In determining the meaning of a statute, two of the most important canons of construction that we must consider are the evils which the law was intended to remedy, and its historical background and setting. Bank of Lowell v. Cox, 35 Ariz. 403,279 P. 257; Grosjean v. American Press Co., 297 U.S. 233,56 Sup. Ct. 444, 80 L. Ed. 660; Giragi *Page 347 v. Moore, 49 Ariz. 74, 64 P.2d 819, 110 A.L.R. 320. This is particularly true when new legislation involves a radical and far-reaching change in the economic, financial, and legal public policy of the state. We have already grown so used to the Workmen's Compensation Law as a part of our economic and legislative structure that we are prone to forget how recently it has come into being, how radically it has changed our entire conception of economics, the particular evils it was intended to remedy, and the method chosen to reach that result, together with the reasons for and the limitations of such method. For centuries, in practically every country of the world, the employee in all fields of production was required to bear the whole cost of an injury resulting from an accident arising out of and in the course of his employment, unless such accident was due solely to the fault or negligence of his employer. Statistics show us that approximately 70 per cent. of industrial accidents are not due to the latter cause, while many times, due to poverty, ignorance, and the power of the employer, the workman was unable to obtain adequate compensation even in the remaining 30 per cent. of cases where the injury was legally chargeable to his employer. Gradually, however, the idea that it was morally unjust to the individual and, in the long run, economically unsound socially to place the burden of such losses on the shoulders least able to bear them, began to evolve. In 1884 the first Compensation Law in history was enacted in Germany; Austria followed this policy in 1887; and practically all the countries of Europe, together with Canada and Australia, had adopted the same principle before the close of the nineteenth century. It was not until 1908 that the first Compensation Law was adopted in the United States. The movement, however, once started, gained increasing impetus until at the present time almost every state in the nation has *Page 348 some form of workmen's compensation. While the various acts differ greatly in detail, yet the same central principle is the basis of every law of that nature. That principle is well stated in the case of Kenny v. Union R. Co., 166 A.D. 497,152 N Y Supp. 117, 121, in the following language:
"The plain purpose of the statute was to make the risk of accident one of the industry itself, to follow from the fact of the injury, and hence that compensation on account thereof should be treated as an element in the cost of production, added to the cost of the article and borne by the community in general."
And the method followed is that universally used when it is sought to distribute the risk of unexpected incidents, such as death, fire, and other unpredictable happenings.
"The scheme of the statute is, in brief, to charge upon the business, through insurance, the losses caused by it, making the business and the ultimate consumer of its product, and not the injured employee, bear the burden of the accidents incident to the business." Spratt v. Sweeney Gray Co., 168 A.D. 403,153 N.Y. Supp. 505, 506.
Since unquestionably the fundamental reason for compensation laws is to take the burden of loss by injury incurred in and as a result of employment from the individual and place it upon the community as a whole, if the general principle be accepted, every consideration of sound logic and abstract justice would require that every employee should be so protected. Practically, however, legislation is often affected by reasons other than the justice and logic of the proposed law. Under our system of government, the attitude of the legislative bodies towards any proposed law is always based upon what they believe represents the true wishes of their effective constituency. By "effective constituency" I mean the men who actually determine *Page 349 the election of the legislators, as distinguished from that great body of citizens who, from one reason or another, exercise no effective influence on the selection of their officers. The method of insurance universally adopted in the compensation laws is the primary payment by the employer of the cost of such insurance, whether through premiums to the state acting as the insurance carrier, or to private corporations or individuals acting in the same capacity, or, in some cases, where the employer is very strong financially, through direct payment of compensation by it. But in all these cases the theory of the law is that the cost of insurance so advanced by the employer shall eventually be passed on to the ultimate consumer in the form of an increased cost of the product, just as wages, taxes, overhead, and cost of material are passed on through the price of the product sold. In actual practice there are certain classes of employers who are unable, for one reason or another, to pass on the costs, as would generally be the case with the employers of domestic servants, and with those who, through lack of organization, knowledge of accounting and business experience, do not know how to do so; the largest class of this latter type being the small farmers. These employers not only are very numerous, but possess a political strength even greater than their numbers alone would indicate. It was obvious when the compensation laws were first proposed that the great majority of these two classes would be bitterly opposed to such a law if they were required to advance the cost of compensation insurance for their employees, with no apparent possibility of passing it on. There is no doubt that the exclusion from responsibility under the compensation acts of nearly every state of employers of agricultural and domestic servants was not caused by the belief that the employees of those classes should, as a matter of natural justice, be required *Page 350 to bear the burden of accidents occurring in their employments, when employees of a different character were protected, but was dictated by pragmatic reasons based on the considerations above set forth. Those who remember the election at which our Compensation Law and the constitutional amendment authorizing it were approved by the voters, have not forgotten the careful explanation made to the small farmers and the employers of domestic help that they could safely vote for the law because they would not be subject thereto. The employers who were within the terms of the act were extremely few in number when compared to the total number of voters in the state, although their employees comprised probably a considerable majority of those who worked for wages. The effect and doubtless the purpose of the law was, therefore, to distribute the benefits of the act as widely as was then considered practically possible among employees, without alienating a sufficient number of the employers to defeat the act entirely at the polls. Nor when we consider the frailty of human nature and the tendency of almost all men to regard their immediate financial interests ahead of those of their less favored neighbors, or even their own ultimate good, can we say that such a limitation of the benefits of the original law was, considering the circumstances as they existed at that time, unwise? The old adage that "half a loaf is better than no bread" was never applied with greater advantage to the employed classes. But the fact that a certain limitation was practically necessary, though theoretically unsound, when the act was first passed, does not prevent the legislature from bringing the law into closer harmony with economic justice from time to time as circumstances permit, and I think that when an amendment to the law is made, the courts should construe that amendment in harmony with sound general principles of economic *Page 351 progress and for the protection of the weaker members of society, rather than to assume the legislators are adhering to a limitation which was originally based on necessity rather than justice.
