplation of R. S. c. 50, § 30. In this case the petition does not conform to the requirements of section 30.

[3] However, the case was apparently fully heard. The defendants ask no further time or opportunity for investigation or for the production of further evidence. It not appearing that the petitioner acted contumaciously, or that the defendants were misled or prejudiced by any fault or omission in the petition, we should not for this reason alone reverse the decree.

3. That the chairman erroneously applied to the case chapter 238 of the Laws of 1919, and thus awarded larger compensation than was provided by the law in force when the accident occurred.

It is contended that chapter 238 of the Laws of 1919 by its terms applies to all injuries by industrial accidents occurring after January 1, 1916, this being necessarily implied from section 49, which expressly negatives its application to accidents of earlier dates, and further that by section 50 the workmen's compensation statute in force in 1918 was wholly repealed without any clause saving rights previously accrued.

For these reasons it is claimed that chapter 238 of the Laws of 1919 must be held to be retroactive.

[4, 5] If such be the intention of the act, it cannot under the plain provisions of both the federal and state Constitutions be given that effect so far as concerns rights and obligations which accrued before its passage. Our Workmen's Compensation Law is elec

Upon the happening of an industrial accident the right to receive compensation becomes vested, and the obligation to pay it fixed. To change such vested rights and fixed obligations by statute would clearly be to impair the obligation of contracts.

[6] The procedure may be changed if a substantially equivalent remedy remains; but contractual rights that have become vested remain unaffected by the repeal of an old or the enactment of a new statute.

A few of the many cases through which this principle of constitutional construction has become embedded in the law are Proprietors v. Laboree, 2 Me. (Greenl.) 275, 11 Am. Dec. 79; Palmer v. Hixon, 74 Me. 448; Phinney v. Phinney, 81 Me. 450, 17 Atl. 405, 4 L. R. A. 348, 10 Am. St. Rep. 266; Sturges v. Crowninshield, 4 Wheat. 122, 4 L. Ed. 529; McCracken v. Hayward, 2 How. 608, 11 L. Ed. 397.

To the point that the repeal of a statute does not destroy or impair, but preserves and protects vested contractual rights based upon it, see Steamship Co. v. Joliffe, 2 Wall. 450, 17 L. Ed. 805; State v. Bank, 68 Me. 515; Swan v. Kemp, 97 Md. 686, 55 Atl. 441; K. of A. v. Logsdon, 183 Ind. 183, 108 N. E. 592.

In the following cases arising under Workmen's Compensation Laws the principle has been applied to facts in effect parallel to those in the case at bar. Schmidt v. Baking Co., 90 Conn. 217, 96 Atl. 963; Collwell v. Bedford Co. (Ind. App.) 126 N. E 439; Baur v. Court of Common Pleas, 88 N. J. Law, 128, 95 Atl. 627.

Two cases are cited which at first blush

might seem to be at variance with our con

clusion. Talbot v. Ind. Commission, 108 Wash. 231, 183 Pac. 84, 187 Pac. 410; Carlson v. Dist. Court, 131 Minn. 96, 154 N. W. 661. But in neither of these cases is the effect of the constitutional limitation passed upon, or, so far as appears, presented for the consideration of the court.

The learned counsel for the petitioner submits these cases, but with commendable frankness admits that the judicial authorities almost, if not quite, universally sustain the principle of constitutional construction which we have adopted.

The error which we have pointed out is one of law which the court might correct by modifying the decree. For another reason, however, the decree must be reversed.

4. That the decree is based in part upon alleged facts recited in the Commission's findings which do not appear in evidence.

That the amputation of Gauthier's leg was a necessary result of the accident is disputed. This important issue is found in favor

§ 34.

[8] From the Commission's findings of fact

there is in the absence of fraud, no appeal. It should go without saying that such final findings must be grounded upon evidence presented under such circumstances as to afford full opportunity for comment, explanation, and refutation. In re Sponatski, 220 Mass. 528, 108 N. E. 466, L. R. A. 1916A, 333; Reck v. Whittlesberger, supra; Int. Harvester Co. v. Ind. Commission, 157 Wis. 167, 147 N. W. 56, Ann. Cas. 1916B, 330; Pacific Co. v. Pillsbury, 171 Cal. 319, 153 Pac. 24; Westman's Case, 118 Me. 133, 106 Atl. 532; Mailman's Case, 118 Me. 172, 106 Atl. 606. [9] It is true that our statute authorizes certain medical testimony to be taken ex parte. R. S. c. 50, § 21. But it is not to be made the foundation of a decree until it is "produced in evidence," so that either party may have an opportunity to explain or contradict it.

