In re Application of The Chicago v. Fuller

• Decision Date: 06 December 1919
• Docket Number: 22,163
• Citation: 105 Kan. 608,186 P. 127
• Court: Kansas Supreme Court
• Parties: In re Application of the CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY for appointment of Arbitrator under chapter 226 of the Laws of 1917 (THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellee, v. CHARLES FULLER et al., Appellants)

186 P. 127

105 Kan. 608

In re Application of the CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY for appointment of Arbitrator under chapter 226 of the Laws of 1917 (THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellee, v. CHARLES FULLER et al., Appellants)

No. 22,163

Supreme Court of Kansas

December 6, 1919

Decided July, 1919.

Appeal from Sherman district court; CHARLES I. SPARKS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WORKMEN'S COMPENSATION ACT--New Election Not to Accept it Necessary after its Revision. The workmen's compensation act of 1913 provided that all employers within its general scope should be presumed to have come within its provisions unless by reason of an affirmative election to the contrary, expressed by filing a notice with the secretary of state, which should be changed only by a written declaration filed with that officer. In 1917 the act was radically amended, many important changes being made. The section relating to the election by employers was reenacted, with several merely verbal changes and the addition of a clause declaratory of the law as it already existed. Held, that an employer who had given notice in 1913 of an election not to come within the law, was by the new act brought within its operation, in the absence of notice of an election to the contrary given subsequent to its enactment.

2. SAME--A Minor is Bound by Provisions of Statute. The fact that an employee is a minor does not prevent his being bound by the statute which places employees within the operation of the workmen's compensation act in the absence of an affirmative election to the contrary.

Bennett R. Wheeler, S. M. Brewster, John L. Hunt, all of Topeka, George C. Stiles, and F. M. Miner, both of Minneapolis, Minn., for the appellants.

Luther Burns, and John E. DuMars, both of Topeka, for the appellee.

OPINION

MASON, J.:

On November 8, 1917, Charles Fuller, twenty years of age, an employee of the Chicago, Rock Island & Pacific Railway Company, received an injury arising out of and in the course of his employment. In February, 1918, the company filed in the district court an application for the appointment of an arbitrator to determine the amount to which he was entitled under the workmen's compensation act. An arbitrator was appointed, who made an award which was confirmed by the court. At the hearing before the arbitrator, and also upon the application for a confirmation of his report, objections were made on behalf of Fuller and his parents, for the reason that neither he nor the company was subject to the compensation statute, and on that ground they now appeal from the decision.

1. The company contends that in November, 1917, it was operating under the provisions of the compensation act, and the appellants deny this. There is no dispute as to the facts. The controversy is wholly one concerning the construction of the statute of 1917. The original compensation act in this state became operative as to a particular employer only by his making an affirmative election to come within its provisions. (Laws 1911, ch. 218, § 44.) Two years later, this practice was changed, and the rule was adopted that all employers of the classes covered should be presumed to have come within its provisions, except such as should file with the secretary of state notice of an election to the contrary, subject to change only by a subsequent written declaration. (Gen. Stat. 1915, § 5938.) In March, 1913, the Rock Island company filed notice of its election not to accept the provisions of the act of 1911, as amended by the act of 1913. In 1917 a statute was passed amending twenty-five sections of the act of 1913 and adding two new ones. (Laws 1917, ch. 226.) The section relating to election by employers was reenacted with certain changes which will be pointed out later. (Laws 1917, ch. 226, § 23.) The railway company has filed no declaration of a change in that election, but contends that the effect of the act of 1917 was to bring within its operation all employers within its terms who did not, subsequent to its enactment, file notice that they elected not to come under it. The soundness of this contention is the question to be determined.

The applicants invoke the statutory direction that--

"The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment." (Gen. State. 1915, § 10973, subdiv. 1.) That is the usual rule of construction, and implies that ordinarily language of an earlier statute which is preserved in an amendment is deemed to speak as of the time of the original enactment, and not of the later one. The rule, however, is subject to the express reservation that it is not to be followed when "such construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute." (Gen. Stat. 1915, § 10973; City of Emporia v. Norton, 16 Kan. 236.) It is moreover merely declaratory of what is by the weight of authority regarded as the reasonable method of interpretation (26 A. & E. Encycl. of L. 713; II Lewis' Sutherland Statutory Construction, 2d ed., §§ 366, 367; Cooley's Constitutional Limitations, 7th ed., 96, 97), although an early Kansas case (Gordon v. The State, ex rel., 4 Kan. 489, 500) has been regarded as adopting the contrary view. ( City of Troy v. A. & N. Railroad Co., 11 Kan. 519, 531.) The purpose of the general rule is to avoid the practical inconveniences which would result from the conception that the old statute had ceased to have any force and that the new one had no effect save from the date of its enactment (II Lewis' Sutherland Statutory Construction, 2d ed., § 366), for instance, the loss of offices, the end of corporate existence, the defeat of inchoate statutory rights, the taking away of statutory power, or the affecting of pending proceedings and criminal charges. (Id., § 367.)

The rule of construction referred to, as it is recognized in the absence of legislation, or as it is formulated in the statute, is not meant to interfere with the enforcement of what to the court appears to be the real intention of the lawmaking body, as derived from a consideration of the acts involved, and the circumstances under which they were adopted. In seeking for the real intention of the present law, we are constrained to the belief that the legislative purpose was that all employers within the general scope of the compensation act should be held to come within its provisions, except such as subsequent to the 1917 enactment should file with the secretary of state notice of an election to the contrary. While the act of 1917 left untouched some seventeen of the sections of the law as it had stood since 1913, the changes made in the other sections were radical and far-reaching. Important alterations were made relating to the circumstances under which compensation was to be awarded, the amount, and the methods by which it was to be determined. Merely by way of illustration--until 1917 an employer who had rejected the compensation system could still show contributory negligence in reduction of damages in an action against him based on his common-law liability (Gen. Stat. 1915, § 5940)--a right taken away in that year. (Laws 1917, ch. 226, § 25.) The statute with these amendments was so different from that previously in force that the fact that an employer had rejected the provisions of the original act afforded no just basis for a presumption that he would not be willing to accept those embodied in the statute in its final form. The clearly displayed policy of the legislature since 1913 has been to encourage the extension of the operation of the compensation act by making it apply to all establishments within its general scope, excepting such as are taken out of it by their own affirmative action. To have arranged that employers who had elected not to come within the provisions of the law as it stood in 1913 should be unaffected by the new legislation unless they should themselves take the initiative to that end, would have been to refuse to apply the same principle to the new situation, and would indicate a partial return to the policy of the act of 1911, under which no employer was affected unless he filed a notice of his election to be brought within its operation.

The reenactment of the section...