The majority have set up some of the arguments against the result they reach and have *Page 489 answered them to their and not to my satisfaction.
The contract in question is controlled by the provisions of the law existing at the time the contract was entered into. The statute is chapter 113, Laws 1929, "An Act Providing for Compensation of Workmen Engaged in Certain Occupations," etc.
The question is, What are the "certain occupations" for which compensation is provided?
Since the argument of the majority would seem to bring them inevitably to the conclusion that, under the present existing Workmen's Compensation Law, the state highway commission now has authority and discretion to make its own determination of what are extrahazardous occupations, and that the commission is not limited to the classification of extrahazardous employments "named or described" in the act, we first examine the argument from the standpoint of the provisions of the present law. They say: "In order to invoke the second, appellee is forced to construe Laws 1927, c. 100, as mandatory. It contends that the phrase `is hereby authorized to take out insurance policies' should be held to mean `is hereby required to take out insurance policies.' We are not impressed with the contention. It seems plain to us that the statute merely enables the commission to insure its employees if it thinks proper. It is equally plain that no liability for compensation is imposed upon the commission or upon the state's moneys under its control. The liability is express and goes merely to payment of premiums from the road fund in case the commission in its wisdom or discretion shall have seen fit to take out policies. The 1929 re-enactment made no change in these respects."
We think the majority have overlooked some of the amendments to the 1917 Workmen's Compensation Act (Laws 1917, c. 83). From the foregoing quotation it appears that they assume that "no liability for compensation is imposed upon the commission or upon the state's moneys under its control."
By section 2 of the 1929 act "the state * * * employing as many as four workmen in any of the extra-hazardous occupations or pursuits hereinafter named or described * * * shall become liable to, and shall pay to any such workman injured by accident arising out of and in the course of his employment in any such occupation and pursuit."
It has been strongly argued in this court in a number of cases that, since the state through its Legislature has assumed this liability, it has impliedly consented to be sued by a party seeking to enforce such liability. We have declared that this contention is unsound. New Mexico State Highway Department Commercial Casualty Insurance Company v. Bible, 38 N.M. 372,34 P.2d 295, citing Dougherty v. Vidal, 37 N.M. 256, 21 P.2d 90.
The fact that the state may not be sued, however, does not destroy this self-imposed liability to pay compensation to its injured employees engaged in "certain occupations."
Thus finding that the state "shall become liable to, and shall pay" to its employees injured by accidents arising out of and in the course of his employment, "in any of the extra-hazardous occupations and pursuits *Page 490 hereinafter named or described," it is but natural that the Legislature should provide a means of meeting its liability if and when it should attach. To that end it is provided in section 26, c. 113, Laws 1929, that:
"The State Highway Commission is hereby authorized to take out insurance policies with some insurance company authorized to do business in New Mexico to insure to each employee of the Highway Department engaged in hazardous occupations who may be injured by accident arising out of and in the course of his employment or in case of his death being directly caused thereby, then to his dependents, compensation in the manner and amount and at the times provided by law for compensation to injured workmen under the Workmen's Compensation Law.
"The premium on such policies shall be paid out of the State Road Fund and disbursed as other moneys in said fund are disbursed."
We cannot assume that the state has assumed a liability which it does not intend to discharge. The fact that it has made provision for discharging a liability to its most numerous group of employees and has not made specific provision to meet its obligations to other groups of employees does not throw any light on the question.
Since the state is defined as an "employer" under the act, and has assumed a liability to pay, there seems no reason to suppose it was intended by section 26 to do more than make provision to discharge its liability. That employees of the highway commission are employees of the state cannot be questioned. Looney v. Stryker, 31 N.M. 557, 249 P. 112, 50 A.L.R. 1404.
The phrase "extra-hazardous occupations" in section 2 of the act has a definite meaning. It means such extrahazardous occupations as are therein "named or described." It is for injuries of its employees arising out of and in the course ofsuch occupations that the state has agreed to pay compensation as provided in the Workmen's Compensation Act.