If it were the duty of this court to decide the facts, we might say that the testimony of Drs. Simmons and Marquis is sufficient to justify the finding.

But the trier of facts may not regard this evidence as sufficient. Thus a situation is created which is not provided for by the statute. Section 34 says that

"The law court may, after consideration, reverse or modify any decree made by a justice, based upon an erroneous ruling or finding of law."

[10] Authority to recommit to the Combut is under some circumstances necessarily mission is not expressly given by statute. implied. McKenna's Case, 117 Me. 181, 103 Atl. 69; Maxwell's Case, 119 Me. 506, 111 Atl. 849.

The law may determine the extent and limits of required modification, and likewise the precise terms of a new decree made nec

essary by a reversal. In such cases there need be no recommitment. But, when a new or modified decree involves the weighing of conflicting testimony, it becomes necessary to remand the case to that tribunal upon which the statute casts the responsibility of weighing evidence, and of determining facts

upon such evidence.

In the pending case the Commission's application of the law of 1919 requires a moddetermined as a matter of law. But whether ification, the precise extent of which may be the elimination of the extrinsic matters up

on which the decree is in part founded leaves enough competent evidence to sustain the petitioner's burden of proof depends upon conflicting testimony, the preponderance of which, to give effect to the statute, must be determined by the Commission. Lacione's Case, 227 Mass. 272, 116 N. E. 485.

We do not need to say that if further evidence is to be produced a recommittal is essential. McKenna's Case, supra.

The decree must be reversed, and the case recommitted, Commission to make new decree based on legal evidence in present record, or, if deemed necessary, to hold further hearing; if new decree is for petitioner, compensation to be assessed in accordance with law prevailing at date of accident. Appeal sustained. Decree reversed.

Case to be recommitted for further proceedings.

(120 Me. 80)

(120 Me. 81)

SHINK v. AUGUSTUS CAREY & CO. et al.

GRAY v. ST. CROIX PAPER CO. et al.

1. Constitutional

1921.)

law 105-Right under Workmen's Compensation Act vests when accident occurs.

When an industrial accident occurs to an employee, the rights and obligations of the parties become vested and fixed under the Workmen's Compensation Law, and such rights and obligations cannot be either destroyed or enlarged by subsequent legislation.

1921.)

1. Master and servant 417(7)-Compensa. tion commission's findings not reviewable by Supreme Judicial Court in absence of fraud.

The Supreme Judicial Court has no authority to review a finding of fact of the Industrial Accident Commission in proceeding under the Workmen's Compensation Act, in the absence of fraud, provided such finding is supported by any legal evidence.

2. Master and servant 405 (4)—Finding of compensable injury, causing death by tuberculosis, sustained.

In a proceeding under the Workmen's Compensation Act, a finding of the Industrial Accident Commission that death resulted on May 3, 1920, of tuberculosis, as a result of a fractured ankle received August 28, 1918, held sustained by legal evidence, consisting of testimony of physician who treated decedent. 3. Master and servant

349-Compensation

fixed by statute in force at time of accident.

Where death of servant on May 3, 1920, was direct result of injury sustained August 28, 1918, applicant for compensation under the Workmen's Compensation Act was entitled to the maximum weekly compensation allowable under the law in force in 1918, for 300 weeks, less 81 weeks, for which compensation was paid during servant's life; Pub. Laws 1919, c 238, not applying.

Appeal from Supreme Judicial Court, Washington County, at Law.

Proceeding by Annie M. Gray under the Workmen's Compensation Act (Rev. St. c. 50)

DEASY, J. [1, 2] In Mathias Gauthier's Case, 113 Atl. 28, it was determined by this court that, under the Workmen's Compensation Law (Rev. St. c. 50), when an industrial accident occurs to an employee, the rights and obligations of the parties become vested and fixed, and that such rights and obligations cannot be either destroyed or enlarged by subsequent legislation. This principle is based upon the plain mandates of both the state and federal Constitutions. It is decisive of this case. The commission invokes chapter 238 of the Laws of 1919 as creating a liability on the part of the defendants to pay the expenses of a surgical operation, for which admittedly there was no liability under the law in force at the date of the accident.

Herbert Gray, opposed by the St. Croix Paper Company, the employer, and the Etna Life Insurance Company. There was an award of compensation, and the employer and insurance company appeal. Appeal sustained, and decree modified.

DEASY, J. In August, 1918, Herbert Gray fractured his ankle in an accident arising out of and in the course of his employment by the St. Croix Paper Company.

By agreement duly approved the defendants paid him compensation at the rate of $10 per week for 81 weeks. On May 3, 1920,

Appeal sustained.

Decree reversed.

have been caused by the fracture.

The chairman of the Industrial Accident Commission found as a fact: