Section 19, chapter 187, 1937 Session Laws, page 317, subsection 5(a) requires that the individual to be an independent contractor must be free from control or direction over the performance of his services "both under his contract of service and in fact." (emphasis mine.) The board made the following rule of law:
"That the earnings of all 'route carriers' for the petitioners, Twin Falls News Publishing Company and the Idaho Times Publishing Company, and each of them, who are operating under contracts like those under which Wayne Cox and Claude Norton operated and which are set forth in the foregoing Findings of Fact, must be reported to the Unemployment Compensation Division of the Industrial Accident Board by said petitioners and contributions thereon must be made by said petitioners on all 'route carriers' except on those of such who are first shown to the satisfaction of the Board to have been and will continue to be free from direction or control over the performance of their services, both in law and in fact; and are customarily engaged in an independently established *Page 731 trade, profession or business; and that an order to that effect should be given, made, filed and entered herein," evidently indicating that the board was not satisfied that the employer had shown that the carriers were free from control both under the contract and in fact. Nevertheless, the board refused to permit appellants to show whether or not there was control in fact:
"Q. I will ask you further, Mr. Westergren, whether or not yourself or either of the two companies, the petitioners here, exercise any control or direction over the performance of the services performed by the motor carriers?
"MR. SUPPIGER: Is that competent and proper, Mr. Chapman? Isn't the question as to whether they have any right to exercise. Is that not the question?
"MR. CHAPMAN: The way we view the situation as to the inquiry made, the contract, of course as to that, speaks for itself but I think we have a right to show under this contract they did not exercise any control in fact.
"MR. SUPPIGER: It is the consensus of the board that the question is not a proper one. The inquiry is as to their right under the contract which you have introduced and which we understand is the controlling instrument."
The case should be reversed and remanded for the purpose of having the board hear such evidence as the appellants desire to offer as to whether or not there was control in fact. (PaulDehlin v. Sid Shuck, syl. 1, 124 P. 2 244 63 Idaho 620; Feulingv. Farmers' Co-operative Ditch Co., 54 Idaho 326,31 P.2d 683; Nistad v. Winston Lumber Co., 59 Idaho 533,85 P.2d 236.)