ON THE MERITS
Robert Y. Thornton, Attorney General and Ray H. Lafky, Assistant Attorney General, of Salem, for appellant. Winslow & Winslow, of Tillamook, for respondent. moallister, j.This is an action brought by Yirgie Manke, as administratrix of the estate of her deceased son, Ronald Manke, against the defendants, Nehalem Logging Co. and Reinhold Eanser, to recover damages for the alleged wrongful death of said decedent. The complaint alleges in substance that the defendants owned and operated a shingle mill in Tillamook county, including a mill pond in connection therewith; that on June 22, 1955, Ronald Manke began to work for defendants upon and about said mill pond and on the same date accidentally fell into said pond and was drowned; that Ronald was then 17 years of age; that defendants permitted Ronald to perform said work “without any permit or certificate of any kind” and that his death •was the result of the negligence of the defendants as more particularly alleged in the complaint.
Pursuant to the provisions of ORS 656.582,(1) the *217Attorney General, at the request of the State Industrial Accident Commission, defended the action on behalf of both defendants, alleging in substance in a second amended answer that the shingle mill was being operated solely by the defendant Reinhold Fauser; that Ronald was employed by said defendant and not by the defendants jointly; that both defendants were subject to the Workmen's Compensation Law and had fully complied with all of its provisions; that regardless of whether Ronald was employed by either one or both defendants, the sole remedy of plaintiff is under the Workmen’s Compensation Law and that the complaint should be dismissed.
No formal reply was filed to the second amended answer but the cause was tried as if the affirmative allegations of the second amended answer had been denied by the plaintiff. The parties stipulated that the issues should be tried by the court without a jury and after a trial, during which most of the facts were agreed upon, the court found that the employment of Ronald was unlawful and that as a consequence thereof, the remedy of the plaintiff was not exclusively under the Workmen’s Compensation Law. From the order dismissing the answer filed by the State Industrial Accident Commission, this appeal was taken on behalf of both defendants.
The question presented by this appeal is whether at the time of his death Ronald was subject to the Workmen’s Compensation Law and if so, whether the sole remedy on account of his death is under that act.
The Workmen’s Compensation Law, which was originally enacted by Oregon Laws 1913, ch 112, is now contained in ORS 656.002 to 656.590 and will be hereinafter referred to as the “act.” We will refer *218to the pertinent provisions of the act in effect at the time of Ronald’s death.
ORS 656.002 (15). “‘Workman’ means any person who engages to furnish his services, subject to the direction and control of an employer.”
It will be noted that the above definition of workman is sufficiently broad to include both minors and adults.
ORS 656.122. “If an employer is subject to ORS 656.002 to 656.590 as to any occupation, all workmen employed by him in such occupation are subject to ORS 656.002 to 656.590 as workmen, but not otherwise.”
In view of the foregoing sections of the act, it is obvious that a workman, regardless of his age, is subject to the act if his employer is subject to the act as to the occupation in which the workman is engaged at the time of his injury. The intention of the legislature that the act should provide an exclusive remedy for injured workmen, except as otherwise specifically provided, is also clearly expressed in ORS 656.152, the material portions of which read as follows:
“(1) Every workman subject to ORS 656.002 to 656.590 while employed by an employer subject to ORS 656.002 to 656.590 who, while so employed, sustains personal injury * * * by accident arising out of and in the course of his employment and resulting in his disability, or the beneficiaries of such workman, if the injury results in death, are entitled to receive from the Industrial Accident Fund the sums specified in ORS 656.002 to 656.590. * #
“(2) The right to receive such sums is in lieu of all claims against his employer on account of such injury or death, except as otherwise specifically provided in ORS 656.002 to 656.590. • * *”
*219It will be helpful to consider briefly the legislative history of the act and particularly of the foregoing provisions. The broad definition of workman contained in OES 656.002 (15) was included in the original act although in slightly different language. But the original act expressly excluded from its coverage minors employed under the minimum age prescribed by law. This exclusion was contained in the last sentence of section 11 of the original act, which read as follows:
“All workmen in the employ of persons, firms or corporations who as employers are subject to this act shall also be subject thereto; provided, however, that any such workman may be relieved of the obligations hereby imposed and shall lose the benefits hereby conferred by giving to his employer written notice of an election not to be subject thereto in the manner hereinafter specified. Any workman of the age of 16 years and upwards shall himself exercise the election hereby authorized. The right of election hereby authorized shall be exercised on behalf of any workman under the age of 16 years by his parent or guardian. This act shall not apply to workmen of less than the minimum age prescribed by law for the employment of minors in the occupation in which such workmen shall be engaged.”
