ing its switch tracks, and its principal business was taking empty cars to the dock and returning them loaded with coal to the connecting railways, the connecting railways being the four companies which own the railway company whose rights are in question here. There, as here, it was insisted that, although organized as a railway company, it was operating its railroad for a private and not for a public purpose. It was there said:

"Under the law in relation to the subject under consideration, the question is whether the property is necessarily used for a public or quasi public purpose in order to enable the plaintiff to perform its duty as a common carrier.

* * * "

The court further said:

"The mere fact, however, that a large part of the business of plaintiff was done for the Pittsburg Coal Company in which it is interested did not deprive plaintiff of its character of common carrier or render its property devoted to a private use so long as it was in fact organized as a common carrier and serving the public in that capacity, although to a limited extent because of location and conditions which limited such service. * Whether the property of plaintiff is devoted to a public use is not determined by the extent of the use, but by the right of the public generally to use it, and the fact that it is used for public purposes by all who desire to use it.

* *

"Upon the admitted facts as they appear from the record we see no escape from the conclusion that the plaintiff was a common carrier and its property devoted to a public use, and, though limited in the extent of such business, it was doing the business of a common carrier. Its road and switch tracks were subject to use by all the public. The road carried for the public generally between its termini, the coal dock, and several other railroads." State ex rel. Northwestern C. R. Co. v. Willcuts, 140 Wis. 448, 453, 454, 122 N. W. 1048, 1050.

It is strenuously insisted that this case involved a question of taxation, and that it was necessary to go no further than to hold that the property of the company was devoted to a public use, and that the decision should be so limited. Whether that be true or not, the use of the words "common carrier" shows how it was commonly used and understood at that time. We need not go further.

In 1909 two cases involving substantially the same question involved in this case had been decided in the federal courts, United States v. Sioux City Stockyards Co. (C. C.) 162 Fed. 556, and Union Stockyards Co. v. United States, 169 Fed. 404, 94 C. C. A. 626; and after the enactment of chapter 50 of the Laws of 1911, and before the amendment by chapter 599 of the Laws of 1913, the case of the United States v. Union Stockyards Co. was decided by the Supreme Court of the United States. The gist of the cases is set forth in a statement made by Mr. Justice Van Devanter while a circuit judge, found in 169 Fed. 404, 94 C. C. A. 626, and restated with approval in 226 U. S. at 305, 33 Sup. Ct. 88, 57 L. Ed. 226, as follows:

"Its [the stockyards company's] operations *** include the maintenance and use of railroad tracks and locomotives the employment of a corps of operatives in that connection, and the carriage for hire over its tracks of all live stock destined to or from the sheds or pens, which, in effect, are the depot of the railroad companies for the delivery and receipt of shipments of live stock at South Omaha. The carriage of these shipments from the transfer track to the sheds or pens and vice versa is no less a part of their transit between their points of origin and destination than is their carriage over any other portion of the route. True, there is a temporary stoppage of the loaded cars at the transfer track, but that is merely incidental and does not break the continuity of the transit any more than does the usual transfer of such cars from one carrier to another at a connecting point. And it is of little signifi

cance that the stockyards company does not hold itself out as ready or willing generally to carry live stock for the public, for all the railroad companies at South Omaha do so hold themselves out, and it stands ready and willing to conduct, and actually does conduct, for hire a part of the transportation of every live stock shipment which they accept for carriage to or from that point, including such shipments as are interstate."

In Texarkana & Ft. S. R. Co. v. Rosebrook-Josey Grain Co., 52 Tex. Civ. App. 156, 114 S. W. 436, the same question was before the Court of Civil Appeals of the state of Texas, which held that a railroad company switching cars from its switch tracks to and from warehouses situated on its spurs and switches and delivering them upon the transfer tracks of other railroad companies in the same town was a common carrier while engaged in such business.

