State Ex Rel. Grays Hbr. Etc. v. Dept. L. & I, 167 Wash. 507,

      STATE EX REL. GRAYS HBR. ETC. v. DEPT. L. & I.     507
 Apr. 1932          Opinion Per MAIN, J.

      [No. 23657. Department Two. April 6, 1932.]
     THE STATE OF WASHINGTON, on the Relation of The
      Grays Harbor Construction Company, Plaintiff,
           v. THE DEPARTMENT OF LABOR AND
                INDUSTRIES, Respondent. «1»

[1] MASTER AND SERVANT (20-1) - WORKMEN'S COMPENSATION - SCOPE
OF ACT - INDEPENDENT CONTRACTOR UNDER FEDERAL GOVERNMENT.
An independent contractor engaged in extrahazardous work on
a Federal highway for the Federal government is not the agent
of the Federal government engaged in a Federal governmental
activity, and is therefore subject to the operation of the state
industrial insurance act, and liable to the state for industrial
insurance premiums.

[2] MASTER AND SERVANT (20-1) - STATES (1) - SOVEREIGNTY AND
JURISDICTION - TERRITORY CEDED TO UNITED STATES -
OPERATION OF STATE LAWS - WORKMEN'S COMPENSATION.
Exclusive Federal Jurisdiction over a national park having
been acquired through consent of the state subsequently to
the passage of the state industrial insurance act, which
was in force within the boundaries of the park at the time
jurisdiction was ceded, the act remains in force as to
private rights within the park until such time as Congress
passes an act which supersedes it.

Application filed in the supreme court January 19,
1932, for a writ of prohibition to restrain the
department of labor and industries from levying and
collecting industrial insurance premiums. Denied.

Thomas S. Grant and Reynolds, Ballinger, Hutson
& Boldt, for relator.

The Attorney General and Harry Ellsworth Foster,
Assistant, for respondent.

 508    STATE EX REL. GRAYS HBR. ETC. v. DEPT. L. & I.
                Opinion Per MAIN, J.           167 Wash.

extrahazardous work under a contract which the relator
has with the Federal government.

November 23, 1931, the relator entered into a contract
with the United States for the doing of certain
highway work in Rainier national park, and had entered
upon the performance of the contract. The department
of labor and industries levied and assessed
industrial insurance and medical aid premiums against
the relator, based upon its payroll. The operations
under the contract are extrahazardous within the definition
of the workmen's compensation act. As first
stated, this action is brought to prohibit the department
of labor and industries from collecting the premiums
mentioned.

[1] The first question is whether industrial insurance
and medical aid premiums can be assessed and
collected upon a contract with the Federal government
for the doing of extrahazardous work. In this connection,
the relator contends (a) that the construction of
the road is a Federal governmental activity; (b) that
the contractor is an instrumentality or agency of the
Federal government for the performance of the Federal
function; and (c) that the premiums sought to be
exacted directly burden the performance of this function
and interfere therewith. The relator recognizes
that the contentions made cannot be sustained unless
this court overrules the case of Nickell v. Department
of Labor and Industries, 164 Wash. 589, 3 P.2d 1005,
which we are invited to do.

We have considered the relator's argument and the
authorities cited upon the question, but are not disposed
to overrule the case mentioned. The opinion in
that case was well considered, and represents the deliberate
judgment of the court. It was there held that
work being performed under a contract with the Federal
government upon a highway in a forest reserve,

      STATE EX REL. GRAYS HBR. ETC. v. DEPT. L. & I.      509
 Apr. 1932          Opinion Per MAIN, J.

was subject to the operation of the workmen's compensation
act. This was upon the theory that the contractor
was not the agent of the Federal government
engaged in a Federal governmental activity in the construction
of a bridge, but was an independent contractor.

[2] The next and principal question is whether the
workmen's compensation act of this state is in force
within the boundaries of Rainier national park. The
right of the Federal government to exercise jurisdiction
over the park is derived from Article 1, section 8,
clause 17, of the Federal constitution.

In 1899, Congress passed an act which provided
that:

"All those certain tracts, pieces or parcels of land
lying and being in the State of Washington, and within
the boundaries particularly described as follows, to
wit: [Describing the boundaries] are dedicated and
set apart as a public park, to be known and designated
as the Mount Rainier National Park, for the benefit
and enjoyment of the people; and all persons who shall
locate or settle upon or occupy the same, or any part
thereof, except as hereafter provided, shall be considered
trespassers and be removed therefrom." U. S.
C. A., Title 16, SS 91.

