Chicago, Burlington & Quincy Railroad v. Amack, No. 24123

No. 24123 | Neb. | Jul 18, 1924

Per Curiam.

William S. Bruner, while employed by the appellant as a member of a bridge gang, was killed by a train. Claim was made for compensation under the workmen’s compensation act. An allowance was made by the labor comissioner. The railroad company appealed to the district court, and from an adverse decision there has brought this appeal.

The question at issue is a narrow one. Bruner was working with a bridge gang, constructing a concrete culvert under a wooden trestle upon the main line of the Chicago, Burlington & Quincy Railroad between Kansas City, Missouri, and Denver, Colorado. It is the contention of the defendant that the provision in subdivision 2, sec. 3029, Comp. St. 1922, “Railroad companies engaged in interstate or foreign commerce are declared subject to the powers of congress and not within the provisions of this act,” applies, and that hence there can be no award. The appellee rests his case upon the proposition that the work in which deceased was engaged was not connected with interstate commerce, that it was new work having no direct relation to such commerce and therefore that his employment fell within the provisions of the compensation act. Granting that deceased was not engaged in interstate commerce,, is such an employee or his dependents entitled to compensation under the law? Section 3029, Comp. St. 1922, is a general statute. The first subdivision provides: “The provisions of this act shall apply to the state of Nebraska and every governmental agency created by it, and to every employer in this state employing one or more employees, in the regular trade, business, profession or vocation of such employer.” The second subdivision is as follows: “The following are declared not to be hazardous occupations and not within the provisions of this act: Employers of household domestic servants and employers of farm laborers. Railroad companies engaged in interstate or foreign commerce are declared subject to the powers of congress and not within the provisions of this act.”

The determination of the question depends upon the intention of the legislature as expressed in this section. The first subdivision is inclusive in the classification of employers, and the second subdivision is exclusive. It is expressly provided that employers of household domestic servants, employers of farm laborers, and railroad companies engaged in interstate or foreign commerce are not within the provisions of this act. Can language be more clear and positive? The contention of the claimant is that the statute should be read as if it contained the word “while” or “when,” as follows: “Railroad companies ‘while’ or ‘when’ engaged in interstate or foreign commerce are declared subject to the powers of congress and not within the provisions of this act.” Is the court authorized to amend the act in this manner? The rule is that if the language of a statute is ambiguous the courts may construe it, but if the language is plain and unambiguous, to attempt to give it any other than its plain meaning would be judicial legislation. The legislators evidently did not have in mind the contingency that railroads engaged in interstate commerce might be employers of labor not connected with such commerce, and made no provision for such a contingency. It is argued that the statute must be construed liberally. This we concede, and this has been the uniform holding of this court, but a liberal construction cannot supply a deliberate omission.

A consideration of the progress of the workmen’s compensation act through the legislature confirms this view of the legislative intent. In section 2 of the original bill “engineering works” were included as extra hazardous, and in a description of such works in section 3 railroads are included. When the act reached the senate it was amended so as to provide: “The provisions of this act shall apply to every employer in this state enumerated in this subdivision of section 6 engaged * * * in the business of carriage by land or water and loading and unloading in connection therewith (except that this act shall not be construed as applying to any railroad or railway company engaged in interstate or foreign commerce, which railroad or railway company by reason of being so engaged is not subject exclusively to the legislative power of the state of Nebraska, and for which railroad or railway company and the employees thereof a rule of liability or method of compensation has been or may be established by the congress of the United States; it being the intent and purpose that this act shall not affect or change the existing statutory liabilities and rights as between railroad or railway companies and their employees with respect to damages or compensation for accidental injuries or death caused by accident arising out of and in the course of employment).” This was amended in the house and the act as finally passed excluded “railroad companies engaged in interstate or foreign commerce.” The legislature evidently considered the inclusion of such railroads and definitely rejected the idea. The court is not authorized or empowered to write such rejected matter into the statute, even though the result of the legislation seems unfair and unjust. The Nebraska statute stands almost, if not quite, alone in excluding such railroads as a class. The legislature alone has power to extend relief to this class of workers, and since the facts before us show the necessity of such legislation perhaps it may amend the law.

The judgment of the district court is reversed and the cause dismissed.

Reversed and dismissed.

Note — See Statutes, 36 Cyc. pp. 1103, 1107, 1138 — Constitutional Law, 12 C. J. p. 883, sec. 387 — Workmen’s Compensation Acts, p. 36, sec. 31.