State v. Rainier National Park Co., 192 Wash. 592,

 594    STATE v. RAINIER NATIONAL PARK CO.
                Opinion Per GERAGHTY, J.           192 Wash.

however, to the state of Washington the rights reserved
in its act of cession. 16 U.S.C.A., SS 95.

Thereafter, in July, 1916, the secretary of the interior
notified the governor of the state of Washington
of the acceptance of jurisdiction over the park
area by the United States, thus completing the process
required to vest exclusive Federal jurisdiction.

[1] "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. . . .

"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." Chicago, R. 1. & Pac. R. Co. v.
McGlinn, 114 U.S. 542, 5 S. Ct. 1005.

It is also an accepted rule of law that, where a
cecession of jurisdiction is made by a state to the Federal
government, it is necessarily one of political power
and leaves no authority in the state government thereafter
to legislate over the ceded territory. Arlington
Hotel Co. v. Fant, 176 Ark. 613, 4 S.W. (2d) 7, affirmed
by the supreme court of the United States, 278
U.S. 439, 49 S. Ct. 227.

[2] The original workmen's compensation act was
passed at the 1911 session of the legislature. Under
the rules above announced, this act, with amendments
made at the 1913 and 1915 sessions of the legislature,
being in effect in the area embraced within the park
at the time Federal jurisdiction became effective,
continued in force therein until repealed or superseded;

           STATE v. RAINIER NATIONAL PARK CO.           595
 Dec. 1937          Opinion Per GERAGHTY, J.

on the other hand, numerous and material amendments,
made by the legislature subsequent to the 1915
session, did not become operative within the park.
These later amendments affected the rate of premium
to be paid by the industries covered by the act, as
well as the amount of compensation payable to its
beneficiaries. The provisions for medical aid to injured
workmen and for the creation of the medical
aid fund and assessments therefor were first adopted
at the 1917 session.

In 1928, Congress passed an act (45 Stat. 54) entitled

"An Act Concerning actions on account of death or
personal injury within places under the exclusive
jurisdiction of the United States."

This act provides:

"In the case of the death of any person by the neglect
or wrongful act of another within a national park or
other place subject to the exclusive jurisdiction of the
United States, within the exterior boundaries of any
State, such right of action shall exist as though the
place were under the jurisdiction of the State within
whose exterior boundaries such place may be; and in
any action brought to recover on account of injuries
sustained in any such place the rights of the parties
shall be governed by the laws of the State within the
exterior boundaries of which it may be." 16 U.S.
C.A. (Sup.), SS 457.

It is the respondent's contention, sustained by the trial
court, that this act, in giving a right of action governed
by the state laws, necessarily superseded the provisions
of the workmen's compensation act effective in
Rainier National Park at the time civil jurisdiction
over the area vested in the Federal government. While
there was no formal repeal of the prior state enactment,
it is hard to reconcile the provisions of the

 596    STATE v. RAINIER NATIONAL PARK CO.
                Opinion Per GERAGHTY, J.          192 Wash.

congressional act with the idea of a co-existent remedy
under the state compensation act.

Section one of the compensation act, Laws 1911,
chapter 74, p. 345, after characterizing the common
law system governing the remedies of workmen engaged
in hazardous employment as inconsistent with
modern industrial conditions and, in practice,
economically unwise, unfair, slow and inadequate, declares:

"The state of Washington, therefore, exercising
herein its police and sovereign power, declares that
all phases of the premises are withdrawn from private
controversy, and sure and certain relief for workmen,
injured in extrahazardous work, and their families
and dependents is hereby provided regardless of questions
of fault and to the exclusion of every other
remedy, proceeding or compensation, except as otherwise
provided in this act; and to that end all civil
actions and *civil causes of action for such personal
injuries and all jurisdiction of the courts of the state
over such causes are hereby abolished*, except as in
this act provided." (Italics ours.) (Rem. Rev. Stat.,
SS 7673 [P. C. SS 3468] .)

It will thus be seen that, while the state compensation
act abolishes all civil actions and civil causes of
actions and all jurisdiction of the courts over such
causes, the congressional act grants a right of action
for death or personal injury within the park area.