The last sentence of the above section was repealed by Oregon Laws 1927, ch 312, § 1. By this repeal the legislature clearly expressed the intent that all minors should be covered under the act regardless of age.
That portion of section 11 providing that all workmen, including all minors, could by giving notice to the employer elect not to be subject to the act was repealed by Oregon Laws 1935, ch 61, § 1. The repeal of these two portions of section 11 left in effect only that part of the first sentence preceding the proviso which part *220in slightly altered form is now ORS 656.122 quoted above.
Plaintiff contends that she is granted an election to sue Ronald’s employer under ORS 656.132, which reads as follows:
“(1) A minor working at an age legally permitted under the laws of this state is considered sui juris for the purpose of ORS 656.002 to 656.590. No other person shall have any cause of action or right to compensation for an injury to such minor workman, except as expressly provided in ORS 656.002 to 656.590, but in the event of a lump sum payment becoming due under ORS 656.002 to 656.590 to such minor workman, the control and management of any sum so paid shall be within the jurisdiction of the courts as in the case of other property of minors.
“(2) If an employer subject to ORS 656.002 to 656.590 in good faith employed a minor under the age permitted by law, believing him to be of lawful age, and the minor sustains an injury or suffers death in such employment, the minor is conclusively presumed to have accepted the provisions of ORS 656.002 to 656.590. The commission may determine conclusively the good faith of such employer unless the employer had in his possession at the time of the accident resulting in such injury or death a certificate from some duly constituted authority of this state authorizing the employment of the minor in the work in which he was then engaged. Such certificate is conclusive evidence of the good faith of such employer.
“(3) If the employer holds no such certificate and the commission finds that the employer did not employ such minor in good faith, the minor is entitled to the benefits of ORS 656.002 to 656.590, but the employer shall pay to the Industrial Accident Fund by way of penalty a sum equal to 25 percent of the amount paid out or set apart under *221such, statutes on account of the injury or death of such minor, hut such penalty shall not exceed $500.”
Paragraph (1) of the above section was included in the original act of 1913 and consequently was in effect both when the act excluded minors employed under the age prescribed by law and also after such exclusion was repealed. Paragraph (1) does not purport to exclude any minor from coverage under the act nor to grant to any minor an election to sue his employer. There is no reason to expand by implication the meaning of this language to exclude minors from coverage under the act when another provision of the same act expressly excluded from its application minors “of less than the minimum age prescribed by law.” This paragraph merely prescribed which minors shall be considered sui juris and thus able to deal with the commission without the aid of a guardian except to receive a lump sum payment. In construing the provisions of the Idaho Workmen’s Compensation Law, in language almost identical to Paragraph (1) of ORS 656.132, in Lockard v. St. Maries Lumber Co., 76 Ida 506, 285 P2d 473 the court said:
“* * * Appellant urges that the last sentence of the above section providing that a minor working at an age legally permitted shall be deemed sui juris for the purpose of the act, limits the application of the act to minors so working. This is not a correct interpretation of the provision. It is clearly intended to mean that a minor legally permitted to work may pursue his remedies under the act without a guardian and without let or hinderance of any other person, except in the case of a lump sum payment. * * *”
In construing a similar provision of the Workmen’s Compensation Law of Arizona, the supreme court of *222that state said in S. H. Kress & Co. v. Superior Court of Maricopa County, 66 Ariz. 67, 182 P2d 931:
“The respondent contends that this describes the minors who are subject to the Act. Actually its plain wording shows that what this section does do is to provide that legally employed minors can have their own cause of action before the Board and collect their own money and need a guardian only for lump sum settlement. We read the statute to mean that by reverse implication illegally employed minors must be represented by a guardian before the Industrial Commission at all times. This section does not delineate which minors are subject to the Act, but instead describes how the legally employed minors as opposed to those ‘illegally employed’ shall enforce their remedies under it. * * *”
Paragraphs (2) and (3) of ORS 656.132 were added to the act by Oregon Laws 1921, ch 311. The legislative intent as expressed in these paragraphs is not entirely clear and in some respects the language is now obsolete. However, paragraph (2) does not purport to exclude any minor from coverage under the act nor to grant to any minor an election to sue his employer. This paragraph merely provides that under certain circumstances a minor employed under the age permitted by law is “conclusively presumed to have accepted the provisions” of the act. As we have heretofore pointed out, when this paragraph was enacted in 1921 the law gave all workmen, including all minors, upon entering the employment of an employer subject to the act the right to elect not to become subject to the act. The provisions of the act granting this right of election were repealed by Oregon Laws 1935, ch 48, § 6, thus rendering obsolete the language of paragraph (2) referring to an acceptance of the provisions of the act by an injured workman. If paragraph (2) was *223intended to include under the act some minors who were excluded under the last sentence of section 11 of the original act the repeal of that sentence also rendered paragraph (2) obsolete.