Thereafter, and in the year 1901, the legislature of
this state passed an act which provided:

"Exclusive jurisdiction shall be, and the same is
hereby ceded to the United States over and within all
the territory that is now or may hereafter be included
in that tract of land in the State of Washington, set
aside for the purposes of a National Park, and known
as the Rainier National Park; saving, however, to the
said state, the right to serve civil or criminal process
within the limits of the aforesaid park, in suits or
prosecutions for or on account of rights acquired, obligations
incurred or crimes committed in said state,
but outside of said park; and saving further to the
said state the right to tax persons and corporations,

 510    STATE EX REL. GRAYS HBR. ETC. v. DEPT. L. & I.
                Opinion Per MAIN, J.           167 Wash.

their franchises and property on the lands included
in said park: Provided, however, This jurisdiction
shall not vest until the United States through the
proper officer, notifies the Governor of this state that
they assume police or military jurisdiction over said
park." Laws of 1901, p. 192 (Rem. Comp. Stat.,
SS 8110).

In 1911, the workmen's compensation act of this
state was passed, and became effective on October 1st
of that year. In 1916, or five years later, the Federal
Congress passed an act which provided:

"Sole and exclusive jurisdiction is assumed by the
United States over the territory embraced within the
Mount Rainier National Park, saving, however, to the
State of Washington the right to serve civil or criminal
process within the limits of the aforesaid park in
suits or prosecution for or on account of rights acquired,
obligations incurred, or crimes committed in
said State but outside of said park, and saving further
to the said State the right to tax persons and
corporations, their franchises and property, on the lands
included in said park. All the laws applicable to places
under the sole and exclusive jurisdiction of the United
States shall have force and effect in said park. All
fugitives from justice taking refuge in said park shall
be subject to the same laws as refugees from justice
found in the State of Washington." U. S.C. A., Title
16, SS 95.

Thereafter, and in accordance with that act, the
secretary of the interior, on July 16, 1916, notified the
governor of this state that the United States had
accepted jurisdiction over the park area. It will thus be
seen that the jurisdiction acquired over the park was
by the consent of this state.

In the act of 1901, which is above quoted, it was
expressly provided that exclusive jurisdiction was
ceded to the United States over and within all the
territory that is

      STATE EX REL. GRAYS HBR. ETC. v. DEPT. L. & I.      511
 Apr. 1932          Opinion Per MAIN, J.

". . . now or may hereafter be included in that
tract of land in the State of Washington, set aside for
the purposes of a national park, and known as the
Rainier National Park."

The act concludes with the proviso that jurisdiction

". . . shall not vest until the United States
through the proper officer, notifies the Governor of
this state that they assume police or military
jurisdiction over said park."

Prior to the time that the governor of this state
was so notified, and in the year 1911, the workmen's
compensation act was passed. At that time, the cession
of the jurisdiction over the park area to the
Federal government had not become effective, and did
not become effective until approximately five years
later. The Federal jurisdiction over the park area not
having become effective when the workmen's compensation
act was passed, that act was in force and operative
within the boundaries of the park. The workmen's
compensation act having been passed before the
cession of the jurisdiction over the park area became
effective, it remained in force in the ceded territory
until displaced by Congress. In Kaufman v. Hopper,
220 N.Y. 184, 115 N. E. 470, it was said:

"The common law and statutes passed before the
act of cession remain in force in the ceded territory
until displaced by Congress (McCarthy v. Packard
Co., 105 App. Div. 436; affd. on opinion below 182
N.Y. 555; Barrett v. Palmer, 135 N.Y. 336), but later
statutes are of no effect. This is now the settled rule
(Farley v. Scherno, 208 N.Y. 269; Ft. Leavenworth
R. R. Co. v. Lowe, 114 U. S. 525, 537; W. U. Tel. Co.
v. Chiles, 214 U. S. 274). The rule is different where
land has been acquired by the nation without the consent
of the state (Ft. Leavenworth R. R. Co. v. Lowe,
supra ). "

As above pointed out, the jurisdiction over the
territory within the boundaries of Rainier national

