Thompson v. Department of Labor and Industries

• Decision Date: 14 April 1938
• Docket Number: 26853.
• Parties: THOMPSON, Brigadier General, National Guard, v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

78 P.2d 170

194 Wash. 396

THOMPSON, Brigadier General, National Guard, v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 26853.

Supreme Court of Washington

April 14, 1938

Department 1.

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

Application by Maurice Thompson, Brigadier General of the Washington National Guard and Adjutant General of the State of Washington, to the Department of Labor and Industries to accord the personnel of the National Guard the benefits of the Workmen's Compensation Act. From a judgment reversing an order of the Department denying the application and remanding it to the Department with direction to proceed in accordance with the prayer thereof, the Department appeals.

Reversed and remanded, with direction to dismiss.

G. W Hamilton, Atty. Gen., and J. A. Kavaney, of Olympia, for appellant.

Ward W Roney and Raymond D. Ogden, Jr., both of Seattle, for respondent.

GERAGHTY Justice.

The Adjutant General of the National Guard made application to the Department of Labor and Industries to have the personnel of the guard, both enlisted and commissioned, accorded the benefits of the Workmen's Compensation Act. Rem.Rev.Stat § 7673 et seq.

In support of his application, he alleged that the officers and enlisted men of the guard are employees of the state and engaged in a dual capacity, that is, as state militia and as peace officers; that, in either capacity, they are engaged in extrahazardous employment within the intent and meaning of the act. He states that, in his opinion, the activities of members of the Guard are embraced within the classes of work enumerated as extrahazardous by the definition contained in Rem.Rev.Stat. § 7674; and, in any event, the duties of the Guard are extrahazardous and should be so expressly determined. As an alternative, in case his application for relief under section 7674 be denied, the Adjutant General declares his election to have the Guard come under the act pursuant to its elective provisions. Rem.Rev.Stat. § 7696.

The Director of Labor and Industries informed the Adjutant General by letter of the department's determination, as follows:

'As the law is written at present, it will be impossible for this department to accede to your request.

'I have had this matter investigated thoroughly, having submitted it to the Attorney General, who, likewise, is of the opinion that there is no provision, under the State Industrial Insurance Law, for the Washington National Guard.'

From this decision, the Adjutant General appealed to the joint board of the department. The joint board, after hearing, affirmed the action of the department. On appeal to the superior court of Thurston county, the order of the department was reversed and the application of the Adjutant General remanded to the department, with direction to proceed forthwith in accordance with the prayer of the petition. From the judgment of the superior court, the department prosecutes this appeal.

In addition to the error assigned upon entry of the judgment reversing the departmental decision, the appellant assigns error upon the refusal of the court to dismiss the action, for the reason that the Adjutant General is neither an employer of the men in the National Guard, nor authorized by law, or otherwise, to make the application. Error is further predicated upon the denial by the court of the motion to dismiss, for the reason that the Legislature has, by Rem.Rev.Stat. § 8507, made exclusive provision for relief of the personnel of the Guard, thereby excluding jurisdiction of the department over the matter.

We find nowhere in the Workmen's Compensation Act any specific reference to the National Guard or its personnel. On the contrary, since the first legislative session after statehood, the state's Military Code has contained an express provision for relief of the officers and enlisted men of the Guard wounded or disabled while in the service of the state. The existing provision is embodied in Rem.Rev.Stat. § 8507, reading, in part: 'Every member of the organized militia of Washington who shall be wounded or disabled while on duty in the service of the state shall be taken care of and provided for at the expense of the state, and if permanently disabled shall receive the like pensions or reward that persons under similar circumstances in the military service of the United States receive from the United States: * * * Provided, further, that in the event the organized militia of the state of Washington shall be brought within the provisions of the industrial insurance laws of the state of Washington, the provisions in this section shall be of no force and effect.'