Commenting on the conflict of the two systems of relief, this
court, in Murray v. Gerrick & Co., 172 Wash. 365, 20 P.2d 591, said:

"As already pointed out, the industrial insurance
act has taken away all right of action except that
therein provided for, and the Federal act refers to
rights of action. It is true that the industrial
insurance act contains a provision that, if the employer does
not pay into the industrial insurance fund, and an
injury occurs to a workman while the employer is
so in default, the action may be brought by the injured
employee against the employer, and the common

           STATE v. RAINIER NATIONAL PARK CO.           597
 Dec. 1937          Opinion Per GERAGHTY, J.

law defenses shall not be available. If it should be
held that, under this provision of the act, an action
could be maintained for an injury occurring in the
navy yard, which is subject to the exclusive jurisdiction
of the United States, then we would have a situation
where a part of the industrial insurance act would
extend to the navy yard and a part would not."

This case was affirmed on appeal to the supreme
court of the United States, 291 U.S. 315, 54 S. Ct. 432,
92 A.L.R. 1259. That court, in disposing of the question,
said:

"Congress may, however, adopt such later state
legislation as respects territory under its jurisdiction,
and the petitioner claims it did so adopt the
compensation act by the Act of February 1, 1928. This
argument overlooks the fact that the federal statute
referred only to actions at law, whereas the state act
abolished all actions at law for negligence and
substituted a system by which employers contribute to a
fund to which injured workmen must look for compensation.
The right of action given upon default of
the employer in respect of his obligation to contribute
to the fund is conferred as a part of the scheme of
state insurance and not otherwise. The Act of Congress
vested in Murray no right to sue the respondents,
had he survived his injury. Nor did it authorize the
State of Washington to collect assessments for its
state fund from an employer conducting work in the
Navy Yard. If it were held that beneficiaries may
sue, pursuant to the compensation law, we should have
the incongruous situation that this law is in part effective
and in part ineffective within the area under
the jurisdiction of the federal government."

The same incongruity would result from a holding
in the present case that, notwithstanding the congressional
enactment giving a right of action, the state
plan of compensation, which abolished all rights of
action, is still effective.

While perhaps not having any determinative legal
effect, the difficulties of enforcing the compensation

 598    STATE v. RAINIER NATIONAL PARK CO.
                Opinion Per GERAGHTY, J.           192 Wash.

act within the park area are further emphasized by
the fact, to which we have made reference, that much
of the law has been changed by enactments of the
legislature subsequent to the acquisition of Federal
jurisdiction, which admittedly cannot be enforced;
for instance, in the sum for which suit is here brought
there is included a considerable amount on account
of assessments levied for the medical aid fund. As
we have seen, provision for this fund was not enacted
until after the state had ceded jurisdiction.

Although having no direct bearing on the present
controversy, we may remark here, parenthetically,
that Congress, by the act of June 25, 1936, 40 U.S.
C.A. (Sup.), SS 290, authorizes the states to apply the
workmen's compensation acts to all lands or premises
owned or held by the United States by deed or act of
cession, by purchase or otherwise, within the exterior
boundaries of any state, to the same extent as if the
lands were under the exclusive jurisdiction of the
state. Doubtless, this act was passed to clarify the
situation resulting from conflicting systems of relief.
This congressional act was not self-executing and required
formal legislative sanction by the state. Such
sanction was given by the passage of chapter 147,
Laws of 1937, p. 525.

The state, in support of its contention, relies
principally upon the case of State ex rel. Grays Harbor
Const. Co. v. Department of Labor & Industries,
167 Wash. 507, 10 P.2d 213. There, the relator sought
to prohibit the department from levying and collecting
industrial insurance and medical aid premiums on
account of extrahazardous work which the relator was
doing in Rainier National Park. The court held that,
since the workmen's compensation act had been in
force within the park at the time jurisdiction thereof
was ceded to the United States, the act remained in

                STATE v. RAINIER NATIONAL PARK CO.      599
 Dec. 1937          Concurring Opinion Per MILLARD, J.

force until Congress had passed an act to supersede
it, and that no act of Congress had been passed inconsistent
with its operation. The Court did not refer
to or construe the congressional act of 1928 in its
opinion. The relator made no reference to it. The
state cited the act, contending that, by its terms, the
compensation act became operative within the park.
As the state's right was sustained on another ground,
no reference was made to this contention.

The judgment of the lower court is affirmed.

STEINERT, C. J., MAIN, HOLCOMB, BEALS, ROBINSON,
and SIMPSON, JJ., concur.
-Concurring-

MILLARD
-Concurrence-

MILLARD, J. - In State ex rel. Grays
Harbor Const. Co. v. Department of Labor & Industries,
167 Wash. 507, 10 P.2d 213, we said:

"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."