 512    STATE EX REL. GRAYS HBR. ETC. v. DEPT. L. & I.
                Opinion Per MAIN, J.           167 Wash.

park was acquired by the Federal government through
the consent of this state. In Chicago, Rock Island &
Pacific Railway Co. v. McGlinn, 114 II. S. 542, the
precise question now before us was dearly and lucidly
discussed, and we shall quote somewhat extensively
from the opinion in that ease. It was there said:

"It is a general rule of public law, recognized and
acted upon by the United States, that whenever political
jurisdiction and legislative power over any territory
are transferred from one nation or sovereign to another,
the municipal laws of the country, that is, laws which
are intended for the protection of private rights,
continue in force until abrogated or changed by the new
government or sovereign. By the cession public property
passes from one government to the other, but
private property remains as before, and with it those
municipal laws which are designed to secure its peaceful
use and enjoyment. As a matter of course, all laws,
ordinances, and regulations in conflict with the
political character, institutions, and constitution of the new
government are at once displaced. Thus, upon a cession
of political jurisdiction and legislative power -
and the latter is involved in the former - to the United
States, the laws of the country in support of an
established religion, or abridging the freedom of the press,
or authorizing cruel and unusual punishments, and the
like, would at once cease to be of obligatory force
without any declaration to that effect; and the laws of
the country on other subjects would necessarily be
superseded by existing laws of the new government
upon the same matters. But with respect to other laws
affecting the possession, use and transfer of property,
and designed to secure good order and peace in the
community, and promote its health and prosperity,
which are strictly of a municipal character, the rule is
general, that a change of government leaves them in
force until, by direct action of the new government,
they are altered or repealed. American Insurance Co.
v. Canter, 1 Pet. 542; Halleck, International Law, ch.
34, SS 14.

      STATE EX REL. GRAYS HBR. ETC. v. DEPT. L. & I.      513
 Apr. 1932          Opinion Per MAIN, J.

"The counsel for the railroad company does not controvert
this general rule in cases of cession of political
jurisdiction by one nation to another, but contends
that it has no application to a mere cession of jurisdiction
over a small piece of territory having no organized
government or municipality within its limits;
and argues upon the assumption that there was no
organized government within the limits of Fort
Leavenworth. In this assumption he is mistaken. The
government of the State of Kansas extended over the
Reservation, and its legislation was operative therein,
except so far as the use of the land as an instrumentality
of the general government may have excepted
it from such legislation. In other respects, the law of
the State prevailed. There was a railroad running
through it when the State ceded jurisdiction to the
United States. The law of the State, making the railroad
liable for killing or wounding cattle by its cars
and engines where it had no fence to keep such cattle
off the road, was as necessary to the safety of cattle
after the cession as before, and was no more abrogated
by the mere fact of cession than regulations as
to the crossing of highways by the railroad cars, and
the ringing of bells as a warning to others of their
approach.

"It is true there is a wide difference between a
cession of political jurisdiction from one nation to
another and a cession to the United States by a State
of legislative power over a particular tract, for a
special purpose of the general government; but the
principle which controls as to laws in existence at
the time is the same in both. The liability of the
railroad company for the killing of the cow did not
depend upon the place where the animal was killed, but
upon the neglect of the company to enclose the road
with a fence which would have prevented the cow from
straying upon it. The law of Kansas on the subject,
in our opinion, remained in force after the cession, it
being in no respect inconsistent with any law of the
United States, and never having been changed or abrogated."

 514    STATE EX REL. GRAYS HBR. ETC. v. DEPT. L. & I.
                Opinion Per MAIN, J.               167 Wash.

The cases of Ft. Leavenworth R. R. Co. v. Lowe, 114
U. S. 525, Arlington Hotel Co. v. Fant, 176 Ark. 613,
4 S. W. (2d) 7, Divine v. Unaka National Bank, 125
Tenn. 98, 140 S. W. 747, 39 L. R. A. (N. S.) 586, and
Steele v. Halligan, 229 Fed. 1011, are to the same effect.

From the authorities cited and the excerpts from
two of them quoted, it follows that, the workmen's
compensation act having been in force within the
territorial boundaries of Rainier national park at the time
jurisdiction thereof was ceded to the United States,
the act remained in force until Congress passed an act
which superseded it. Up to the present time, no act
of Congress has been passed which is in any respect
inconsistent with the operation of the workmen's compensation
act over the park.

The writ will be denied.

TOLMAN, C. J., BEALS, HOLCOMB, and BEELER, JJ.,
concur.