This is an appeal from an award made by the Industrial Accident Board in favor of respondent. Inter alia, the following appears from the findings of fact:
"That on July 16, 1941, the claimant Reuben Moser, was employed by the defendant, Union Pacific Railroad Company, a corporation, as a laborer at or near Nampa, Canyon County, State of Idaho. That while so working on said date he suffered an injury. That at said time claimant was a married man with a dependent wife and two minor children under the age of eighteen years. That he was then earning an average weekly wage of $20.64.
* * * *
"That due to the increase in both interstate and intrastate transportation by rail, to facilitate the making up and switching of its trains, to relieve the congestion of traffic in the yard at Nampa, Canyon County, Idaho, and generally to increase the efficiency of its operations, the said defendant, during the month of April, 1941, caused plans to be prepared by its chief engineer for a rearrangement and extension of the said Nampa yard, providing for the installation of new tracks, switches and other facilities, the taking *Page 482 up or replacing, relocating and relaying of old tracks, switches and other facilities, and in general a plan of construction and reconstruction to enlarge said yard. That saidproject called for the excavating for and construction ofapproximately four miles of new tracks and thirty-two newswitches, the building of a new large icing dock about 900 feetlong, and the relocating of tracks and switches to make roomfor the new icing dock.
"That pursuant to said plan, construction on said project was started May 27, 1941. From the commencement of construction to July 19, 1941, the part of the yard under construction and reconstruction, 'the new part,' was closed to traffic and wasnot kept in service, although connected by switches with the portion of the yard which was kept in service. On said last mentioned date the new and reconstructed portion of the yard was opened to traffic, but the project was not finished until about August 23 of the same year." (Italics ours.)
The board further found that the first four or five days respondent worked at relocating tracks; that thereafter up and until July 16, 1941, the date of the accident, respondent worked on new construction, by "helping to carry and lay ties and rails, align them, and to shovel and level gravel"; that his duties were wholly in the construction and reconstruction including the new part of the Nampa yard, to be at some future time, when completed, put into service by the railroad company. So we come to the question of whether respondent in working on the construction, which included the new part, which when completed would be used in both interstate and intrastate commerce, was engaged in employment which entitled him to the benefits of the Federal Employers' Liability Act as amended exclusively, and rendered the Industrial Accident Board without jurisdiction.
On July 16, 1941, respondent while working in the Nampa yard project and while shoveling gravel, sustained a serious injury by accident to his back resulting in a severe pain from which he collapsed and fell in a fainting condition between the tracks of Track No. 118, which was new construction and not in service; neither was the balance of the project in service or being used for either interstate or intrastate commerce. As a result of said injury, respondent was totally disabled for work from the date of the accident, July 16, 1941, to October 1, 1942, except intermittently *Page 483 for short periods of time, and he constantly suffered pain to such an extent that he was unable to carry on his usual employment. The board found respondent's total "disability ended, as of October 1, 1942," but that "he is permanently disabled as a result of his said injury and that the degree of such disability is comparable to 20% of the loss of one leg by amputation at the hip."
Based on its findings of fact, the board made among others the following ruling of law:
"That claimant's duties between the time of his employment by the defendant common carrier on June 2, 1941, and the time of his said injury and accident were not in furtherance of interstate or foreign commerce, and did not in any way directly or closely and substantially, affect such commerce; but that his duties were wholly in the construction of railroad property to be at some future time, when completed, put to such service, and, while said property when completed, became a direct instrumentality of interstate commerce, claimant's duties in connection therewith involved merely a secondary relation to an interstate instrumentality."
The board also ruled that respondent was entitled to an award against appellant for compensation under the Workmen's Compensation law of this state. In other words, that his right to recover compensation for such injury by accident was not governed, and restricted to the Federal Employers' Liability Act as amended.1 *Page 484
As stated in appellant's brief, only two questions are here presented. First, did the board have jurisdiction? Second, do the findings of fact by the board support as a matter of law the order and award?
To determine whether or not the board had jurisdiction we must determine from the facts as disclosed by the record (1) was respondent at the time of his injury engaged in interstate or intrastate commerce, or were his duties as such employee in furtherance of interstate or foreign commerce; or (2) were his duties or the work he was performing at the time of his injury in any way directly or closely and substantially affecting interstate commerce? We think that it is substantially established that appellant's yards at Nampa, where the work was being carried on, were not being used at the time of respondent's injury, July 16, 1941, in either interstate or intrastate commerce, or at all. Neither do we think that in view of the magnitude of the work being done that it can be logically contended that it was but repair work. It is conceded that part of the work being done was new construction. It is further clearly established that at the time respondent sustained the injury, he was engaged in new construction. As testified by appellant's witness, Scott, foreman, who made the following answers to the following questions:
"Q. Now, this line on which he was working at the time he was injured, the entire line had been laid and excavated and new ties put in?