Paragraph (3) likewise does not purport to exclude any minor from coverage under the act. Paragraph (3) clearly authorizes the commission to impose a penalty upon an employer who in bad faith employs a minor under the age permitted by law. This paragraph also clearly preserves to the minor his right to compensation but neither by express language nor by reasonable implication does this paragraph grant to any minor an election to sue his employer.
It is apparent from a reading of the act as a whole that the legislature never intended that a minor employed under the age permitted by law should have a right of election to take under the act or to sue his employer. In the several instances where the legislature has in unmistakable language granted to an injured workman, or if death results from the injury, his beneficiaries, an election to take under the act or seek a remedy against his employer or a negligent third person, the legislature has with meticulous care safeguarded the rights of the workman or his beneficiaries. In those instances the law provides that the workman may receive the benefits of the act and still bring the action for damages against the delinquent employer or negligent third party. ORS 656.312. If the amount recovered is more than the compensation benefits, the workman may retain the excess and if the amount recovered is less the commission is required to make up the deficiency so that the workman receives the full benefits under the act. ORS 656.324 (4) provides that if the injured workman elects to sue his delinquent employer the common law defenses of contributory *224negligence, assumption of risk and fellow-servant rule are not available to the employer. In other words, neither the injured workman nor his beneficiaries are required to elect at their peril whether to take under the act or sue the delinquent employer or a negligent third party.
However, none of these beneficent provisions are made applicable to a minor employed under the age permitted by law. If such a minor has an election under OES 656.132 (3), he apparently would be required to elect at his peril whether to take under the act or to sue his employer. If a minor elected to sue his employer and failed to recover, he would receive no compensation whatever. It seems obvious that if the legislature had intended such a minor to have an election, it would have extended to him the same protection and privileges in exercising his right of election that it provided for adult workmen.
