of until the whole contract is before this department. The following intimations to the contrary are found in the extracts which have been furnished:

In paragraph 1 appears the promise of the contractor to
"perform any and all functions and services incident to such
business which are customarily performed by the employes
listed in 'Schedule A'."

If this be taken to mean that the relation between the Terminal Corporation and the railroad is the same as that formerly subsisting between the railroad and its employes who are to be "taken over" by the Terminal Corporation, then it would be difficult to sustain the position that the Operating Company is really an independent contractor. The case would then be clearly brought within the principle of rather numerous decisions of the Commission, and within the implication at least of the decision of the supreme court of the United States in the Turner case, supra.

See Commission rulings in

McAllister v. National Fire Proofing Co.,

Vol. 1, No. 7, Bull. Ind. Com., 107;

Robinson v. The Newark Reflector Co., Vol. 1, No. 7, Bull.
Ind. Com., 167.

The test is that of control.

Two questions may be put:

(1) Does the Railroad Company retain control over the manner in which the Terminal Corporation is to operate the Orange Avenue terminal, or does the contract as a whole contemplate that the Terminal Corporation will be held responsible only for results

(2) Does the Railroad Company retain any control over the conduct of the employes who are to be 'taken over' by the Terminal Corporation?

The fourth paragraph of the agreement refers to the "exclusive management and direction" of the contractor; and the ninth paragraph recites that the contractor assumes liability in certain cases a provision somewhat similar to that commented upon by Mr. Justice McKenna in the Turner case, supra. These provisions of the contract rather point in the direction of the relation of independent contract; but the ultimate question which has to be decided can, as previously intimated, only be resolved when all the facts are before this department.

It may be said that the consequence of holding that the relation between the two companies is not that of independent contract is to make Section 1465-98 General Code apply to the case; for in that

event, whether regarded as a device in violation of Section 3 of the Federal employers' liability act or not, the contract would create such relation between the subordinate employes and the Railroad Company as to make the Federal employers' liability act applicable. In that event the following conclusions would ensue:

(1) The state workmen's compensation law could in no event apply to or cover the risk of injuries or deaths occuring in connection with interstate commerce.

(2) The state act could not be made applicable at all unless the interstate and intrastate work of each employe could be clearly separated and distinguished one from the other.

(3) To the extent that the intrastate work of each employe could be separated and distinguished from his interstate work, the risk of injury or death occurring in the course of such intrastate work could be covered only by voluntary arrangement, approved by the Industrial Commission and evidened by written acceptances signed by the employer (the Terminal Operating Corporation) and each of its employes, and filed with and approved by the Commission.

This point is not further elaborated because of the incompleteness of the facts upon which the opinion is requested.

A Violation of the Terms of the Act regulating Lenses on Automobiles Occurs Wherever the Motor Vehicle is Driven Upon the Public Highways with the Device Out of the Adjustment Prescribed by the Testing Authority. A Certificate that Certain Lenses or Devices Are Within the Law Does Not Excuse if the Same Are Not Properly Applied. The Penalty of Said Act is as to the Use of a Motor Vehicle Upon the Public Highways Without an Approved Device.-There is No Provision Requiring a Manufacturer to Furnish the Automobile with Such Devices.

No. 2405-(Opinion Dated September 9, 1921.) Department of Highways and Public Works, Division of Highways, Columbus, Ohio:

Gentlemen-The receipt is acknowledged of your communication of recent date, reading:

"Two questions have arisen in connection with the Pence Act, S. B. No. 156, upon which this department desires an opinion.

After the highway commissioner has approved a lens or

device, is the motorist simply required to place this device in his lamp without any regard to the focal adjustment, or is the motorist also required to see that the lens or device has the proper focal adjustment?

Is it mandatory for the manufacturers of automobiles to equip their product with one of the approved devices that will comply with the law before it is sold to the individual?"

The act to which you refer consists partly of new and partly of amendatory legislation. The new legislation is embraced in sections designated as Sections 6310-1 and 6310-2. The amendatory legislation includes the amendment of Sections 12614 and 12614-1 and the repeal of Section 12614-2. All that need be said here of the amendatory legislation is that the amended form of Section 12614-1 provides a fine for the violation of Sections 6310-1 and 6310-2.

Section 6310-1 opens with general provisions to the effect that motor vehicles must at certain stated times carry lights when driven upon the public highways. These provisions are followed by the paragraph:

"No headlights shall be used on any motor vehicle upon the highways except after the installation of a device to prevent glare, which device has been certified and approved by the state highway commissioner, in accordance with, the provisions of Section 6310-2 of the General Code, which device shall be applied and adjusted in accordance with the requirements of a certificate of approval to be issued by said state highway commissioner. No such certificate of approval of any device shall be issued by said state highway commissioner unless such device, by actual test, conducted under his direction, complies with the following requirements for lights."

Then follow specifications of requirements, having for their object sufficient light on the one hand and non-glaring light on the other.

Section 6310-2 provides in substance that the

"state highway commissioner may, after proper laboratory tests, approve certain devices for controlling the front lights on motor vehicles so that they shall comply with the provisions of this act *** and may issue a certificate to the appli cant securing the device, certifying *** that the device, when properly applied, complies with the requirements of this act."

Since the certificate of the testing authority can go no farther than to show that the lighting device, when properly applied, meets

the requirements of the act, and since there is a prohibition against the use of headlights except after the installation of a device to prevent glare,

"which device shall be applied and adjusted in accordance with the requirements of a certificate of approval to be issued by said state highway commissioner,"

it follows by way of answer to your first question that a violation of the terms of the act occurs whenever the motor vehicle is driven upon the public highways with the device out of the adjustment prescribed by the testing authority.

Your second inquiry may be answered by the statement that the penalty provisions of the act in question go to the point of the use of a motor vehicle upon the public highways without an approved device; and that there is no provision requiring a manufac turer of motor vehicles to equip his product with an approved device, nor prohibiting the sale of a vehicle not so equipped.