I am unable to agree with the majority opinion in the interpretation and application of § 2 *Page 85 of chapter 41 of the Laws of 1939, p. 121 (Rem. Rev. Stat. (Sup.), § 7675), to the situation presented by the record in this case.
The respondent, who made claim for compensation under the workmen's compensation act, was employed by C.H. Turner to do work in the construction of a dwelling house, and, while doing so, was injured. Turner was not engaged in building construction work by way of trade or business, but the class of work he employed the respondent to do was extrahazardous, as defined by the act, and its essence was the personal labor of respondent.
I think it is quite plain from a reading of the original act of 1911, chapter 74, p. 345, that the legislature contemplated that, to be a beneficiary thereunder, a workman must have been in the service of an employer who was engaged in having extrahazardous work done, as defined by the act, as an occupation or business, and that, if one were employed by a person situated as was Mr. Turner in this case to work in the construction of his dwelling house, he would not be entitled to compensation if he were injured while so doing because of the then definition of who was an employer, § 2, p. 347:
"Except when otherwise expressly stated, employer means any person, body of persons, corporate or otherwise, and the legal personal representatives of a deceased employer, all while engaged in this state in any extra hazardous work."
A workman was defined, same section and page:
"Workman means every person in this state, who, after September 30, 1911, is engaged in the employment of an employer carrying on or conducting any of the industries scheduled or classified in section 4, whether by way of manual labor or otherwise, and whether upon the premises or at the plant or, he being in the course of his employment, away from the plant of his employer: .. ."
When one considers the nature and scope of the act, together with these definitions, and those it contemplated should bear the greater portion of the burden of the cost of accidents and who were required to contribute to the accident *Page 86 fund therein provided, it seems clear that the employer class was limited to those who were engaged in some kind of trade or business classed as extrahazardous, and excluded one who might have gone outside of his regular trade or business and employed another to do work for him even though such work were of a character defined to be extra-hazardous. The reason for this noninclusion was, no doubt, because of administrative difficulties in knowing all who might employ workmen and ascertaining the amount of their contributions and collecting them, as well as the practical difficulty every person would face, when he wanted to have work done for himself, in determining, at his peril, whether or not he came under the act.
The legislature, at its session in 1921, by § 2, chapter 182, p. 721, amended the section containing the foregoing definition of employer to read as follows:
". . . except when otherwise expressly stated, employer means any person, body of persons, corporate or otherwise, and the legal personal representatives of a deceased employer, all while engaged in this state in any extra-hazardous work or whocontracts with another to engage in extra-hazardous work." (Italics mine.)
The legislature thereby added to the former law the italicized words.
In view of the evident purpose of the act, one pauses to wonder why these words were added unless it were to broaden the act and include as an employer one situated as is Mr. Turner in this case. That seems to be the plain import of the words added.
By § 1 of chapter 132 of the Laws of 1929, p. 325, the section containing the definitions of employer and workman was again amended, but no change was made in the definition of employer. Such changes as were made with reference to the definition of workman are immaterial.
In 1933, this court, by a division of five to four, decided theCarsten case. The majority stressed the administrative and other difficulties to be encountered if Carsten's employer were to be regarded as one of the employer class defined *Page 87 by statute, and did not discuss or give any effect to the words "or who contracts with another to engage in extra-hazardous work." It thus was able to, and did, arrive at the conclusion that a workman, to come under the act, must be employed by one who is engaged in an industry classified as extrahazardous. This case was followed by the Dalmasso and Jannak cases, decided in April, 1935.
By § 2 of chapter 41 of the Laws of 1939, p. 122, the legislature further amended the same section of the original act as amended by the acts of 1921 and 1929, as follows:
"Except when otherwise expressly stated, employer means any person, body of persons, corporate or otherwise, and the legal personal representatives of a deceased employer, all while engaged in this state in any extra-hazardous work, by way of trade or business, or who contracts with one or more workmen, the essence of which is the personal labor of such workman or workmen, in extra-hazardous work."
It will be seen that the industrial idea so apparent in the act of 1911, when considering who should be classed as an employer, was intensified by the new words "by way of trade or business," and the part of the statute not given effect in the Carsten case was reenacted and added to by the following: "or who contracts with one or more workmen, the essence of which is the personal labor of such workman or workmen, in extra-hazardous work."
The majority say, however, if I read the opinion correctly, that, as this language is substantially the same in meaning as that not given effect in the Carsten case, it must be assumed that the legislature, in reenacting it by the 1939 act, had in mind the construction given it in the Carsten case. If the statute before the court in the Carsten case could have been considered as having more than one meaning or if it were ambiguous and the legislative intent had to be determined, then such construction of it should have been given by the court as would have made it harmonize with the general purpose of the whole act. But the words added to the original enactment were not ambiguous nor did they give the statute more than one meaning. The *Page 88 court did not attempt to ascribe any meaning to those words, but gave them no effect and applied the statute without regard to them.
With this situation before the legislature, it seems strange indeed that it would deliberately reenact the definition of employer and not only intensify the industrial idea in the first part of the definition, but also, instead of stopping there and thereby approving the rule of the Carsten case, continue and reenact the words, with further amplification, which had been in the acts of 1921 and 1929. It seems to me that the legislature, by this enactment, in place of indicating an approval of theCarsten case and the others following it, very clearly indicated that its intention was to define two classes of employers whose employees are protected by the industrial insurance act: (1) one who is engaged in any extrahazardous work by way of trade or business, and (2) one who contracts with workmen to do personal, extrahazardous work.
I recognize the administrative and other difficulties confronting the department of labor and industries and those who may employ others to work for them in extrahazardous work, as defined by statute, if this two-fold aspect of the definition of employer is the law. But this is not a judicial problem — it is a legislative one, and, if the legislature has seen fit to broaden the scope of the employer class beyond that contemplated by the original act of 1911, it is within its province to do so, and it is not for us, by construction, to make the statute read what we might think it should or to follow cases so doing and which have been met by a reenactment of the same statute. I am a firm adherent to the rule of stare decisis and believe this court should as a rule follow its former decisions wherever applicable, particularly those in which statutes have been construed, to the end that our case law be stable and constant; but, when the legislature, acting within its province, declares a rule of law, former decisions to the contrary must yield. The judgment should be affirmed.
MILLARD and MALLERY, JJ., concur with GRADY, J. *Page 89