In Bigby v. Pelican Bay Lbr. Co., 173 Or 682, 147 P2d 199, Mr. Chief Justice Bailey delineated with care the exceptions which permit an action to be brought by an employee or his beneficiaries against his employer, but did not include as one of them a minor worldng under the age permitted by law. We quote from the opinion in the Bigby case:
“When a workman has become subject to the act he can not recover from his employer for injuries sustained by him, unless the facts give rise to one of the exceptions specified in the act: Lull v. Hansen-Hammond Co., 126 Or 450, 270 P. 402; Jenkins v. Carman Manufacturing Company, 79 Or. 448, 155 P. 703. The exceptions which permit action to be brought by an employee or his beneficiaries against his employer are these: (1) If an employer engages in one of the hazardous occupations enumerated in § 102-1725, O.C.L.A., without *225first giving notice to the accident commission of his intention to engage in snch business, he ‘shall not be entitled to’ the protection of the act: § 102-1722, O.C.L.A. (2) An employer who is in default in payment of his contribution to the accident fund ‘shall be liable to the injured workman, or to those claiming under him’ ” § 102-1742, O.C.L.A. (3) Action may be brought against an employer whose deliberate intention causes injury or death of a workman: §102-1753, O.C.L.A. * * •”
There is nothing in our opinion in this case which conflicts with King v. Union Oil Company, 144 Or 655, 24 P2d 345, 25 P2d 1055, which is cited by plaintiff. In the King case a minor ten years of age was employed by Linn county during the school vacation to carry water for drinking purposes to a crew of men constructing a market road. The minor was burned on August 9, 1930, while giving a drink of water to the driver of a tractor which was then being filled with gasoline by an employee of the Union Oil Company. The work in which the county was engaged was one of the hazardous occupations enumerated in the act and the county when engaged in such work was subject to the act in the same manner as other employers. After an application for compensation had been accepted and compensation paid for both temporary total disability and for permanent partial disability, the father of the minor was appointed as guardian of his son and brought an action for damages against the Union Oil Company. In the original opinion it was held first, that because the injury occurred at the plant of his employer, the workman had no right of election to sue the negligent third party and second, that if a right of election ever existed it was waived by the receipt of full compensation under the act. In a petition for rehearing it was contended that the act applied only to such workmen as could *226be legally employed, that a ten year old conld not be legally employed under any circumstances and that such minor was therefore not subject to the act. The court disposed of this contention by stating that it had been “unable to find any law which made illegal the employment of David King in the work he was performing at the time of the accident.” The court did not discuss the effect of the repeal of that part of the original act which excluded from the coverage of the act minors of less than the minimum age prescribed by law.
The plaintiff has again cited the decisions from other courts which were cited in support of the petition for rehearing in the King case. We have again examined those cases but believe they are not in point in view of the different statutory provisions involved and the legislative history of our act with regard to the coverage of minors. When the legislature decided in 1927 to extend the act to all minors it did so by the simple method of repealing the provision that had excluded from the coverage of the act minors of less than the minimum age prescribed by law.
In the case of Lockard v. St. Maries Lumber Go., supra, the supreme court of Idaho said:
“Minors not being excepted from the provisions of the compensation act by the legislature, it is not within the prerogative of this court to except them by construction of the act.
ÍÍ* * * # *
“The question is not in any way affected by the Child Labor Law. That law was enacted in 1907, ten years prior to the compensation law. It is not referred to or in any way amended or modified by the later enactment. The Child Labor Law provides appropriate penalties for its violation. If such penalties are not adequate, it is for the legislature *227to increase them or otherwise provide for enforcement. It is not for this court by construction of an unrelated law to secure the enforcement of the Child Labor Law. * # *”
Although we have held that Ronald was subject to the act, we do not imply that Ronald’s employer may not have violated the provisions of the child labor law, upon which question we express no opinion. We point out, however, that the child labor law is not impaired in the slightest degree by this decision and should be enforced whenever there is a violation thereof.
Our conclusion in this case is also supported by the following cases from other jurisdictions: Basi v. Howard Mfg. Co. (1920), 109 Wash 524, 187 P 327; Noreen v. William Vogel & Bros. (1921), 231 NY 317, 132 NE 102; Pierce’s Case (1929), 267 Mass 208, 166 NE 636; Mellen v. H. B. Hirsch & Sons (1947), 159 F2d 461.
The judgment is reversed and the cause remanded with instructions to enter judgment for the defendants.
ORS 565.582. “(1) If an employer subject to ORS 656.002 to 656.5901 is made defendant in any personal injury litigation brought against him by a workman in his employ, or by the guardian, personal representative or beneficiary of such workman, on account of injuries received by such workman arising out of and in the course of his employment by such employer, and it appears that the plaintiff’s sole right of recovery is under ORS 656.002 to 656.590, the commission shall request the Attorney General to defend the employer in such litigation. The Attorney General shall cooperate with the commission in such defense and represent the employer as attorney.
“(2) If the Attorney General files an answer in such litigation alleging the defense that the plaintiff’s sole remedy is under the workmen’s compensation law, the filing of such answer shall suspend all further proceedings in such litigation other than the trial of the defense that the plaintiff's right of recovery is under the workmen’s compensation law, until such defense has been finally determined by the court. An appeal to the Supreme Court from the order or judgment finally disposing of such defense may be taken by either party as in other cases.”