The majority ignores the rule of statutory construction governing such situations as follows: "In the absence of anything in the statute clearly indicating a contrary intent, where the same word or phrase is used in different parts of a statute, it will be presumed to be used in the same sense throughout; and where its meaning in one instance is clear, this meaning will be attached to it elsewhere." 59 C.J. Statutes, § 597.
Having found in section 2 of the Workmen's Compensation Law that "extra-hazardous occupations" are limited to those "herein named or described," it seems to us to be straining a point to say that in one part of the act extra-hazardous employment means something different from the same words elsewhere employed and definitely defined.
The majority say that appellant's contention is that the authority for the contract in question is found in Laws 1927, c. 100, not in the present statute. They accept this contention as sound without giving any reasons therefor. We assume that this acquiescence must be upon the theory that the re-enactment of a statute in the same or substantially the *Page 491 same language as the original statute is considered as a continuance of the language so repeated and not a new enactment. That is a well-recognized rule of statutory construction, but inapplicable in the case at bar. It is true that section 26 of the present statute is substantially in the same language as chapter 100, Laws 1927. However, the intention of the Legislature in enacting that chapter is manifest in the title, "An Act to Extend the Provisions of the Workmen's Compensation Law to Employees of the State Highway Department." In effect, the provisions of this enactment were written into the Workmen's Compensation Act just as though it had been added as a new section to chapter 83, Laws 1917. The Legislature of 1929, when it rewrote the Workmen's Compensation Law and put it out as chapter 113 of the acts of that session, comprehended that it occupied no position of isolation and in fact incorporated it as section 26 of that law. So viewed, the rules of statutory construction heretofore adverted to would apply with equal force when considering the meaning of the phrase "extra-hazardous occupations" when used in different parts of what must be considered as virtually one law governing workmen's compensation.
Furthermore, we may not be content to view the language of chapter 100, Laws 1927, as having been repeated in section 26, c. 113, Laws 1929, without considering its context. When we view said chapter 100, Laws 1927, as virtually an amendment to chapter 83, Laws 1917, our inquiry should be whether said chapter 83, Laws 1917, has been re-enacted in substantially the same language. The argument of the majority contained in the quotation heretofore given, would be more plausible but for the 1929 amendment which expressly makes the state liable to pay compensation under the act, so, if section 26 has a meaning in its new setting, different from the same language in its former setting, it cannot fairly be said that repeating the same language is no more than a continuation thereof from the older enactment.
It is one of the rules of statutory construction that a re-enacting statute must be construed in harmony with intermediate amendments of the original statute. 59 C.J. "Statutes," § 624. Finding chapter 83, Laws 1917, amended in 1929, so as to cast a new light upon chapter 100, Laws 1927, and a new legislative product resulting, we deem the product more than a re-enactment, so that we cannot accede to appellant's contention that chapter 100, Laws 1927 affords authority for the contract in question which was executed in 1930. Said chapter 100, Laws 1927, had dropped out of the picture when the contract was entered into.
We do not place much store by the argument that the Legislature of 1927 intended a comparatively inconsequential result as measured by the appellant's failure to see more in the original Workmen's Compensation Law than the commission bridge builders as beneficiaries of insurance policies. Doubtless some of the employees of the highway commission were also engaged in "workshops where machinery is used" and in "quarries" as defined as a place where stone, clay, sand, gravel, or other solid material is extracted from the earth, and in "engineering works" as defined to cover, among other things, "any work in the *Page 492 construction, alteration, extension, repair or demolition of a bridge, jetty, dyke, * * * underground conduit * * * laying, repairing or renewing underground pipes and connections, * * * and any work in grading or excavating where shoring is necessary or power machinery or blasting powder, dynamite or other high explosives are in use," and the general provision, "all employment wherein a process requiring the use of any dangerous explosives or inflammatory materials is carried on," would doubtless have employed some phases of "road building and construction."
However that may be, it would not be proper for the courts to supply an authority not given or to broaden a given authority.
Being unable to yield acquiescence to a construction deemed unsound, I dissent.