dissenting.
The simple question posed by the case is whether the work of the school janitor is incidental to the operation of a school by a school district or is a separate occupation, not of the employee, but of the employer. The decision of the majority has assigned no reason why the work of the janitor is not incidental to the employer’s business of operating a school. Instead, the decision is based on a construction of the statutes in exact contradiction to the legislative intent expressed therein in clear and concise language.
*341OES 656.034 grants to all employers, both private and public, engaged in non-hazardous occupations the right to contribute to the act upon such occupation. If such election is made, the employer and all his workmen in such occupation shall be subject to the act.
The statutory provision decisive of this case is paragraph (4) of OES 656.022, which reads as follows:
“It is the purpose of this section that an occupation and all work incidental thereto and all workmen engaged therein shall be wholly subject to or wholly outside the provisions of OES 656.002 to 656.590.”
The legislative intent is clear that an employer engaged in a separate occupation, whether hazardous or non-hazardous, or partly hazardous and partly nonhazardous, and all employees engaged in that occupation and all employees engaged in work incidental to that occupation, shall either be all subject to the act or all excluded from the act.
Any election on the part of an employer attempting to divide a single occupation making a portion of his employees engaged in that occupation subject to the act while excluding from the act the remainder of his employees engaged in the same occupation is expressly prohibited.
It is then obvious that if the janitor is merely performing work incidental to the occupation of School District No. 3, the district could not by an election make the janitor subject to the act and exclude from the act all other employees in the same occupation. Whether the filing of such an unauthorized election makes all of the employees engaged in the occupation subject to the act or is ineffective to bring any employee under the act is a question which the majority have not deemed necessary to decide at this time.
*342This case was submitted upon an agreed statement of facts which included the following:
“* * * that the School District employed, in addition to the janitor, one principal, seven teachers, three bus drivers, two cooks and a clerk, all of whom were engaged in operating the school at one school building in Arlington. * * *” (Italics supplied)
The parties clearly agreed that the occupation in which the School District was engaged was the operation of a school. In my opinion, the work of the school janitor was either a part of or at least incidental to that occupation.
The majority rest their decision on the proposition that because the statute ORS 656.032 recognizes that a public employer may be engaged in a hazardous occupation, that all hazardous occupations engaged in by a public employer are separate. The opinion states that the operation of school buses is a hazardous occupation and then assumes without stating any basis for such assumption, that the operation of school buses is a separate occupation. In addition, the majority state that if a school district operated a printing plant using power-driven machines “it would be engaged in a separate hazardous occupation.” The operation of a printing plant would be hazardous, (ORS 656.084 (1)), but if used to teach students the printing trade, by what stretch of the imagination could it be separate? The majority would hold that the manual training teacher would be engaged in a separate occupation if any power-driven machines were used in his department, not because he is engaged in a separate occupation of his employer, but because his work is hazardous. Thus, the teaching staff of the same school, all engaged in the employer’s single occupation of furnishing education to the students, would be partly subject to the *343act and partly excluded from the act. This conclusion is in exact contradiction to the express language of ORS 656.122 (4) that all workmen engaged in an occupation of the employer “shall be wholly subject to or wholly outside” the act.
The majority concludes by reasoning that because the teaching of printing or the operation of buses is a separate hazardous occupation of the employer, the work of the janitor is a separate occupation of the employer. The furnishing of transportation may be a separate occupation of the employer not because it is hazardous but because it is separate in fact. At least it would be easier to demonstrate that the furnishing of transportation was a separate occupation of the employer than it would be to demonstrate that the work of the man who cleans the school rooms is not merely incidental to the employer’s occupation of furnishing instruction to the students.
It should be remembered that the provisions of the act being interpreted here, apply alike to public and private employers. The only distinction made in the statute between public and private employers is contained in ORS 656.080 which provides that if a public body is engaged in a hazardous occupation it may not reject the provisions of the act. All other provisions of the act pertaining to coverage apply to private and public employers alike.
The statutes recognize that private employers may be engaged in separate occupations, some hazardous, some non-hazardous and some partly hazardous and partly non-hazardous in exactly the same manner that public employers may be so engaged. When we come to apply the reasoning of the majority opinion to private employers we will be faced with an extremely puzzling problem.
I dissent.