"A. Yes, they just built it. "Q. And new rails laid on the new ties?
"A. Yes.
"Q. And that had been built prior to the time the rails were laid?
"A. Yes." *Page 485
As will be observed, the primary argument upon the part of appellant, turns upon the question of whether the case comes within the Federal Employers' Liability Act as amended; and to support the contention that it does, appellant cites and relies upon the following cases: New York Cent. R. Co. v. Porter,249 U.S. 168, 63 L. Ed. 536; New York Cent. R. Co. v. Winfield,244 U.S. 147, 61 L. ed. 1045; Philadelphia B. W. R. Co. v. Smith,250 U.S. 101, 63 L. Ed. 869; La. Ry. Nav. Co. v. Williams, (5 Cir.) 272 F. 439; Hulse v. Pac. I. N. Ry. Co., 47 Idaho 561,277 P. 426; Prader v. Pa. Ry. Co., (Ind.)49 N.E.2d 387; Ermin v. Pa. R. Co., 36 F. Supp. 936; Louisville N. R.Co. v. Potts, (Tenn.) 158 S.W.2d 729; Wright v. New YorkCent. Ry. Co., 33 N.Y. Supp. (2d) 531; Piggue v. Baldwin,154 Kan. 708, 121 P.2d 183; So. Pac. Co. v. Ind. Acc. Comm., 19 C. (2d) 271, 120 P.2d 880; No. Carolina R. Co. v. Zachary,232 U.S. 248, 58 L. Ed. 591; Philadelphia Reading R. Co. v.Polk, 256 U.S. 332, 65 L. Ed. 958; Philadelphia Reading R. Co.v. DiDonato, 256 U.S. 327, 65 L. Ed. 955; U.S. v. Darby,312 U.S. 100, 85 L. Ed. 609; Va. Ry. Co. v. System Fed. No. 40,300 U.S. 515, 81 L. Ed. 789; NLRB v. Jones and Laughlin S. Corp.,301 U.S. 1, 81 L. Ed. 893, 108 A.L.R. 1352; Wickard v. Filburn,87 L. Ed. 57; Erie R. Co. v. Winfield, 244 U.S. 170,61 L. Ed. 1057; Mondou v. N.Y., N.H. H.R. Co., 223 U.S. 1,56 L. Ed. 327; Copley v. Ind. Acc. Comm., 19 C. (2d) 287,120 P.2d 879; Agostino v. Pa. R. Co., 50 F. Supp. 726; McFadden v.Pa. R. Co. (N.J.), 34 A.2d 221; Shanks v. U. P. Ry. Co.,155 Kan. 584, 127 P.2d 431. An examination of the authorities cited by appellant discloses that the facts are not parallel to the facts in the instant case. Some of them are hair-splitting, and all of them are decided in the light of their own peculiar facts, and are therefore not controlling in this case. Moreover, a careful analysis of appellant's authorities discloses that none of them holds directly that working upon new construction ultimately to be used in interstate commerce is employment in interstate commerce within the meaning of the Federal Employers' Liability Act as amended; although appellant contends "one cannot find a case more parallel to the case at bar than" Agostino v. Pa. R. Co., supra.
Respondent in maintaining that the case does not come within the Federal Employers' Liability Act as amended cites the following cases: Raymond v. C. M. St. Paul R. *Page 486 Co., 61 L. Ed. 583, 37 S. Ct. 268; Louisville N. R. Co. v.Morgan's Adm'rs., (Ky.) 9 S.W.2d 212; Gulf M. R. W. v.Madden, (Miss.) 200 So. 119; Hulse v. Pac. I. N. Ry. Co., supra; Davis v. Dept. of Labor Industries, 317 U.S. ___,87 L. Ed. 175; Brotherhood of Railroad Trainmen et al. v. TerminalR.R. Assn., 63 S. Ct. 420, 87 L. Ed. 369; Parker v.Director of Agriculture et al v. Brown, 63 S. Ct. 30,87 L. Ed. 235; Howard v. Illinois Cent. R. Co., 28 S. Ct. 141; Mondou v.N.Y., N.H. H.R. Co., supra; Shanks v. Del. L. W. R. Co.,60 L. Ed. 436, 239 U.S. 556; C. N.W. Ry. Co. v. Bolle,52 S. Ct. 59, 76 L. Ed. 173; Lawrence v. Rutland R.R. Co., (Vt.)28 A.2d 488, (Petition for certiorari denied, 87 L. Ed. 294);Thomason v. Ind. Comm. of Ill., 44 N.E.2d 19; Jones v.Loughlin, 57 S. Ct. 621, 81 L. Ed. 893. There is a most interesting and exhaustive article discussing the question herein involved in 47 Harvard Law Review at page 399.