The proviso quoted above was added to the section by amendment at the legislative session of 1923, Laws 1923, p. 147, § 3. Its language clearly imports that it was not then considered that the Guard was under the provisions of the industrial insurance laws of the state. The amendatory act was introduced by the military affairs committee of the Senate. Another bill introduced at the 1923 session and recommended for passage by the military committee provided that the Governor, as commander in chief of the militia of the state, might, on its behalf and on behalf of the state, file his election with the Department of Labor and Industries to accept the provisions of the Workmen's Compensation Act. The bill was not enacted into law, and no controlling inference is to be drawn from its introduction. It does, however, evidence the opinion held by the Military Affairs Committee as to the necessity of legislative sanction for placing the Guard under the act.

At the same session of the Legislature, Laws 1923, p. 348, § 1, there was enacted an amendment to the Workmen's Compensation Act, Rem.Rev.Stat. § 7674a, declaring that the work performed by salaried peace officers of the state, counties, and the municipal corporations of the state should be deemed extrahazardous within the meaning of the preceding sections 7673, 7674. It is significant that the Legislature did not embrace, by reference or otherwise, the personnel of the Guard within the term 'peace officers,' especially so as the Legislature had already, a few days Before , revised Rem.Rev.Stat. § 8507, providing separate relief for members of the Guard injured in service.

The extrahazardous employments covered by the Workmen's Compensation Act are enumerated in Rem.Rev.Stat. § 7674. Another section of the act, Rem.Rev.Stat. § 7692, provides that, whenever the state, county, or other municipal corporation shall engage in extrahazardous work, in which workmen are employed for wages, the act shall be applicable thereto. Provision is made in the section for payment by contractors engaged on public work of premiums collectible under the accident and medical aid funds. While this section has been repeatedly amended, the last time at the 1923 session, Laws 1923, p. 401,§ 5, it, like Rem.Rev.Stat. § 7674a, is silent as to the National Guard.

Notwithstanding this legislative history of the industrial insurance law, the respondent contends that service in the National Guard is entitled to classification by the Director of Labor and Industries under authority of the following provision of Rem.Rev.Stat. § 7674: 'The director of labor and industries through and by means of the division of industrial insurance shall have power, after hearing had upon its own motion, or upon the application of any party interested, to declare any occupation or work to be extrahazardous and to be under this act.'

Stating the question under this head, the respondent says there are but two propositions for determination: (1) Are National Guardsmen engaged in extrahazardous employment? (2) Are National Guardsmen employees of the state?

Both propositions might be answered in the affirmative, and yet our problem would not be solved. Undoubtedly, the service in the National Guard is extrahazardous; but we are here concerned with the question whether the employment is extrahazardous within the intent of the act. The members of the Guard may be considered, in a broad sense, as employed by the state to perform their appointed service in the National Guard, but the question is, Are they workmen as defined in the act?

The Workmen's Compensation Act, primarily, was intended to provide relief only for workmen employed in industry. In Nix v. Department of Labor and Industries, 186 Wash. 651, 59 P.2d 740, 741, we said: 'The Workmen's Compensation Act, as originally enacted, provided relief only for workmen employed in industry and against what is termed extrahazardous employment.'

The Workmen's Compensation Law was enacted, as Rem.Rev.Stat. § 7673 declares, in the exercise of the police power of the state, for the regulation of its industries and the protection of the workmen employed therein. See State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 P. 1101, 37 L.R.A.,N.S., 466; State v. Mountain Timber Company, 75 Wash. 581, 135 P. 645, L.R.A.1917D, 10.

In the absence of language evidencing a contrary purpose, the application of the act would be limited to private industry and not controlling upon the operations of the state itself. Guarantee Title & Trust Co. v. Title Guaranty & Surety Co., 224 U.S. 152, 32 S.Ct. 457, 56 L.Ed. 706; United States v. California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567. But, as we have seen, the act did, by section 7692, specifically bring within its purview workmen employed for wages by the state, county, or other municipal corporation or taxing district while engaged in any extrahazardous work. And, later, salaried peace officers were brought under the act by appropriate legislation. With these two exceptions made by the Legislature itself, the act remains a...