In this case the claimant was injured while engaged in tamping ties upon the appellant’s track, which was used both for State and interstate commerce. While thus tamping the ties a stone flew up and injured his eye, for which injury this claim is made. It is assumed by all counsel that the claimant was injured while engaged in interstate commerce, ‘and had this injury resulted from defendant’s negligence the claimant would have a right of action under the Federal Employers’ *357Liability Act. The claim was allowed by the Compensation Commission with one dissenting vote, upon the ground apparently that inasmuch as the accident was not claimed to have been caused by any negligence on the part of the defendant the act of Congress had not assumed to regulate the liability of the defendant, and for such reason the Compensation Law of the State was applicable thereto.
By section 114 of the Compensation Act it is provided that the provisions of this chapter shall apply to a workman engaged both in intrastate and interstate commerce “for whom a rule of liability or method of compensation has been or may be established by the Congress of the United States, only to the extent that their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign commerce.” Congress has assumed to legislate upon the liability of masters to their servants where the masters are engaged in interstate commerce. (35 U. S. Stat. at Large, 65, chap. 149, Laws of 1908, as amd. by 36 id. 291, chap. 143, in 1910.) These acts provide for a liability in excess of common-law liability. Upon the principle of expressio unius exclusio alkerius the acts constitute a denial of liability except in the cases mentioned. In any event a rule of liability is estab - lished by Congress directly within the terms of section 114 of the Workmen’s Compensation Law, and the work in which the claimant was engaged was not severable from interstate commerce. Section 114 seems to contemplate cases where Congress had legislated either as to a rule of liability, or as to a method of compensation. It seems to have been within the mind of the Legislature that Congress might hereafter pass a Workmen’s Compensation Act. Having limited, however, the effect of this Compensation Act to cases In which either a method of compensation or a rule of liability had been established, the intent would seem clear to exclude all cases where the party was engaged in work not severable from interstate commerce, as long as the. rule of liability of master to servant, where the work was performed in connection with interstate commerce, had already been prescribed by Congress.
It has been held in Illinois, which apparently did not have this provision in its Compensation Act, that where the accident *358happened without negligence of the employer there was no conflict between the State and Federal jurisdiction; that the Federal act attempted to regulate interstate commerce, while the State act was merely a method of compensation operative only after the act was accomplished. (Staley v. Illinois Central R. Co., 186 Ill. App. 593.) If this be sound law, of which I have grave doubts, nevertheless, the limitation contained in section 114 of our Compensation Act to my mind creates a different rule.
Nor can it be claimed that the rule of liability established by the Federal act is simply a rule of liability in case of negligence, so that as far as a State compensation act authorizes recovery for injuries without negligence, it does not conflict with the Federal Liability Law. This cannot be held in the first place as heretofore indicated, because of the limitation in the act itself where either a rule of liability is created or a method of. compensation by the Federal government. But also to my mind the distinction is impracticable. A party injured could then claim compensation whether his injury was the result of the negligence of the employer or without negligence, and it would be unreasonable to compel the employer to prove his own negligence to show that the case was one within which the rule of liability was established by the Federal law. The result would be in most cases to give to the injured party an option to claim under the Compensation Act, or under the Federal Liability Law. Apparently to prevent just this situation, as well as to avoid antagonism in a field already occupied by the Federal statute, section 114 was inserted into this act denying relief to one engaged in interstate commerce, in case either a Federal liability law existed or a Federal compensation act.
As far as the constitutionality of the Compensation Law is challenged, at the March term a decision was handed down by this court affirming its constitutionality, so that the question is not now open for our consideration. We are of the opinion that the appellant by filing a bond has not waived any objection to the unconstitutionality of the act, because in the first place the penalties for not filing a bond, if one be required, are so great as to make the filing of the same necessary for the protection of the appellant, and in the second place, within section 114 of *359the Compensation Law the defendant is clearly liable under the act where the duties of an employee are clearly separable from interstate commerce. For the reason stated the determination should be reversed.
Howard, J., concurred.
Award affirmed.