[7-10] We must presume that the Legislature adopted the language here under consideration with a full understanding of its established legal effect, particularly as used in our statutes and decisions, and it can scarcely be douted that when it said in 1913 that the Workmen's Compensation Law, which, prior thereto, was held to apply to the employees of all railroad companies, was amended so as to exclude employees of all railroad companies operating steam railroads as common carriers, it intended to exclude the employees of the railway company along with the employees of all other companies organized as railroad companies and doing business as common carriers. With the policy of the law we have nothing to do; that is a matter for the consideration of the Legislature. There al parties in interest can be heard; here they cannot. We consider here the construction of the language used by the Legislature. It is our duty to interpret, not to legislate. The words of the act are plain and unambiguous. While the railway company does not do all that some common carriers do, everything done by it is done as a common carrier; it is therefore operating a steam railroad as a common carrier. [11] We are referred to Brooklyn Eastern Dist. Terminal v. United States, 239 Fed. 287, 152 C. C. A. 275, decided January 9, 1917, and to United States v. Union Pacific R. Co., 213 Fed. 332, 130 C. C. A. 34, as decisive of the question that the railway company is not a common carrier. It is there laid down that the test is whether or not shippers and consignees have contractual relations with the terminal. With all due deference, we do not think the test laid down is the correct test. We think the correct test is that stated in Northwestern Coal Ry. Co. v. Willcuts, 140 Wis. 448, 122 N. W. 1048, and approved in Tap Line Cases, 234 U. S. 1, 24, 34 Sup. Ct. 741, 58 L. Ed. 1185; that is the right of the public to use the railroad's facilities and to demand service of it, rather than the extent of its business, is the real criterion determinative of its character. In this case the railway company cannot limit the right of any shipper to use its facilities, and the facts that the shipper must contract for its service through the agency of another company is immaterial. The fact that any shipper can make a contract by virtue of which the railway company under its tariffs is obliged to render the service contracted for is the material thing. This rule was laid down by this court prior to the enactment of the amendment in question, and we see no reason why it should be overruled or amended. Neither do we think the principle that a railroad may be a common carrier of merchandise, but is not a common carrier of common carriers of merchandise (Donovan v. Penn. R. Co., 120 Fed. 215, 57 C. C. A. 362, 61 L. R. À. 140, and Pullman Palace Car Co. v. Missouri Pac. Ry. Co., 115 U. S. 587, 6 Sup. Ct. 194, 29, L. Ed. 499, and Express Cases, 117 U. S., 1 Sup. Ct. 542, 628, 29 L. Ed. 791) is in any way applicable. The railway company contracts and holds itself out by its tariffs as being ready, able, and willing to perform the service of delivering to destination all persons and property delivered to it in cars, and for such service it receives compensation. Manifestly what it receives compensation for is the transportation of persons and property.

[12] It appears that the railway company accepted the provisions of the Workmen's Compensation Act, and that since its enactment many adjustments have been made with its employees in accordance with its provisions. While this practical construction of the act given it by the Industrial Commission might be of weight if the meaning of the statute were doubtful, a practical construction, however long adhered to, cannot override the plain terms of the statute. Smith v. State, 161 Wis. 588, 155 N, W. 109; Burkhardt M. & E. P. Co. v. Hudson, 162 Wis. 361, 156 N. W. 1011.

[13] The trial court found itself bound by the established rule that findings of fact of the Industrial Commission must be upheld if supported by any substantial credible evidence. This is an incorrect application of the rule. The question involved here is not one of fact but of law. The amount of business done and the method of transacting it are questions of fact; whether the business so transacted is that of a common carrier or a private carrier is a question of law, and courts are not bound by the decisions of administrative bodies in regard to constitutional and legal questions. Wisconsin Telephone Co. v. Railroad Commission, 162 Wis 383, 156 N. W. 614, L. R. A. 1916E, 748.

[14] It is also argued that the appellant by appearing before the Industrial Commission waived his right to object to the jurisdiction of the commission. If the Industrial Commission had no jurisdiction of the subject-matter, which is the question here involved, there being no claim that the employee had accepted the provisions of the act as amended, the parties could not even by stipulation confer jurisdiction. 15 C. J. 802, par. 101, and cases cited.

[15] After the enactment of chapter 50 of the Laws of 1911 the railway company elected to come under the act. As the act then stood, this brought employees under the act unless they filed a withdrawal. The plaintiff never filed a withdrawal, but his employment with the railway company was intermittent, although during the greater part of the time since 1911 he has been employed by the railway company. The act as it stood at the time of plaintiff's injury provided that it should not apply to employees of a railroad company operating a steam railroad as a common carrier, "unless both employer and employee shall specifically in writing have voluntarily accepted the provisions of said sections (the Compensation Act) and have filed notice thereof with the Industrial Commission," etc.

Where the employment has not been continuous and no election has been filed by the employee subsequent to the amendment, the employee is not subject to the provisions of the act. Whether or not he would be if his employment had been continuous we do not decide. The fact that the plaintiff may have been under the Compensation Act by reason of the election of the railway company made prior to the amendment is not sufficient to place him under the act as amended, under the facts and circumstances in this case. It appears that the railway company has elected to be subject to the act as amended. If any one or all of the employees desire the benefit of the act, an election may be filed and notice given, and as to any injury occurring subsequently the act will apply.

The judgment of the cricuit court is reversed and the cause is remanded, with directions to enter judgment setting aside the award and directing dismissal of the application.

UNITED STATES CIRCUIT COURT OF APPEALS.
NINTH CIRCUIT.

ALASKA TREADWELL GOLD MINING CO.

ข.

CRINIS. (No. 3212.)*

2. MASTER AND SERVANT-EVIDENCE OF RELATION-MATERIALITY.

In an action against a mining company for compensation for the death of an employee, on the issue whether deceased was an employee of defendant the pay roll of another company, made out by a bookkeeper, and which deceased did not sign nor see, held properly excluded as immaterial. (For other cases, see Master and Servant, Dec. Dig. § 404.)

