3 P.2d 1005 | Wash. | 1931
This is an appeal by the department of labor and industries of this state from a judgment of the superior court for Thurston county which reversed a decision of the department which rejected a claim of the respondent, Della Nickell. Her claim is for pension and benefits under our workmen's compensation law, on account of the death of her husband resulting *590 from his injuries received while he was engaged in an extrahazardous employment in this state.
Our problem is as to whether or not Mrs. Nickell's husband was, at the time he received his fatal injuries, employed in a Federal governmental activity of such nature as to deprive him and his dependents of the benefits of our workmen's compensation law.
The facts are not in dispute. The appeal from the decision of the department to the superior court was submitted to that court upon an agreed statement of facts which became the statement of facts certified to this court upon the appeal from the judgment of the superior court. The controlling facts may be summarized as follows, our quotations being from the statement of facts: On July 7, 1930, Roy Johnson, a resident of this state, entered into a contract in this state with the United States to construct a bridge to be known as the "Clear Fork Bridge" on the Randle-Yakima highway, the bridge being within the boundaries of the Rainier national forest, as established and reserved under the laws of the United States.
"Said Randle-Yakima highway is being constructed under a written agreement between the Secretary of Agriculture of the United States and the director of highways of the state of Washington. Funds for the construction of said work are provided by the Federal government and, under the terms of said agreement, the highway, after completion, is to be maintained for a period of two years by the Secretary of Agriculture, after which time it will be accepted and maintained by the state of Washington and will become a part of State Road No. 5. Prior to commencing work upon said bridge, the said Johnson made inquiry to the department of labor and industries of the state of Washington as to whether or not his employees in the construction of said bridge were subject to the provisions of the workmen's compensation act of the state of Washington, and thereupon offered to pay *591 to the department of labor and industries the premiums provided and required under said act."
Thereupon, the department advised Johnson that,
". . . inasmuch as the contract on this particular job has been let by the Federal government, and also located within the boundaries of the Federal forest reserve, the department would have no jurisdiction."
This advice was later confirmed by a communication from the department to Johnson in response to his again offering to pay the premiums required by the workmen's compensation act.
"On August 30, 1930, Lee F. Nickell [husband of respondent], while an employee of the said Johnson in the construction of said bridge, and being at said time engaged in an extrahazardous occupation as defined by the workmen's compensation act of the state of Washington, fell from said bridge and was injured, and from said injuries he died on September 7, 1930, leaving surviving him his widow, Della Nickell, and four children, . . . Said Lee F. Nickell was, at the time of his death, and long prior thereto, a resident of the state of Washington, and his said widow and children are now, and were at all times herein mentioned, residents of the state of Washington. Thereafter, and on or about November 19, 1930, the said Della Nickell filed with the department of labor and industries of the state of Washington her claim for the pension and benefits of the workmen's compensation act of the state of Washington, which said claim was denied by the department . . ."
The appeal of Mrs. Nickell from the decision of the department to the superior court and the appeal of the department from the judgment of the superior court to this court followed in due course, as above indicated.
[1] Counsel for the department invoke, in justification of its decision rejecting the claim of Mrs. Nickell, *592 the general rule that the agencies and activities of the Federal government are exempt from interference by state legislation. It is argued that Johnson, in the construction of the bridge for the Federal government, though doing so as an independent contractor, became a Federal governmental agent in that behalf, and that for the state to exact from him contribution to its industrial insurance fund for the benefit of his employees and their dependents, would be an unwarranted interference with such governmental agency and activity; and that, since the state cannot lawfully exact such contribution from Johnson, it follows that his employees and their dependents do not have any right of compensation from our workmen's compensation fund.
It is conceded on both sides that the exaction of contribution to our workmen's compensation fund from those employing workmen in extrahazardous employments is not a tax exaction. We have so held. State v. Postal Telegraph-Cable Co.,
Of course, the exertion by a state of its taxing power is not the only means by which a state may assume to interfere with Federal governmental activities. It is conceivable that the state might assume to exact contribution to its workmen's compensation fund in such manner as to unlawfully interfere with Federal governmental activities. But our problem is reduced to this: Was Johnson an agent of the Federal government engaged in a Federal governmental activity in the construction of the bridge? We think not. Manifestly, he was an independent contractor in the construction of the bridge.
In State v. Wiles,
[2] Contention is further made in support of the decision of the department, upon the theory that certain provisions of Chapter
If such injunctive relief so provided for should not become available to the state because of its interference with the work as a governmental activity, that would only mean that the state could not enforce such remedy. As to the state's ability to do so under such circumstances, we need not here inquire. Our original workmen's compensation act, Chapter
We conclude that the judgment of the superior court reversing the decision of the department must be affirmed. It is so ordered.
TOLMAN, C.J., MAIN, MITCHELL, and BEELER, JJ., concur. *595