For many years appellant, Union Pacific Railroad Company (hereinafter called company), has been engaged in both intra and interstate commerce, maintaining a yard at Nampa, Idaho, where eastbound and westbound trains are made up and also where trains are made up for several branches like the McCall, Murphy, Homedale, Payette and Middle Valley, P. I. N. Road. July 16, 1941, respondent strained his back while employed by the company in the Nampa yard. April 30, 1943, he filed notice of injury and claim for compensation with the State Industrial Accident Board. May 6, 1943, he filed a petition for hearing such claim. June 5, 1943, the Company filed an answer, in which, among other things, the Company pleaded:
"Further answering said petition and as a second separate and distinct defense thereto, defendant (Company) *Page 491 alleges that it is engaged in the operation of a line of railroad extending within and through the State of Idaho and is engaged in the business of transporting for hire persons and property in interstate and foreign commerce within and through said State of Idaho. That for a long time prior to, on, and since the 16th day of July, 1941 the defendant has been, was, and now is so engaged. That prior to, on, and subsequent to the 16th day of July, 1941 the said claimant Reuben Moser was employed by the defendant in the capacity of a track laborer. That his duties consisted of construction, maintenance and repair of defendant's tracks used in both intrastate and interstate commerce; that claimant's said duties as a track laborer were in furtherance of interstate commerce and directly, closely and substantially affected such commerce. Accordingly claimant's remedy, if any he has, is governed and controlled exclusively by the provisions of the Federal statute known as the Federal Employers' Liability Act and the Industrial Accident Board has no jurisdiction in the matter and possesses no power or authority to make an award to the claimant in this proceedings."
June 10, 1943, the matter was heard by the board. August 26, 1943, findings of fact and rulings of law were made and filed and an order entered thereon awarding compensation to respondent from which the Company appeals.
The Company, before the board and on this appeal, challenges the jurisdiction of the State Industrial Accident Board to hear and determine the controversy. On the other hand, respondent contended before the board and contends on this appeal, the board had jurisdiction to hear and determine his claim to compensation. The facts pertinent to a determination of the question of jurisdiction, briefly stated, are: that the business of the Company increased to a point where it became necessary to enlarge its yard located at Nampa, chiefly to enable the Company to relieve congestion in the yard due to interstate traffic moving over its line through the Nampa yard; that enlargement project was started May 27, 1941 and was completed July 19, 1941; that to enable the Company to expeditiously make up the long interstate trains coming into the yard it was necessary to, and the Company did, construct a new track about a mile and a half long — what the yardmaster called "a 115-car track"; that while traffic from certain branch lines running into Nampa (some of which was intrastate and some interstate) *Page 492 would benefit by such enlargement and improvement, still and nevertheless, the principal traffic to be affected was the through, or interstate, traffic of the Company; that the construction of the new track and the construction of an ice dock (included in the enlargement project) required the relocation, relaying and shifting of old tracks, switches and other facilities; that shortly after the work of the enlargement of the Nampa yard began, to-wit, June 2, 1941, respondent was employed and put to work in what is called in the record, an "extra gang"; an extra gang is simply a larger gang than a regular section gang; an extra gang, like a regular section gang, engages in maintenance and repair work on existing tracks; while respondent was standing in the middle of the new track, shoveling gravel, he strained his back; the gravel used in the construction of the new track and being shoveled by respondent, was loaded at Claytonia, Idaho, a point on the Homedale branch, and shipped from that point through Nyssa, Oregon, and then on to the yard at Nampa; that thus the track upon which respondent was working was actually being used in interstate commerce; that from June 2nd to July 16th, 1941, respondent was assisting in work over the entire yard and while the new track was closed to all traffic but the interstate "gravel" traffic above mentioned, the rest of the yard was continuously used as always in interstate traffic; that:
"Q. Let me ask you this. You (respondent) were working on the tracks, maintaining and repairing tracks — doing anything the foreman told you to do? That is correct, isn't it?
"A. Yes.
"Q. And when he (the foreman) told you that you would have to shift this existing yard track (an old yard track) you proceeded with the rest of the men, didn't you?