Respondent makes the contention that working on new construction which will, when completed, be used in interstate commerce, is not employment in interstate commerce within the meaning of the Federal Employers' Liability Act as amended, and cites, among others, the case of Gulf M. R. W. v. Madden, supra, from which we quote the following:
"The rule which has been formulated as a result of the foregoing and many other cases is expressed as follows: The service performed must be directly and immediately related to interstate commerce and that relation must be so close or intimate as to make the work then being done by the employe practically a part of such commerce. That the stated rule is subject to what a layman would pronounce as hair-splitting distinctions is illustrated by this: When a railroad employe is engaged in dumping coal into the tender of an engine then or about to be used in interstate service, he is within the Federal Act; but when he is engaged in putting coal into a chute thereafter to be dumped from the chute into the tenders of interstate engines, the service is not within the act. (Chicago, etc., R. Co. v. Harrington, 241 U.S. 177,36 S. Ct. 517, 60 L. Ed. 941.)
"But, the cases are in substantial agreement that employes engaged in the original construction of roadbeds or tracks to be used in interstate commerce are not engaged within the meaning of the statute, while on the other hand those employed in the repair or maintenance of interstate *Page 487 railroad tracks are within the Act. The difficulty is in applying the distinction between construction and repair to a given state of facts. Ordinarily, what is meant by repairs is that there is a restoration of an originally existing condition, but in practical conduct repairs often involve more or less construction, and a betterment or improvement as compared with the original condition.
"But when the work being done is well beyond any such proportion as may be fairly ascribed to the concept of a repair, then it must go over into the classification as construction. Here the old road bed was practically on a level with the adjacent territory. The old roadbed, for more than half a mile, had been released from the operation of trains for a period of several months, and for more than two months when this accident occurred, and all the trains were being operated over a detour track west of and parallel to the old roadbed. They were not repairing the old roadbed or track, but they were superimposing upon this the old roadbed, a new construction consisting of a fill not theretofore existing which reached at the bridge a height of nine feet, and at this point, and as an essential part of the new work, there was a new bridge, none ever having been there before.
"This enormous and costly project cannot be fairly ascribed to the concept of a repair, and the fact that it was being erected upon the ground previously occupied by the tracks and was to be used when completed for the operation of interstate commerce can have no more effect to make it a repair, rather than construction, than in the cases, Thomas v. Boston M. R.Co., D.C., 218 F. 143, and Wright v. Inter-urban R. Co.,189 Iowa 1315, 179 N.W. 877, in which certiorari was denied.255 U.S. 570, 41 S. Ct. 375, 65 L. Ed. 791.
"In the Thomas case, a roundhouse previously used as an instrumentality in interstate commerce was rendered useless by a fire, and it was being reconstructed at the same spot. It was held that an employee engaged in the process of the new construction was not employed in interstate commerce. In the Wright case, a substation theretofore used as an instrumentality in interstate commerce was being reconstructed, during which time a temporary substation was provided nearby. It was held that a railroad employe engaged in the reconstruction of the original substation was not employed in interstate commerce. We would suppose that if the old substation were only one story in *Page 488 height and it had become advantageous to the service to add a second and third floor, it would not be contended that in the progress of the work on the two additional stories, the first story being for the time abandoned for use, and employee in that work was engaged in interstate commerce, or in repair rather than construction."
