Eclipse Mill Co. v. Department of Labor and Industries of Washington

• Decision Date: 03 December 1926
• Docket Number: 20214,20215.
• Citation: 251 P. 130,141 Wash. 172
• Court: Washington Supreme Court
• Parties: ECLIPSE MILL CO. v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON et al. SULTAN RY. & TIMBER CO. v. SAME.

251 P. 130

141 Wash. 172

ECLIPSE MILL CO. v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON et al.

SULTAN RY. & TIMBER CO. v. SAME.

Nos. 20214, 20215.

Supreme Court of Washington

December 3, 1926

Department 1.

Appeal from Superior Court, Thurston County; Wilson, Judge.

Actions by the Eclipse Mill Company and the Sultan Railway & Timber Company, respectively, against the Department of Labor and Industries and another. From judgments of dismissal plaintiffs appeal. Affirmed.

D. V Halverstadt, of Seattle, for appellants.

John H Dunbar and M. H. Wight, both of Olympia, for respondents.

FULLERTON J.

These are separate appeals, consolidated by an order of this court for the purpose of hearing. Each of the appellants employs workmen who work in extrahazardous occupations as that term is defined in the state Workmen's Compensation Act (Rem Comp. Stat. § 7673 et seq.). Certain of these workmen the appellants did not list on their pay rolls furnished the Department of Labor and Industries, whose duty it is to enforce the provisions of the act mentioned. The department ordered them so to do, and threatened them with the penalties of the act in the case they refused to comply with the order. Actions were then begun by each of the appellants separately in the superior court of Thurston county seeking to enjoin the department from enforcing the order. To the complaints of the appellants, general demurrers were interposed which the trial court sustained. The appeals are from judgments of dismissal, entered after the appellants had elected to stand on their complaints.

There is no contention that the occupations in which the workmen were engaged are not extrahazardous; the controversy is over the question whether the occupations are within the provisions of the Workmen's Compensation Act.

As the causes were determined in the court below on general demurrers, the facts must be gathered from the allegations of the complaint. With reference to the character of the work in which the workmen of the appellant Sultan Railway & Timber Company were engaged, the pertinent allegations are as follows:

'III. That for a number of years last past plaintiff has been and now is the owner of a large body of timber in the state of Washington, and cutting said timber and selling the logs therefrom. That during said time it has been engaged in dumping such logs so produced in the Snohomish river, which at all of said times was and now is a navigable body of water of the United States, flowing through Snohomish county, into the waters of Puget Sound, and at all times hereinafter mentioned said Snohomish river was a body of navigable water upon and over which, with its connections, commerce by water was, and now is, being carried on between points in the state of Washington and other points of the United States and foreign countries. That such logs have been and now are so dumped into the waters of Snohomish river, for the purpose of booming, sorting, and rafting the same while so located in the said Snohomish river, preparatory to causing the same to be towed over the waters of such Snohomish river and other navigable waters of the United States to the mills of the purchasers thereof, that for the purpose of booming and rafting such logs, while so located in the water of said Snohomish river, plaintiff hires and for a number of years last past has hired employees whose duties continually require them to be upon such logs and on the navigable waters of said Snohomish river for the purpose of making such logs into rafts preparatory to causing them to be towed over such navigable waters of the United States to the purchasers thereof. That said rafts or booms of logs are made up by using a number of logs which are permanently chained together and permanently used for holding the logs together, and that the men in working upon these booms frequently use and are required to use these permanent boom sticks to stand on.'

With reference to the character of the work in which the workmen of the appellant Eclipse Mill Company were engaged, the allegations are as follows:

'III. That the business of the plaintiff corporation is now, and continuously for a number of years last past has been, operating a sawmill for the manufacture of logs into lumber, which mill is located on the Snohomish river, a navigable body of water of the United States, flowing through Snohomish county into the waters of Puget Sound; and at all times hereinafter mentioned said Snohomish river was a body of navigable water upon and over which, with its connections, commerce by water was, and now is, being carried on between points in the state of Washington and other points of the United States, and foreign countries.

'IV. That the logs which are cut into lumber at plaintiff's said mill are towed thereto in booms, upon the waters of said Snohomish river, which booms are anchored at said mill while in the navigable waters of said Snohomish river; and logs from such booms are moved therefrom to said mill for cutting, by means of a conveyor operated by a spike endless chain, operating throughout the length of said conveyor. That the lower end of said conveyor extends into the navigable waters of said Snohomish river. That, to transfer logs from said booms to said conveyor, plaintiff hires and for a number of years last past has hired employees, called boom men, whose duties continuously require them to be upon such rafts of logs while on the navigable waters of the Snohomish river for the purpose of breaking up such rafts, and also employees, called slip men, whose duties likewise continuously require and have required them to be upon such navigable waters of the Snohomish river, for the purpose of guiding such logs from such rafts to the said conveyor. That said rafts or booms of logs are made up by using a number of logs which are permanently chained together, and that the men in working upon these booms frequently use and are required to use these permanent boom sticks to stand on.'

From these allegations it will be seen that, while the workmen of each of the appellants work upon navigable waters, they do not actually engage in the work of navigation; that is to say, neither set of workmen transports the logs from one place on such navigable waters to another. The work of the first set is to prepare the logs for transportation; their work ends at the point where actual transportation begins. The work of the second set begins at the point where transportation ends; their work is to break up the rafts after the rafts have reached their destination, and float the logs singly or in groups to the reach of the conveyor by means of which the logs are taken from the navigable waters into appellant's mill.

Turning to our Workmen's Compensation Act, it is at once plain that the Legislature intended it to apply to all cases of employment, where the work is extrahazardous, which are within the legislative jurisdiction of the state. The act expressly so declares, and, among the employments specially enumerated in the act as coming within its provisions, are 'logging' and 'lumbering.' The work in which these workmen are engaged manifestly falls within these terms as they are commonly and generally understood. It must follow, therefore, that, if the work is within the legislative jurisdiction of the state, the workmen are within the terms of the act, and their employers are bound to contribute to the fund from which injuries occurring to the workmen in the prosecution of the work are compensated. But it is equally plain that, if the work is not within the legislative jurisdiction of the state, the act is without application, and their employers are not bound to so contribute. The state Legislature cannot----

'impose upon an employer any obligation to contribute to a fund to pay awards under a workmen's compensation law, unless it affords protection to the employer as against claims of workmen or their dependents payable out of the fund to which the employer is compelled to contribute.' Zahler v. Dept. of Labor and Industries, 125 Wash. 410, 217 P. 55.

The controlling question, therefore, is, Is the work in which these workmen are engaged within the legislative jurisdiction of the state? The question is one we have not found easy of solution; nor is it one upon which we can pronounce a determinative judgment. It involves the law maritime, over which the highest federal court has plenary and final jurisdiction, and it is to the decisions of that court that we must look for the governing rules. The decisions we shall not analyze. Generally, it can be...