State v. W.C. Dawson & Co.

• Decision Date: 20 December 1922
• Docket Number: 17564.
• Citation: 211 P. 724,122 Wash. 572
• Court: Washington Supreme Court
• Parties: STATE v. W. C. DAWSON & CO.

211 P. 724

122 Wash. 572

STATE v. W. C. DAWSON & CO.

No. 17564.

Supreme Court of Washington

December 20, 1922

Department 2.

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by the State of Washington against W. C. Dawson & Co. Judgment for defendant on demurrer, and plaintiff appeals. Affirmed.

Lindsay L. Thompson and John H. Dunbar, both of Olympia, for the state.

Guie &amp Halverstadt, of Seattle, amicus curiae.

Cosgrove & Terhune, of Seattle, for respondent.

MAIN J.

This action was brought for the purpose of collecting premiums upon the pay roll of the defendant corporation which was engaged in the business of stevedoring. A demurrer was interposed to the complaint which was sustained by the trial court. The plaintiff refused to plead further, and elected to stand upon its complaint, and a judgment was entered dismissing the action, from which the plaintiff appeals.

The question to be determined is whether the Industrial Insurance Department of the state government has the right to collect from an employer engaged in the business of stevedoring a percentage of his pay roll. In other words, is the stevedoring business within the jurisdiction of the Industrial Insurance Department as are other extrahazardous industries in the state? Section 2 of chapter 67 of the Laws of 1919 provides that:

'The provisions of this act [the Workmen's Compensation Act] shall apply to employers and workmen engaged in maritime works or occupations only in cases where and to the extent that the pay roll of such workmen may and shall be clearly separable and distinguishable from the pay roll of workmen employed under circumstances in which a liability now exists or may hereafter exist in the courts of admiralty of the United States. * * *'

On the 7th day of November, 1921, the Industrial Insurance Department passed a resolution determining and establishing the percentage of the pay roll which should be exacted from those engaged in the stevedoring business. It was to collect this premium that the present action was brought. The work of a stevedore is maritime in its nature and the rights and liabilities of the parties connected therewith are matters which are within the admiralty jurisdiction of the United States. This is settled by the holdings of the United States Supreme Court, which were followed by this court in the State ex rel. Jarvis v Daggett, 87 Wash. 253, 151 P. 648, L. R. A. 1916A, 446. It is said, however, that the Congress of the United States has taken from the federal District Courts jurisdiction over admiralty matters, where, under the workmen's compensation law of any state, district, or territory, there is a complete remedy. The question to be determined is one under the Constitution of the United States, the acts of Congress, and the holdings of the federal Supreme Court. Reference will first be made to the acts of Congress.

Prior to 1917, clause 3 of sections 24 and 256 of the Judicial Code (U. S. Comp. St. 1916, §§ 991[3], 1233), provided that the District Courts should have jurisdiction of all civil causes of admiralty and maritime jurisdiction, 'saving to suitors, in all cases, the right of a common-law remedy where the common law is competent to give it.' On October 6 1917 (40 Stat. at L. 395 [U. S. Comp. St. 1918, U.S. Comp. St. Ann. Supp. 1919, §§ 991(3), 1233]), sections 24 and 256 of the Judicial Code were amended by adding a clause saving to claimants 'the rights and remedies under the workmen's compensation law of any state.' This act will be referred to as the 1917 amendment. In Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834, 11 A. L. R. 1145, that amendment was held to be unconstitutional. On June 10, 1922 (42 Stat. 634), Congress passed another amendatory act, which declared, among other things, that the rights and remedies conferred under the workmen's compensation law of any state, district, territory, or possession of the United States should be exclusive and provided:

'That the jurisdiction of the District Courts shall not extend to causes arising out of injuries to or death of persons other than the master or members of the crew, for which compensation is provided by the workmen's compensation law of any state, district, territory, or possession of the United States.' By this amendment Congress attempted to take from the district courts jurisdiction where the workmen's compensation law of any state, district, or territory had given a remedy. It was an attempt, in effect, to bring within the workmen's compensation law of any state or territory a branch or a part of the admiralty jurisdiction of the United States. If Congress can do this, the Industrial Insurance Department of the state had a right to collect from the respondent premiums upon its pay roll, but Congress has not the exclusive right in determining where matters which are within the admiralty jurisdiction of the United States shall be adjudicated. Article 3, § 2, of the federal Constitution, provides in part as follows:

'The judicial power shall extend to * * * all cases of admiralty and maritime jurisdiction. * * *'

In The Lottawanna, 21 Wall. (88 U. S.) 558, 22 L.Ed. 654, the extent of the maritime law operative throughout the United States was discussed, and it was there said that the Constitution, in the provision above quoted, must have referred to a system of law coextensive with, and operating uniformly in the whole country. The language of the court was as follows:

'That we have a maritime law of our own, operative throughout the United States, cannot be doubted. The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted was most certainly intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend 'to all cases of admiralty and maritime jurisdiction.' But by what criterion are we to ascertain the precise limits of the law thus adopted? The Constitution does not define it. It does not declare whether it was intended to embrace the entire maritime law as expounded in the treatises, or only the limited and restricted system which was received in England, or lastly, such modification of both of these as was accepted and recognized as law in this country. Nor does the Constitution attempt to draw the boundary line between maritime law and local law; nor does it lay down any criterion for ascertaining that boundary. It assumes that the meaning of the phrase 'admiralty and maritime jurisdiction' is well understood. It treats this matter as it does the cognate ones of common law and equity, when it speaks of 'cases in law and equity,' or of 'suits at common law,' without defining those terms, assuming them to be known and understood.

'One thing, however, is unquestionable; the Constitution must have referred to a system of law coextensive with and operating uniformly in the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several states, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the states with each other or with foreign states.'

In Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208, 51 L. R. A. (N. S.) 1157, it was held that a maritime tort was embraced within the constitutional grant. It was there said:

'The Constitution provides that the judicial power shall extend 'to all cases of admiralty and maritime jurisdiction,' and the act of Congress defines the jurisdiction of the District Court, with respect to civil causes, in terms of like scope. To hold that a case of a tort committed on board a ship in navigable waters, by one who has undertaken a maritime service, against one engaged in the performance of that service, is not embraced within the constitutional grant and the jurisdictional act, would be to establish a limitation wholly without warrant.'

In Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, L. R. A. 1918C, 451, Ann. Cas 1917E, 900, it was pointed out that it was difficult, if not impossible, to define with exactness just how far the general maritime law may be changed, modified, or affected by state legislation. It was recognized that to some extent this could be done. That case involved the question as to whether the work of a stevedore was such that it could be brought within the Workmen's Compensation Act of the state of New York. It was held that this could not be done because it would work material prejudice to the characteristic features of the general maritime law and interfere...