216 P. 749 | Or. | 1923
The relator, who is one of the commissioners of the State Industrial Accident Commission, filed his affidavit and petition in the Circuit Court of Union County asking that an order be issued directing the defendant to show cause why he should not be punished for contempt. Thereafter such proceedings were had that the defendant appeared and answered to the charge. The' court overruled a demurrer to the answer and gave the relator twenty days in which to reply. The relator failed to reply, and thereupon both parties moved for judgment on the pleadings. The court sustained the defendant’s motion, and from an order dismissing the proceedings the relator appealed.
The acts which constituted the alleged contempt, charged in the affidavit, consisted of defendant’s refusal to obey the directions contained in a subpoena issued by the commission directing him to submit to the commission for examination his books, records and
The sole question for decision is whether, under the statute, an employer of labor engaged in two different and wholly unrelated occupations, both of which by statute are enumerated as hazardous, can be a contributor to the state industrial accident fund as to one of said occupations without at the same time, by force of the statute, becoming liable to contribute as to the other, notwithstanding that as to the latter he had filed written notice with the commission of his election not to become a contributor.
The facts under which this question arose are as follows: The defendant owned and operated a bottling works at La Grande, Oregon. In the operation of the bottling works he was subject to the provisions of the Workmen’s Compensation Act and contributed on his pay-roll to ’the' state industrial accident fund. Prior to May 23, 1919, the defendant had contracted with another for the construction of a garage building upon his property at La Grande, Oregon. On that date his contractor discontinued work and surrendered his contract and thereupon the defendant took over the work and completed the building by day labor. On said date the defendant gave written notice to the State Industrial Accident Commission of the fact that he had taken over the work on said garage building and was going to complete the building by day labor and that in the construction of the garage he elected not to contribute to the accident fund and requested the commission to send him the necessary rejection cards for posting on the premises indicating such election upon his part. These rejection cards were forwarded and posted. The
The relator has cited no case which sustains his contention that the defendant, in the construction of the garage building, was liable to contribute to the industrial accident fund. He refers us to certain sections of the statute and particularly to Section 6614, Or. L. That section, in effect, provides that all employers engaged in any of the hazardous occupations enumerated in the act shall be subject to the provisions of the act unless they affirmatively reject its provisions by filing a written notice with the commission of their election not to be subject to the act. By one of its provisos, if such employer is engaged in two or more occupations, one or more of which are enumerated in the act as hazardous and the others are not so enumerated, the employer does not become subject to the act as to the nonhazardous occupation, even though he fails to affirmatively reject the act, unless, in compliance with Section 6636, Or. L., he makes written application to the commission to fix a rate of contribution for such nonhazardous occupation. After the rate on the nonhazardous occupation has been so fixed, the employer, if he then desires to
The authorities seem to hold that the acceptance of the benefits of the act by an employer engaged in a hazardous occupation amounts to an acceptance on behalf of all of the workmen who are employed in that particular occupation: Minneapolis etc. R. Co. v. Industrial Com., 153 Wis. 552 (Ann. Cas. 1914D, 655, 141 N. W. 1119); Anderson v. McVannel, 202
“An examination of the compensation act does not disclose that it anywhere in express terms permits an employer to come under the law as to one business and not as to another, nor does it anywhere prohibit it in express terms. It does not compel an employer to accept its terms for any of his business activities, unless he chooses to do so. He is free to come under the law or to stay out. This being so, why may he not accept its terms as to one business and not as to another? Inasmuch as the election lies with him whether he will come under the law, I can see no good reason why he should not be permitted to accept its terms for one distinct business and not for another. It may be, and probably is, a reasonable construction of the act to say that, when one elects to come under it, his election covers all employees in the distinct business specified in his application, because, if this were not so, it would lead to much confusion among the employees as to which ones were covered and which were not covered. But no serious confusion would occur if all employees in*374 a distinct business were protected. We think it is doing no violence to the act to hold that it contemplates that an employer with two or more business activities may accept as to one and not as to the others.”
The relator also contends that under Section 6621, Or. L., defendant’s rejection as to the occupation of constructing the garage could not become effective until July 1, 1919. That section in effect provides that before employers, engaged in hazardous occupations and contributing to the industrial accident fund, can be relieved from their obligations to continue to contribute, they must, before the first day of May, file a written notice with the commission of their election not to contribute, whereupon, after the thirtieth day of June following, they will be relieved from further contribution. This statute has no application to a case where such employer engages in an entirely new and different occupation, and, within the time provided, gives notice that as to the latter occupation, he elects not to contribute.
In the instant case the defendant, when he took over the construction of the garage, filed with the commission the written notice required from one who elects not to come within the provisions of the act. By so doing he excluded himself from the operation of the act so far as it applied to the construction of the garage. The State Industrial Accident Commission, therefore, acquired no right to contribution from him so far as the construction of the garage was concerned and consequently it had no power to investigate his books and accounts concerning that particular business. For that reason he was not guilty of contempt in refusing to produce them.
The judgment appealed from is therefore affirmed.
Affirmed.