3. MASTER AND SERVANT-NOTICE OF ACCIDENTS-ALASKA COMPENSATION LAW.

Provision of Alaska Workmen's Compensation Law, § 9, requiring an employer who has been furnished by the employee with the names and addresses of his beneficiaries to notify them of his death, held to apply to an employer which, with other companies, hired men through a common agent, who was furnished with such statement.

(For other cases, see Master and Servant, Dec. Dig. § 3971⁄2, new, vol. 7 A, Key-No. series.)

In Error to the District Court of the United States for Division No. 1 of the District of Alaska; Robert W. Jennings, Judge.

Action at law by Catherine Crinis against the Alaska Treadwell Gold Mining Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Hellenthal & Hellenthal, of Juneau, Alaska, for plaintiff in error. J. H. Cobb, of Juneau, Alaska, for defendant in error.

Before Gilbert, Ross, and Hunt, Circuit Judges.

HUNT, Circuit Judge. Section 9 of the Alaska Compensation Act (Session Laws Alaska 1915, p. 146), provides that, where a person claims to be a beneficiary entitled to compensation under the act, such beneficiary or some one in his or her behalf shall within 120 days from and after the death of such employee serve a written notice upon the employer, which notice shall contain the name and address of the person claiming to be such beneficiary, the relationship existing between such beneficiary and the deceased, and certain other matters not now material. It is also provided that:

"Such notice shall be liberally construed and no claim for compensation shall be denied because of any defect in the notice, provided it appears that a notice was served with a bona fide intention to comply with the provisions of this act."

After providing for a method of service upon the employer the section ends with the following sentence:

* Except in the cases in this section otherwise expressly

* Decision rendered, February 3, 1919. 255 Fed. Rep. 810.

Vol. III-Comp. 34.

provided, no action or other proceeding to recover such compensation shall be brought or maintained, nor shall any claim for such compensation be filed or allowed as hereinafter provided unless such notice shall have been served in the manner and within the time herein provided." In the complaint filed by Catherine Crinis, widow of Nicholas P. Crinis, it was set up that Nicholas Crinis was killed about June 30, 1916, while in the employ of the Alaska Treadwell Gold Mining Company, and left a widow and five children; the children being under the age of 16 years. There was no allegation that any notice of claim had been served upon the defendant. The mining company demurred, but the court overruled the demurrer. The matter went to trial upon the direct issue whether Nick Crinis at the time of his death was an employee of the defendant mining company.

In the course of the trial defendant offered to prove that no notice had been served upon it by the plaintiff or any one in her behalf stating that she was a beneficiary. The court excluded such evidence upon the ground that that was not part of the right, but was a matter of affirmative defense, which had not been pleaded in the answer of the mining company. The jury found specially that at the time of his death Crinis was an employee of the Alaska Treadwell Gold Mining Company. Judgment was entered in favor of the plaintiff, and by writ of error the case is brought here for review.

[1] Error is assigned because the court in the course of the examination of several of the plaintiff's witnesses permitted them to answer questions substantially in this form:

"What was Crinis' occupation, and in whose employ was he at the time he was killed?"

Considering the issue, we think the court should have sustained objections to the questions. But inasmuch as the witnesses testified in detail as to where and how the miners were employed, who paid them their wages, what the method of transacting business was, who was president and who was employment agent of the several mining companies of which group the plaintiff in error was one, there was no prejudice to the rights of the plaintiff in error. It was in evidence that plaintiff in error, the Alaska United Gold Mining Company, and the Alaska Mexican Gold Mining Company had the same officers and were intimately associated in business conduct; that purchases were made by the companies from the Alaska Treadwell Company; that the Alaska Treadwell acted as a banker; that the offices of the several companies are combined; that the bookkeeping is all done in one department and one place, and the cash all disbursed by one man, each company contributing to the Treadwell Company the amount of cash the Treadwell Company has advanced on its account. The men were employed by one employment agent, whose office had but a single sign, "Employment Office" over the door, and the men were then directed as to what mines they were to work in. Crinis was killed in the Ready Bullion mine, operated by the Alaska United Gold Mining Company and was paid some money by that company very shortly before his death. As all these matters bore upon the issue whether or not deceased was an employee of the plaintiff in error, and the court carefully instructed the jury that the issue was whether Crinis was an employee of the plaintiff in error or of the Alaska United Company, the answers which became opinions of the witnesses that the deceased was in the "employ" of the plaintiff in error at the time of his death could not have misled the jury.

[2] It is said that the court erred in refusing the offer of the pay roll of the Alaska United Gold Mining Company. Counsel for the plaintiff below objected to the introduction of this paper because it was not signed by Nick Crinis, and he particularly objected to all of the pay roll except for the months of June and July, 1916. We think the court correctly excluded the pay roll, because it did not bear the signature of