Connole v. Norfolk & W. Ry. Co.

• Citation: 216 F. 823
• Decision Date: 02 September 1914
• Docket Number: 1758.
• Parties: CONNOLE v. NORFOLK & W. RY. CO.
• Court: U.S. District Court — Southern District of Ohio

216 F. 823

CONNOLE v. NORFOLK & W. RY. CO.

No. 1758.

United States District Court, S.D. Ohio, Eastern Division.

September 2, 1914

Smith W. Bennett, of Columbus, Ohio, for plaintiff.

James I. Boulger, of Chillicothe, Ohio, for State Atty. Gen., as amicus curiae.

Bannon & Bannon, of Portsmouth, Ohio, and Henry J. Booth, of Columbus, Ohio, for defendant.

SATER District Judge.

The defendant by its motion seeks an interpretation of section 51 of the Ohio Workmen's Compensation Act (103 Ohio L., 72 90) a copy of which is set forth in the margin. ^[1]

Plaintiff says that the averments in the petition do not admit of any construction other than that the defendant was entirely occupied at the time of his injury in purely intrastate commerce, but as to this counsel do not agree. An interstate carrier may, through the same employe or employes, engage at a given time in intrastate commerce, and at another in interstate commerce. Illinois Cent. R. Co. v Behrens, 233 U.S. 473, 34 Sup.Ct. 646, 58 L.Ed. 1051. It will answer present purposes best, and probably conform to the true meaning of the petition, to treat it as charging that both he and the defendant were, as regards the particular service he was performing at the time he received his injury, engaged in intrastate commerce, although defendant is also an interstate carrier and has at all times engaged in interstate business. The defendant's position is that, even if both were engaged in purely intrastate business at the time plaintiff was injured, the defendant being also an interstate carrier engaged in interstate commerce, is not amenable to the provisions of the Ohio act unless it and some, at least, of its workmen working only in this state, with the approval of the State Liability Board of Awards, had voluntarily accepted the provisions of such act by filing their written acceptances thereof with such board, and unless such acceptances had also been approved by such board; and that in that event the defendant would be subject to the provisions of the act for the period only for which the premiums called for by the act had been paid. Because there is no averment in the petition that the defendant and any of its workmen had thus accepted and become bound by the provisions of the act, the defendant moves to strike from the petition the following paragraph:

'Plaintiff further says that at said time said defendant was to this plaintiff an employer as defined in and subject to the provisions of an act of the General Assembly of the state of Ohio, duly passed and approved March 13 (14), 1912, and entitled: 'An act to further define the powers, duties and jurisdiction of the State Liability Board of Awards with reference to the collection, maintenance and disbursement of the state insurance fund for the benefit of injured, and the dependents of killed employes and requiring contribution thereto by employers, and to repeal sections (here follows a list of the sections) of the General Code.' And said defendant had not at said time, and has not now, complied with any of the provisions of said act.' When interpreting a statute a court may take judicial notice of legislative journals. Endlich, Interpretation of Statutes, Sec. 33; Blake v. National Banks, 23 Wall. 307, 23 L.Ed. 119; United States v. Delaware & Hudson Co., 213 U.S. 366, 414, 29 Sup.Ct. 527, 53 L.Ed. 836; State v. McCollister, 11 Ohio, 46, 55; The Saratoga (D.C.) 9 F. 322, 330; Cooper v. Richmond & D.R. Co. (C.C.) 42 F. 697, 700, 8 L.R.A. 366; American Net & Twine Co. v. Worthington, 141 U.S. 468, 474, 12 Sup.Ct. 55, 35 L.Ed. 821; Bate Refrigerating Co. v. Sulzberger, 157 U.S. 1, 37, 15 Sup.Ct. 508, 39 L.Ed. 601; Knowlton v. Moore, 178 U.S. 41, 77, 20 Sup.Ct. 747, 44 L.Ed. 969; Chesapeake & Potomac Telephone Co. v. Manning, 186 U.S. 238, 245, 22 Sup.Ct. 881, 46 L.Ed. 1144; Division of Howard County, 15 Kan. 195; Dr. J. L. Stephens Co. v. United States, 203 F. 817, 823, 122 C.C.A. 135. In the last-named case it appeared that when the bill which became the Pure Food and Drugs Law was under consideration, an amendment was offered to narrow one of its broad provisions. The amendment was defeated. It was held that such action on the part of Congress is practically conclusive that it intended that the broad provision should remain unmodified, and that the narrower interpretation, which counsel sought and which the amendment contemplated, could not prevail. If the refusal of a legislative body to narrow comprehensive language shows an intention to enact a comprehensive statute, then the converse of that proposition is also true, and if it appears that by amendment words of enlargement are stricken out and words of limitation inserted in their stead, the court should hold that the legislative intent was to restrict. An instructive case enforcing the effect of a restrictive amendment to a bill on its passage is that of State v. McCollister, supra.

The earlier portions of section 51 make the act applicable to employers and employes engaged in interstate or foreign commerce (notwithstanding any federal act affecting them) to the extent only that both are engaged in intrastate work alone at the time of the happening of an injury to an employe; that is to say, the work must be clearly separable and distinguishable from interstate or foreign commerce to bring the employer and its injured employe within the terms of the statute. After thus making the act applicable to such persons, the section further provides:

'And then only (shall the provisions of the act apply to them) when such employer and any of his workmen working only in this state, with the approval of the state liability board of awards, and so far as not forbidden by the act of Congress, voluntarily accept the provisions of this act by filing written acceptances, which, when filed with and approved by the board shall subject the acceptors irrevocably to the provisions of this act to all intents and purposes as if they had been originally included within its terms, during the period or periods for which the premiums herein provided have been paid.'

The section, with certain changes, only one of which affects anything here under consideration, is the same as section 6604-- 18 of the Washington statute (Remington &amp Ballinger's Anno. Codes, Supp. 1913). The only change that need be noted here is the substitution in the Ohio act of the words 'and then only when' for the words 'except that any such,' occurring in that of Washington. The words in the Washington act enlarge the classes of persons to whom the act may apply, whereas the Ohio act restricts such classes. The one extends the application of the statute and the other limits it. The Washington statute is plain and intelligible, but does not appear to have been construed. After the bill which became the Workmen's Compensation Act was introduced in the General Assembly (section 51 being then the same, in so far as it need here be considered, as section 6604-- 18, Washington statute), an amendment was offered in the Senate to strike out the words, 'except that any such,' and to insert in lieu thereof the words, 'and then only when.' The motion prevailed, and the bill as thus amended became the present law. The amendment was probably offered, as counsel suggest, to avoid any objection that might arise under the commerce clause of the federal Constitution and federal legislation enacted in pursuance of such authority. The author of the amendment may have misapprehended the state of the law, but this may not be presumed. 8 Cyc. 804. On the contrary, the court must presume that the Legislature acted advisedly and with full knowledge of the situation, and must accept its action as that of the body having full power to act and acting only when it had acquired sufficient information to justify its action. ...