With this brief review of the background of our law, the evils which it was designed to remedy, and the method used, let us consider the language of the act. On examining chapter 83 of the Session Laws of 1925, which was our original Compensation Law, it is obvious that it was the intent of the legislature at that time to limit its application somewhat, instead of granting protection to all workmen who, by strict logic and economic justice, were entitled thereto. This was done in two manners: (a) By defining the employer who should be subject to the liability of the act; and (b) by defining the employees who were entitled to its benefits. In other words, in order for an injured employee to obtain compensation, his employer must have been one of a class who came under the act, and he himself must have been one of the employees of such employer who was protected thereby. Section 44 of the act defines the employers who are subject thereto as being, with additions which we need not consider in this case, "every person . . . [who] has in service three or more workmen . . . regularly employed in the same business, . . . except agricultural workers not employed in the use of machinery, and domestic servants." By the plain language of this section the only reason for any mention whatever of any class of employees therein was to aid in the identification of the employer, and the reference to "agricultural workers not employed in the use of machinery, and domestic servants" can only be for the purpose of stating that these employees were not to be counted in determining whether their employer had three or more workmen of the class necessary to bring him under the act. The employer himself might be *Page 352 engaged in any class of business, from the manufacture of copper to the growing of lettuce, from retail dry goods to the operating of a cattle ranch, but the test as to whether he came within the act was not the nature of his business, but the number of his employees who were not agricultural workers or domestic servants. Many persons and corporations who are engaged in extensive farming operations which require the use of machinery are undoubtedly subject to the act and carry compensation insurance regularly, notwithstanding that they have also many employees who are agricultural laborers not using machinery. The test for them is, "Have I three employees using machinery? If I have, the number who are not using machinery is immaterial. I, as an employer, come within the law."
It is in the discussion of the definition of "employer" in section 44, supra, that, in my opinion, the majority of the court has, inadvertently I am sure, first departed from firm ground by a wrong conclusion as to the class of employers excluded from responsibility under the act. No less than nine times do they say, in exact language or in substance, "section 44 excludes from the act employers of agricultural workers not using machinery." This is not true either in substance or in form. The section does not exclude any employer from the act directly. It merely states who shall be included. It will immediately be said that those not included are, by implication, excluded. True, but the inclusion is based on the affirmative employment of certain classes of labor, and the exclusion is not based on the affirmative employment of other classes, but on the failure to employ the required class. Yet the majority say, in substance, "the exclusion of certain employers is based on the fact that they affirmatively employ certain classes of labor." Concretely, "certain employers are excluded because *Page 353 they employ agricultural workers not using machinery, and domestic servants." I am sure they do not mean this. What the section does say, in substance, is,
"Every person that has in service three or more workmen regularly employed in the business is an employer within the meaning of the section, but in counting these workmen we do not count his agricultural workmen of the class mentioned."
The reference to agricultural laborers in section 44 is not for the purpose of defining who is an employee entitled to the benefit of the act, but solely to determine who shall or shall not be counted to ascertain if the employer is subject to its liabilities. Again they say,
"if section 45 had never been enacted or revised as in section 1419, still employers of such workers (agricultural laborers not using machinery) would not be within the letter or spirit of the act."
They certainly do not mean this. The correct statement would be,
"if section 45 had never been enacted or revised as in section 1419, still such workers would not be counted in determining whether or not their employers possessed three workmen of the character required to bring the employer (not the employee) within the act."
I quite agree, nay I insist with all my power, and my whole argument is based on the fact that section 45 and its substitute section 1419 have nothing to do in any way, shape, or fashion in determining what employers come within the act. That question is determined by section 44 and its substitute section 1418 alone. And when once the status of an employer is fixed by these last sections, it is in no manner changed by anything appearing in sections 45 and 1419.