Respondent also cites Raymond v. C. M. St. Paul Ry. Co., supra, wherein it was held that a railway employee, engaged in cutting a tunnel which was not then used, was not engaged in interstate commerce since the tunnel was only partly bored and was not used as an instrumentality of interstate commerce. InLouisville N. R. Co. v. Morgan's Adm'rs., supra, a member of a railroad construction crew engaged exclusively in blasting operations in constructing a new track, when killed by a flying rock which struck him on the head as a result of an explosion, was held not engaged in either interstate or intrastate commerce. In Shanks v. Del. L. Y. W. R. Co., supra, the court held that the meaning of interstate "commerce" as used in the Federal Employers' Liability Act was limited to mean interstate "transportation", and the test under the act was whether the employee was engaged in interstate transportation at the time of the injury. The Shanks case was cited with approval and reaffirmed by the United States Supreme Court in C. N.W. Ry.Co. v. Bolle, supra, wherein it is said:
"It will be observed that the word used in defining the test is 'transportation', not the word 'commerce'. The two words were not regarded as interchangeable, but as conveying different meanings. Commerce covers the whole field of which transportation is only a part; and the word of narrower significance was chosen understandingly and deliberately as the appropriate term. The business of a railroad is not to carry on commerce generally. It is engaged in the transportation of persons and things in commerce; and hence the test of whether an employee at the time of his injury is engaged in interstate commerce, within the meaning of the act, naturally must be whether he was engaged in interstate transportation or in work so closely related to such transportation as to be practically a part of it.
"Since the decision in the Shanks Case, the test there laid down has been steadily adhered to, and never intentionally departed from or otherwise stated. It is necessary to refer to only a few of the decisions. * * * The rule *Page 489 announced by the Shanks Case has been categorically restated and applied also in the following cases among others:Southern P. Co. v. Industrial Acci. Commission, 251 U.S. 259,263, 64 L. Ed. 258, 260, 10 A.L.R. 1181, 40 S. Ct. 130;Industrial Commission v. Davis, 259 U.S. 182, 185,66 L. Ed. 888, 891, 42 S. Ct. 489; Baltimore O. S.W. R. Co. v. Burtch,263 U.S. 540, 543, 68 L. Ed. 433, 436, 44 S. Ct. 165, 24 N.C.C.A. 42. The applicable test thus firmly established is not to be shaken by the one or two decisions of this court where, inadvertently, the word 'commerce' has been employed instead of the word 'transportation'."
It may readily be conceded that a railroad is engaged in interstate commerce when engaged in the transportation of persons and things between the several states or territories, or between any of the states or territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations; and when so operating in interstate commerce a railroad is liable in damages to any person suffering injury, when he is employed by such carrier in such commerce, due to the railroad's negligence.
The rule would seem to be that the jurisdiction of state courts and tribunals should be surrendered only where lack of jurisdiction is clearly shown to exist and any doubt should be resolved in favor of the state's retaining jurisdiction. (Davis v. Dept. of Labor Industries, supra; Brotherhood ofRailroad Trainmen et al v. Terminal Railroad Assn., supra;Parker, Dir. of Agriculture et al v. Brown, supra.)
It is contended by appellant that the 1939 amendment to the Federal Employers' Liability Act, supra, broadened the act and brought within it employes not previously covered by establishing "two classifications, either one of which brings the employee within the provisions of the Federal Employers' Liability Act, (1) 'any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce,' or (2) when his duties shall 'in any way directly or closely and substantially, affect such commerce as above set forth.' " While there may be two classifications, the weakness of this contention lies in the fact that at the time respondent sustained the injury, and prior thereto, he was performing no duties as an employee of appellant's in the furtherance of interstate or foreign commerce, nor did the duties he was performing in any way directly or closely *Page 490 and substantially affect such commerce. The appellant itself was not engaged at the time of the injury, and prior and subsequent thereto, in the furtherance of interstate or foreign transportation in or over the entire area where the new construction was being carried on and which had been withdrawn from service.
A careful analysis of the many decisions cited in the briefs of counsel for both parties and other cases examined, and keeping in mind that each case must be decided in the light of its own peculiar facts, constrains us to hold that under the facts of this case, respondent was not engaged either in interstate or intrastate commerce at the time of his injury, and therefore cannot be classified as falling within the Federal Employers' Liability Act as amended. To hold that the amendment, under the facts of this case, applies to respondent would sanction another unwarranted invasion by congress of the reserved power of the states over their local concerns.
Having so concluded it would follow that the Industrial Accident Board was not without jurisdiction, nor did it act in excess of its powers. The findings of fact by the board support the award.
The judgment is affirmed and it is so ordered with costs to respondent.
Givens and Dunlap, JJ., concur.
1 "Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, tracks, road-bed, works, boats, wharves, or other equipment.
"Any employee of a carrier any part of whose duties as suchemployee shall be the furtherance of interstate or foreigncommerce; or shall, in any way directly or closely andsubstantially, affect such commerce as above set forth shall,for the purposes of this chapter be considered as beingemployed by such carrier in such commerce and shall beconsidered as entitled to the benefits of this chapter." (45 U.S.C.A. 51.) (Italic paragraph is 1939 amendment.)