"A. Yes.
"Q. Anything he (foreman) directs you to do is part of your duties is it not * * *
"A. I did all the work that he asked me to do."
That respondent, prior to his injury (as he also testified), was shifted or "went from one track to the next."
A determination of the question as to whether the State Industrial Accident Board has jurisdiction to hear and determine respondent's claim to compensation, requires consideration *Page 493 and interpretation of the Federal Employers' Liability Act, after amendment. Hence, we first turn to the following pertinent parts of Sec. 1 of the original Federal Employers' Liability Act:
"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 and territories, or between the District of Columbia or 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, * * *"
Before its amendment, in Shanks v. Delaware, L. W. R. Co.,239 U.S. 556, 60 L. Ed. 437 (decided in January, 1916), the Supreme Court of the United States construed that section. In that case, the facts, as stated by the court, were:
"The railroad company was engaged in both interstate and intrastate transportation, and was conducting an extensive machine shop for repairing parts of locomotives used in such transportation. While employed in this shop, Shanks was injured through the negligence of the company. Usually his work consisted in repairing certain parts of locomotives, but on the day of the injury he was engaged solely in taking down and putting into a new location an overhead counter-shaft — a heavy shop fixture — through which power was communicated to some of the machinery used in the repair work."
Having stated the facts, the court continued:
"The question for decision is, was Shanks at the time of theinjury employed in interstate commerce within the meaning of the employers' liability act? What his employment was on other occasions is immaterial, for, as before indicated, the act refers to the service being rendered when the injury was suffered.
"Having in mind the nature and usual course of the business to which the act relates and the evident purpose of congress in adopting the act, we think it speaks of interstate commerce, not in a technical legal sense, but in a practical one better suited to the occasion (citing cases), and that the true test of employment in such commerce in the sense intended is was the employee, at the time of the *Page 494 injury, engaged in interstate transportation, or in work so closely related to it as to be practically a part of it?" (Emphasis mine.)
Under the rule announced in the Shanks case, supra, it was often difficult to determine whether an employee at the time ofthe accident was actually engaged in intrastate or interstate commerce. For over thirty years there was much uncertainty and confusion. It was very difficult in many instances for an injured employee to determine his status, with consequent failures of justice. Finally, some thirty years after the enactment of the original above quoted statute, the congress, for the purpose of remedying that fault, amended the statute and broadened "the scope of the Employers' Liability Act (1939 amendment, sec. 51, 45 U.S.C.A., p. 118) so as to includewithin its provisions employees of common carriers who, while ordinarily engaged in the transportation of interstate commerce may be at the time of the injury (emphasis mine) temporarily divorced therefrom and engaged in intrastate commerce." (McFadden v. Pennsylvania R. Co. (N.J.) 34 A.2d 221, 222.) The amendment (1939 supra) provides:
"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 being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter." (Emphasis mine.)
The first case decided after the adoption of the amendment was Ermin v. Pennsylvania R. Co., 36 F. Supp. 936. It appears that:
"On January 12, 1940 (the date of Ermin's injury), the plaintiff (Ermin) was engaged as brakeman in moving defendant's engines, which had been out of service for repairs for several months, from its Altoona yard to its Hollidaysburg yard, where they were to be held until orders should be given to take them to Altoona to be repaired; after which repairs they would be returned to service * * *
"These engines were being moved for the purpose of being repaired and returned to active service in their divisions, * * *" *Page 495
The court said:
"This case involves the construction of the Federal Employers' Liability Act as amended by the Act of Congress, approved August 11, 1939.