On appeal in that case, the attorney general quoted
in his brief the congressional enactment (chapter 15,
Act of February 1, 1928, 45 Stat. 54, 16 U.S.C.A.
(Sup.), SS 457), and argued that it extended the compensation
act of this state to extrahazardous employment
within the park area. The attorney general
urged construction by this court of the act in question,
and stated that this statute "has never been construed
by any court so far as we have been able to
ascertain."

Manifestly, we failed to give the congressional

 600    STATE v. RAINIER NATIONAL PARK CO.
                Dissenting Opinion Per BLAKE, J. 192 Wash.

enactment the construction later given by us and the
United States supreme court in the case of
Murray v. Gerrick & Co., 172 Wash. 365, 20 P.2d 591,
291 U.S. 315, 54 S. Ct. 432, 92 A.L.R. 1259. It would
indeed be, as the United States supreme court held
in the case cited, an incongruous situation to hold that
this law is in part effective and in part ineffective
within the area under the jurisdiction of the Federal
government. I cannot agree with the dissenting
opinion that the above cited congressional act (which
we disregarded in State ex rel. Grays Harbor Const.
Co. v. Department of Labor & Industries, supra)
fortifies the authority of the opinion in which we failed
or refused to notice the congressional enactment.
State ex rel. Grays Harbor Const. Co. v. Department
of Labor & Industries, 167 Wash. 507, 10 P.2d 213,
should be overruled.

The congressional act of July 25, 1936, 40 U.S.
C.A. SS 290, mentioned in the majority opinion, we
may note. That enactment was doubtless intended
to supply the remedy not afforded by the congressional
act of 1928. It weakens the authority of State
ex rel. Grays Harbor Const. Co. v. Department o[
Labor & Industries, supra. The judgment of the trial
court should be affirmed.

-Dissenter-

BLAKE

BLAKE, J. - I think SS 457, 16 U.S.C.A.
(Sup.), providing:

"In the case of the death of any person by the neglect
or wrongful act of another within a national park or
other place subject to the exclusive jurisdiction of
the United States, within the exterior boundaries of
any State, such right of action shall exist as though
the place were under the jurisdiction of the State
within whose exterior boundaries such place may be;
and in any action brought to recover on account of
injuries sustained in any such place the rights of the

                STATE v. RAINIER NATIONAL PARK CO.      601
 Dec. 1937          Dissenting Opinion Per BLAKE, J.

parties shall be governed by the laws of the State
within the exterior boundaries of which it may be,"

fortifies, rather than weakens, the authority of State
ex rel. Grays Harbor Const. Co. v. Department of
Labor & Industries, 167 Wash. 507, 10 P.2d 213.
For the section does not purport to provide any remedies
for personal injury or wrongful death, or change
the effective remedies existing at the time cession of
the park area was accepted. As pointed out in the
majority opinion, the industrial insurance act, as it
existed at that time, continued to be effective until
such time as the Congress provided to the contrary.
The act of 1928 (16 U.S.C.A. (Sup.), SS 457) plainly
was not designed to effect a change, but to confirm
remedies already afforded by state laws. It seems to
me that, in the light of our industrial insurance act
abolishing actions at law by employees against employers,
the phrase "*such right of action*" may well
be read as "*such remedy*" as is afforded by the laws
of the state. Unless the section is so read, it is
meaningless as to all cases arising from accidents to
workmen in extrahazardous industry.

The fact that our industrial insurance act has been
amended subsequent to the cession of Rainier National
Park to the Federal government is immaterial. For,
as the supreme court of the United States said, in
construing SS 457, 16 U.S.C.A.: "This plainly means the
existing law, as declared from time to time by the
state." Murray v. Gerrick & Co., 291 U.S. 315, 54
S. Ct. 432, 92 A.L.R. 1259.

The existing law in this state, as relates to injuries
to workmen, at the time the cession was accepted, and
at the time of the passage of SS 457, 16 U.S.C.A.
(Sup.), and at the present time, is the industrial insurance
act as "declared from time to time by the
state."

 602    COOK v. STATE.
                     Syllabus.                    192 Wash.

If the subsequent act (40 U.S.C.A. (Sup.), SS 290),
providing specifically for the operation of the industrial
insurance act in ceded territory, has any relevancy
to the problem in this case, it is to dispel any
doubt, in that it expressly provides for what must
be necessarily inferred from SS 457, Title 16 (Sup.),
namely, that persons injured in such territory shall
be assured of the remedies provided by state law.

I dissent.