But even though the employer be subject to the act, one working for him who seeks compensation must be *Page 354 an employee within the definition laid down in sections 45 and 1419, which alone define employees.
It is agreed that section 1418 defines an employer substantially in the same manner as section 44. It is when we compare the definition of an employee in section 1419 with that in section 45 that I differ from the majority of the court. They say the two definitions are the same. I claim they differ widely. Let us test this by changing the arrangement of section 45, stating the general rule first, and the exception separately and later. It will then read,
"Employees shall be construed to mean . . . every person . . . in the service of an employer as defined in subdivision 2 of section 44, who employs three or more workmen . . . regularly in the same business, etc. The word `person' shall not include agricultural laborers as designated in section 44, and domestic servants, or any person whose employment is but casual."
We agree that is what the section means, and of course under it no agricultural laborers not employed in the use of machinery could claim compensation, not because their employers were not of the class declared subject to the liability of the act by section 44, but because they were expressly excepted from the class of employee entitled to its benefits as defined by section 45.
Let us now change the arrangement of section 1419 in the same manner as we did section 45. It will then read,
"The term employee, as used herein, shall mean . . . every person in the service of any employer subject to this article as defined in the preceding section. The word `person' shall not include a person whose employment is casual."
What is it that is "defined in the preceding section?" The employer and the employer only. Then every person *Page 355 working for such an employer is an employee, with the sole exception of casual workers.
If section 45 had never appeared in the law, I doubt if it would have even been suggested by anyone that under sections 1418 and 1419, if the employer was within the law, any of those working for him in that business would have been barred from compensation, except casual workers not in the usual course of business of the employer.
It seems to me the only manner in which the majority could have reached the conclusion they did is by a misunderstanding or misapplication of the rule laid down in Re Estate of Sullivan,supra. Notwithstanding the only reasonable "conclusion which can be drawn from the new language is that it was intended to change the legal effect of the statute," they have refused to apply the rule that "the latest expression of the will of the legislature must prevail," but have resorted to the "presumption that the intent is rather to simplify the language without changing the meaning," overlooking entirely the rule that a "presumption" is always destroyed by definite evidence to the contrary. If, therefore, the employers in the present case had three or more employees, such as truck drivers, packers in the lettuce shed who never stepped foot on the ground where the lettuce was grown, makers of the crates in which the lettuce was packed, and the like, who were not "agricultural laborers not employed in the use of machinery," it made no difference whether the business in which the employers were engaged, and in which petitioner was injured, should be classified as farming, wholesaling, shipping, or anything else, they were subject to the liability of the act, so far as that business was concerned. And if the employer is within the act, then all his employees engaged in that business, except casual workmen, are protected by the act, no matter what was the character *Page 356 of the work they were doing at the time. That such an interpretation is in strict accord with economic justice and with common sense seems to me to be clear.
Under the opinion of the majority of the court, an employer may be running a large farm, with half a dozen men operating machinery and an equal number using only hoes, shovels, and similar tools which do not come within the definition of machinery. The man with the tractor in a row of cotton is being followed by the "man with a hoe." In some manner the tractor is upset and both its driver and the other man are injured thereby. The one receives compensation and the other does not. Is this justice? In the very accident which occurred in the present case, had the truck driver been injured at the same time that petitioner was, he would unquestionably have been entitled to compensation, and yet petitioner, injured in the same accident, working for the same employer in the same business, would not. That the legislature had the power to make this distinction, and that it did make it in the original act, I do not deny, but I think when it changes the act so that the precise language of the new law is naturally and logically in harmony with the liberal interpretation, rather than the original restricted one, every principle of justice, and the canons governing the interpretation of statutes, require that the liberal, rather than the restricted, construction, should be applied.
The majority opinion refers to a number of cases as upholding the principle laid down by it. In the case of Hight v.Industrial Com., supra, we held merely that the injured employee, being an agricultural worker, was not to be counted in determining whether his employer fell within the law, and this is undoubtedly correct. I do not think, however, that there was any holding or intent of considering or holding in that case that the employer was within the act, but *Page 357 that, notwithstanding this, the particular injured employee was not entitled to compensation. The case turned on the question of whether the employer was subject to the act, and not whether the employee was entitled to its protection. The case of OceanAccident Guarantee Co. v. Industrial Com., supra, cited by the majority opinion, shows clearly that under sections 44 and 45, as we have stated, not only the agricultural laborer was not counted in determining whether the employer fell within the category, but neither was he in the category of the employee who could recover. I have no quarrel with the rule laid down by the Supreme Court of Utah in that opinion, but our statute of 1928 is materially different from the one in force in Utah.
I am of the opinion that if the employer comes within the definition set forth in section 1418, supra, then any of his employees engaged in that particular business, with the exception of casual workers, are entitled to the benefits of the Compensation Law, and that the award should be set aside and the matter referred to the Industrial Commission for appropriate action.