"The discussions in Congress indicate that it was the intent of the lawmakers to bring within the scope of the Federal Employers' Liability Act all employees whose work at the time of injury was not in actual interstate transportation or a part of it, but any part of whose work was in furtherance ofinterstate commerce, or in any way affected such commerce directly, closely and substantially. The bill, as introduced in the Senate, provided that an employee was to be considered as engaged in interstate commerce if his duties 'in any way' affected interstate commerce. At one of the hearings before a subcommittee of the Committee on the Judiciary of the Senate, the Committee, at the suggestion of Senator Austin, amended this provision by substituting the words 'or in any way directly, or closely and substantially affect such commerce.' Senator Austin said: 'Now, on page 2, lines 18 and 19, occur the words "or in any way." Unless I am convinced I ought not to do that for some good reason, I think I will move to substitute for those words that occur and recur in many cases of recent date as defining what kind of effect on interstate is comprehended by the commerce clause of the constitution. Those are the words, "directly, closely and substantially." I would substitute those words for the words "or in any way" ' ".
"And again: 'Senator Austin: My amendment was to substitute for the words "or in any way" the words "directly, closely and substantially." That is the law as it is interpreted by the Supreme Court of the United States in National Labor Relations Board against Jones Laughlin Steel Corporation [301 U.S. 1,57 S. Ct. 615, 81 L. Ed. 893, 108 A.L.R. 1352]; in the Bituminous Coal Conservation Act of 1935, in connection with N.R.A. Codes, and in Carter v. Carter Coal Co., and others [298 U.S. 238, 56 S. Ct. 855, 80 L. Ed. 1160].' "
"It developed at many of the trials of actions brought by railroad employees that they were not informed by the railroad whether or not at the time of the accident they were actually engaged in interstate commerce, and as a matter of fact few of them knew at the moment when the accident occurred whether they were engaged in interstate or intrastate commerce. *Page 496
"There are multitudinous decisions raising hair-splitting interpretations as to whether or not the employee at thetime of his accident was actually engaged in interstate commerce. It was to avoid this difficulty that congress enactedthe amendment. It was, undoubtedly, the intent of congress to include within the scope of the Federal Employers' Liability Act all employees, even those performing intrastate services whose employment meets the requirements of the Act. It is no longer subject to doubt that congress had the power to include intrastate employment, which affects interstate commerce, within the scope of the Federal Employers' Liability Act. (Citing cases.)
"The court should not by a strained construction (as in the majority opinion in the case at bar) override the intent of thecongress but should rather decide questions in accordance with the views expressed by the congress. Here the congress wastrying to remedy a fault, it was enacting legislation whichwould not require a railroad employee to draw a hairline todetermine whether or not at the moment of the accident he wasactually engaged in interstate commerce. The congress wascorrecting an evil which existed which prevented railroademployees from receiving a just determination of their rights." (Emphasis mine.)
In Wright v. New York Cent. R. Co., 33 N.Y.S. (2d) 531, the court said:
"Claimant usually worked in intrastate commerce for five days a week and in interstate commerce for one day a week. On November 22, 1939, when injured, he was engaged in intrastate commerce.
"Previous to August 11, 1939, the nature of the work in which an interstate carrier's employee was engaged at thetime of his injury or death determined whether the Federal Employers' Liability Act, 45 U.S.C.A., sec. 51 et seq., applied and he was entitled to its benefits. (Shanks v. Delaware, L. W. R.R., 239 U.S. 556, 36 S. Ct. 188, 60 L. Ed. 436, L.R.A. 1916C, 797.) And there were many borderline decisions under this rule. A case would turn upon some slight differentiationin duty or operation, more apparent than real. There was muchhair-splitting and little certainty. It was to avoid all thisand to give a fixity of application that congress amended thisact on August 11, 1939, to include 'any employee of a carrier,any part of whose duties as such employee shall be thefurtherance of inter-state *Page 497 or foreign commerce'. Thus the scope of the statute wasbroadened so as to include practically all employees ofinterstate carriers, including such employees as this claimant, and to do away with the borderline cases. Fine distinctions are no longer necessary. The act is now all inclusive and made sopurposely. The language 'any part of whose duties' is almost as broad as words can make it and we should apply it in the spiritin which it is written. Because of this new statute the State Industrial Board had no jurisdiction of this claim." (Emphasis mine.)
