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, and then only when such employer and any of his workmen working only in this state, with the approval of the state liability board of awards, and so far as not forbidden by any act of congress, voluntarily accept the provisions of this act by filing written acceptances, which, when filed with and approved by the board, shall subject the acceptors irrevocably to the provisions of this act to all intents and purposes as if they had been originally included in its terms, during the period or periods for which the premiums herein provided have been paid. Payment of premium shall be on the basis of the payroll of the workmen who accept as aforesaid." The question with which we must deal grows out of the fact that the congress of the United States has not established a rule of liability or method of compensation for all employers and their employes engaged in interstate and foreign commerce. The Federal Employers' Liability Act, so-called, is limited, as will be hereinafter pointed out, to common carriers of interstate commerce by railroads and their employes. Carriers of interstate commerce by than those by railroad are not within the terms of that act. The question which arises then is as to the meaning of the words "or may be established by the congress of the United States" as used in Section 1465-98. Is the word "may" used in the sense of potentiality, as designating the power of congress; or in the sense of futurity, with the word "hereafter" understood, i. e., in the sense of "shall" used as a part of a future verb rather than as an expression of command? The courts of the different states have reached diverse conclusions upon this question. Thus, it has been held in West Virginia that the word "may," in a section almost if not quite exactly like Section 1465-98 of the Ohio workmen's compensation act, is used in the first of these two senses. So that an employe of an interstate gas pipe line company engaged in promoting the interstate transportation of the gas is one of those to whom such a section relates, and is therefore in respect of his employment not subJect to the West Virginia workmen's compensation law, in the absence of a voluntary election by him and his employers, and then only to the extent to which his connection with intrastate work may and shall be clearly separable and distinguishable from interstate commerce. See Suttle vs. Hope Natural Gas Co. (W. Va.), 97 S. E., 429; The same conclusion seems to have been reached by the supreme court of Washington in State v. Postal Telegraph Cable Co., 172 Pac., 902. The decisions in both these jurisdictions, strangely enough, do not argue the point but assume that the connotation of potentiality is the natural signification of the word "may." On the contrary, New York, in Jensen v. Southern Pacific Co., 215 N. Y., 514, (reversed on other grounds, 244 U. S., 205), in a carefully considered opinion so far as this point is concerned, reached the opposite conclusion. As Miller, J., says at page 522: "The legislature said that it did not intend to enter any field from which it had been or should be excluded by the action of the congress of the United States. But it is said that congress may at any time regulate employments in interstate or foreign commerce, and that the case is one in which a rule 'may be established,' etc. Again, the spirit, not the letter, must control. If it had been intended to confine the application of the act to intrastate work, the legislature would doubtless have said so in a sentence. The words 'may be' should be construed in the sense of 'shall be'." To which forceful reasoning may be added the thought that the whole verb "has been or may be established" indicates rather clearly opposing ideas of time. If the idea of potentiality had been in the mind of the legislature the words "has been or" would have been superfluous. The reasoning of the New York court therefore appeals to this department as correct and preferable to that apparently, though without any discussion, employed in the cases which may be said to represent the numerical weight of authority. In so far as this question may be rendered doubtful by the disagreement among the cases in other states, this department would of itself therefore resolve the doubt in favor of the New York view. Fortunately, however, the Commission seems to have considered this very question in the case of Voshall v. Kelley Island Lime & Transport Co., Bulletin of the Industrial Commission, Vol IV, No. 5, p. 46; 1 Department Rep., 888. To be sure, the Commission's determination in that case turned out to be erroneous because the employment in question was maritime and came within the principle of Southern Pacific Co. v. Jensen, 244 U. S., 205, and the sub sequent cases on that point; but enough was said in the opinion of the Commission in the case cited to show the Commission's view on the question of statutory construction now under consideration. That view is adopted by this department as being founded upon the better reasoning, and it is therefore concluded that section 1465-98, G. C., is intended to apply at any given time only to employers and their employes engaged in intrastate and also in interstate and foreign commerce, for whom a rule of liability or method of compensation has actually been established by legislation of the congress of the United States. So that if at any time it appears that there are employers and their employes who are engaged in intrastate and also in interstate and foreign commerce, but for whom a rule of liability or method of compensation has not been at the time established by the congress of the United States, this section does not apply. At this point, however, note must be taken of another provision which tends to confuse the issues and render the conclusion just stated of less