The Industrial Commission and the lessees moved for rehearing on the ground that since the lessees employed less than four men they were not within the terms of the act, C.L. § 4390, amended S.L. 1923, p. 733. A rehearing was granted on this question only. The point is well taken and the opinion is modified accordingly. Claim is made that more men were employed, but we have read the *Page 277 evidence and it justifies the conclusion that there were but two. The lessors, if liable at all, are so "irrespective of the number of employees engaged in such work." C.L. § 4423.
The clerk erroneously rejected a motion of plaintiff in error for a rehearing. We have considered that motion as if it had been duly filed.
This motion urges that since the lease was in the ordinary form of a nonoperating lease it does not justify the commission in determining that plaintiff in error was operating the mines by leasing. We think otherwise. It would be possible and not difficult for any owner to operate his mines by means of such a lease as that in question (he even retains right of entry and title to the ore mined); the lease, therefore, does not conclusively preclude the finding, and, while we might not have held as did the commission, we regard the question as one of fact, not law, and so cannot say the commission was wrong.
The company insists that the decision should turn on the question whether the lease gives the lessees the characteristics of employees; that if it does so, the lessor is operating by lease, if not, not. But the statute has no force if it applies only to the case of actual employer and employee. Its force lies in the fact that it says that one shall "be construed to be" an employer who would not otherwise be such, but the proposition of plaintiff in error would have it say that he only shall "be construed to be" an employer who would otherwise be such.
If, as plaintiff in error claims, the legislative intent was, by the phrase "operating by leasing," to include only block and level leasing and split check leasing, it would seem that would have been more plainly expressed.
Our former opinion is modified and the judgment of the district court sustaining the award of the commission is affirmed.
MR. CHIEF JUSTICE BURKE, MR. JUSTICE WHITFORD and MR. JUSTICE SHEAFOR concur. *Page 278