In Lewis v. Industrial Accident Commission et al. (Supreme Court of California), 120 P.2d 886, the court pointed out:
"In order to effectuate the purposes of the amended federalstatute and to avoid the hardship involved in determining ineach case whether the federal or state remedy is to be applied,all doubts should be resolved in favor of the federaljurisdiction." (Emphasis mine.)
Agostino v. Pennsylvania R. Co., 50 F. Supp. 726, in its facts (pertinent in the instant case), is identically like the case at bar. The Conemaugh Division of that railroad (engaged like the Union Pacific in both inter and intrastate commerce) consisted of one eastbound and one westbound track. For many years a portion of the tracks of the Conemaugh Division ran parallel to the Conemaugh River. In order to shorten a portion of the tracks, reduce grades, eliminate curves and slides, and effect more efficient transportation of freight in interstate and intrastate commerce, the Pennsylvania Railroad undertook a project known as the East of Blairsville Revision of Track Alignment, which consisted of the construction of roadbed and track approximately 8,000 feet in length (about the length of the new Union Pacific track) to be connected at both ends with existing tracks. The work of laying tracks began December 16, 1940. Agostino was injured December 31, 1940, while spreading cinders (in the case at bar Moser was injured while shoveling or spreading gravel in the course of the construction of the new track by the Union Pacific). At the time of the accident Agostino was working on the final stage of the completion of the track revision, just as Moser was working on the final stage of the completion of the new track by the Union Pacific, when he strained his back. Neither road intended its new construction to be independent of existing facilities used in interstate and *Page 498 intrastate commerce. On the contrary, each road intended its new construction to be simply an improvement of existing facilities for handling interstate and intrastate commerce. Furthermore, each road later connected its new tracks with existing tracks used in both interstate and intrastate commerce. The court said:
"Was the plaintiff's work in 'furtherance' of interstate commerce? Did it 'in any way' further or 'affect' interstate commerce? Can it be said that the plaintiff's work was not 'in any way' in 'furtherance' of interstate commerce? Did it not substantially 'affect' such commerce.
"The court is not required here to determine whether a person engaged in erecting a new project, intended to be used in interstate commerce, was engaged in interstate commerce, nor to determine whether or not a person working on a new project, such as the construction of a new railway, passenger station or freight house intended to be used in interstate commerce, is actually engaged in interstate commerce.
"Here the plaintiff was working on a revision of track alignment which was an improvement of the existing highway of interstate commerce. Was not that 'in any way' in 'furtherance' of interstate commerce? Does that not 'affect' such commerce? It was just as important to place rails as to replace rails on existing tracks.
"The conclusion seems inescapable that the construction work, while new, was only an improvement such as an extension, alteration, replacement or repair and, therefore, the plaintiff was engaged in interstate commerce."
In the majority opinion it is stated that to determine whether or not the State Industrial Accident Board has jurisdiction, "we must determine" whether Moser was, "at thetime of the injury" (emphasis mine) "engaged in interstate or intrastate commerce." And further on in the majority opinion, it is stated it is clearly established that "at the time (again the emphasis is mine) respondent (Moser) sustained the injury, he was engaged in new construction." In other words, the majority holds that because Moser at the time or moment, he sustained his injury, was shoveling and spreading gravel on the new track, he was employed in intrastate commerce. And to support that holding a line of authorities is cited, among them, Hulse v. Pacific etc. Ry. Co., 47 Idaho 561, decided some ten years before the *Page 499 enactment of the above quoted amendment of the Federal Employers' Liability Act. In the Hulse case, supra, this court properly followed the rule announced in Shanks v. Delaware, L. W. R. Co., supra, but that rule was announced long before the adoption of said amendment. Neither the purpose and intent of the congress in the enactment of the amendment, nor the effect of the amendment, could have been presented to this court in the Hulse case because the amendment had not then been made. Still and nevertheless, the majority, in determining the question of jurisdiction presented in the instant case, applies the old test applicable before the congress adopted the above quoted amendment, thus nullifying the sound, salutary provisions of such amendment.
The order appealed from should be reversed and the cause remanded with direction to the Industrial Accident Board to dismiss the proceeding.