apparent service than it otherwise would be in arriving at the ultimate conclusion on the question. The reference is to paragraph 3 of Section 1465-61, G. C., defining the terms "employe," "workman" and "operative" as used in the section, in part, as follows: "3. Every person in the service of any independent contractor or sub-contractor who has failed to pay into the state insurance fund the amount of premium determined and fixed by the industrial commission of Ohio for his employment or occupation, or to elect to pay compensation direct to his in-jured and to the dependents of his killed employes, as provided in in Section 1465-69, General Code, shall be considered as the employe of the person who has entered into a contract, whether written or verbal, with such independent contractor unless such employes, or their legal representatives or beneficiaries elect, after injury or death, to regard such independent contractor as the employer." In the event that the Operating Corporation be regarded as an independent contractor, and in the further event that such Operating Corporation should fail to pay the premiums into the state insurance fund, or to make the other election permitted by the act and referred to in the paragraph above quoted, this paragraph apparently attempts to impose the status of employer upon the Railroad Company. At first blush this might seem to raise in a new form the question previously discussed as to the meaning of Section 1465-98. Without disposing completely of this question at this time, it may be said that unless the relation between the Railroad Company and the Terminal Operating Corporation is such as that the statutes of the United States furnish a rule of liability or method of compensation for the employes of the latter, Section 1465-98 does not apply, and the fact that Section 1465-61 may purport under certain circumstances to impose liability upon the Railroad Company cannot change this conclusion. Of course, it is not to be doubted that freight handling at a terminal is commerce, and may be interstate or not, according to the contemplated journey of the freight. See: McNeill v. Southern Ry. Co., 202 U. S., 543; C. C. C. & St. L. R. R. v. Dottlebach, 239 U. S., 588; O'Brien v. Pennsylvania Ry. Co., 176 N. Y. Supp., 360. In this case the question is removed from the sphere of doubt by the express statement that among the freight to be handled by the Terminal Corporation is transfer freight. Still proceeding then on the theory that the Terminal Operating Corporation, under the contract from which excerpts have been quoted, would sustain toward the Railroad Company the relation of independent contractor, we have to inquire whether the Federal act establishes a rule of liability for the employes working under this company and their employer. The following provisions of that act (35 Statutes at Large, 65), are quoted: "Section 1. Every common carrier by railroad while engaged in commerce between any of the several states shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce *** for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employes of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, ports, docks, or other equipment." "Section 3. *** The fact that the employe may have been guilty of contributory negligence shall not bar recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe * **" "Section 4. Such employe shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe." "Section 5. Any contract, * * or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act shall to that extent be void." The first question to be considered may be put as follows: Still assuming the relation between the contracting parties to be that of independent contract, does the Federal act apply? It seems that a negative answer should be given to this question, unless the contract is one inhibited by Section 5 of the Federal That is to say, if the proposed contract between the New York Central Railroad Company and the Terminal Operating Corporation is to be regarded as a contract or device, the purpose or intent of which is to enable the New York Central Railroad Company to exempt itself from the liability created by the Federal act, then to that extent-i. e., to the extent of the effect which it otherwise might have upon liability under the Federal act-the contract is void, and the Railroad Company remains liable to the employes of the Terminal Operating Corporation for any injury which may be attributed to the negligence of the railroad. Possibly, also, the effect of this section is to make the Terminal Operating Corporation itself an agent of the railroad for the purpose of attributing the consequences of its negligence to the railroad itself. This view is taken by the supreme court of Washington in State v. Construction Company, 91 Wash., 181. In that case the state brought suit against the construction company to recover premiums payable into the state insurance fund on account of the employes of the construction company engaged in repairing a bridge on the line of an interstate railroad. The following quotation from the opinion of the court will show the court's reasoning: "It is next conceded that the Bates & Rogers Construction Company were independent contractors. It is probably true that that company was an independent contractor. But that fact is unimportant, because Section 5 of the Federal employers' liability act provides: (Here follows a quotation from Section 5, supra.) ** We are satisfied that there was no intent on the part of either the railway company or the Bates & Rogers Construction Company, by the contract which they entered into, to evade that act. The contract was one of employment by the railway company of the Bates & Rogers Construction Company to do a particular work upon the repair of this bridge. The Bates & Rogers Construction Company, and all |