The opinion
THAGARD, Presiding Judge
(dissenting).
This case was originally assigned to the writer of this dissenting opinion. A portion of what follows was included in what I wrote in what I hoped and expected would be the opinion of the court and a portion is directed toward what I believe to be the errors of my brothers in their conclusions. They have quoted most of the pertinent statutes, so when I refer to the statutes by number I refer to them as quoted in the majority opinion. The majority opinion well stated the case and the issues. I have nothing to add thereto except to say that § 273 of the Workmen’s Compensation Act must be given consideration in arriving at the intention of the Legislature in passing the original Act in 1919 and in bringing forward the greater part of the Act into the present Act without major changes, except as to the nature and amount of benefits.
*712 Section 273 of the present Act reads as follows:
“Presumption as to acceptance o'f provisions of article; election not to accept. —All contracts of employment made on or after the first day of January, 1941, shall be presumed to have been made with reference to and subject to the provisions of this article unless otherwise expressly stated in the contract in writing, or unless written or printed notice has been given by either party to the other, prior to the accident, as hereinafter provided, that he does not accept the provisions of said article. All contracts of employment made prior to, and existing on, the first day of January, 1941, shall be presumed to continue from and after the first day of January, 1941, subject to and under the provisions of this article, unless on or prior to said date, the parties have expressly agreed in writing to the contrary, or unless written or printed notice has been given by either party to the other, prior to the accident, as hereinafter provided, that he does not accept the provisions of said article. Every employer and every employee shall be presumed to have accepted and come under this article and the provisions thereof relating to the payment and acceptance of compensation, unless, prior to the accident resulting in personal injury or death, he shall have given notice, as hereinafter provided, of his election not to accept or be bound by the provisions of said article.”
It is said in the majority opinion that, “It appears to be a common impression that the Workmen’s Compensation law is mandatory as to all employers and employees not specifically excluded therefrom. It is not. It is an elective remedy merely substituted at the election of both employer and employee for other existing remedies under the Employer’s Liability Act and common law. Section 270 does not provide for qualification of those previously disqualified by Section 263, but is merely expressive of conditions precedent to becoming subject to the Act if not disqualified from acceptance.” Then the majority quotes from Ellison v. Butler, 271 Ala. 399, 402 , 124 So.2d 88 , the pertinent quotation therefrom being, “It must be borne in mind that the Compensation Act is elective, and to be constitutionally valid must be accepted by both employer and employee.” But what do the employer and employee do to signify their election? Nothing. They get in by operation of law. If they want out, they may so elect, in which event they must comply with certain statutory requirements. Section 273 then “dragnets” all except those exempted or excluded by § 263, and those who elect to get out and comply with the requirements of the law for getting out. And this is accomplished by a “presumption” statute.
Now let us advert to the language of § 263. My brothers have construed the first sentence thereof to be an “exclusionary clause.” I freely confess that in my original opinion I also referred to it as an “exclusionary clause”, but not such an exclusion as would preclude the categories of employment therein set out from coming in by agreement under § 270. But now, having more carefully read § 263 in pari materia with § 273, and having noted that in § 263 the Legislature used the words “shall not be construed or held to apply * * *” and in § 273 the Legislature used the words “shall be presumed” (emphasis supplied in both quotations), I have reached the conclusion that it was the intention of the Legislature to exempt, but not necessarily to exclude certain categories of employment from the presumption created by § 273. (Emphasis supplied) The opinion of the majority also uses the word “disqualification” in discussing the meaning of § 263. I think there is a considerable difference in saying that the law “shall not be construed or held to apply” to certain categories of employment and saying that certain categories of employment “shall be excluded” from the operation of the law. I say this with full knowledge that the Supreme Court in Ellison v. Butler, supra, *713 used the words “exclusions” and “exclusionary provisions” a number of times, but in that opinion the court was not called upon to determine whether the first sentence of § 263 was an out-and-out exclusionary clause or simply an exemption from the presumption created by § 273. And we note, parenthetically, that in Ellison v. Butler, supra, the court said:
“Section 270, by the words ‘agreement, expressed or implied’, simply means an acceptance or election by affirmative action or one implied' by law from failure to express nonacceptance as provided by the Act. * * *” (Emphasis supplied) (271 Ala. at pages 402 and 403, 124 So.2d at page 91 )
“Fail[ing] to express nonacceptance as provided by the Act” undoubtedly has to to with those who are presumed to be brought in by § 273. But what did the court mean by “an acceptance or election by affirmative action?” No affirmative action is necessary by those who are “presumed” to be included. Then the court must have had in mind those categories exempt under the first sentence of § 263 and not included in the second and last sentences of § 263.
Both sides have cited and discussed at some length in their briefs the recent case of Ivey v. Dixon Investment Company, 283 Ala. 590 , 219 So.2d 639 . The Ivey case involved the question of whether a farm employee, through his acceptance and retention of Workmen’s Compensation benefits, was made subject to the Workmen’s Compensation Act so as to preclude the maintenance of his suit against his employer under the Alabama Employer’s Liability Act. The Supreme Court stated in that case that §§ 263 and 270 are read together, the sections being in pari materia. However, the court held that the last line of § 263 prevented a farm employee from agreeing under § 270 to be subject to the Act. The opinion thus states at page 594, 219 So.2d at page 642 :
“This language [the last sentence of § 262] could not be clearer in setting forth the intent and policy of the legislature that farmers and their employees are disqualified from the operation of our Workmen’s Compensation laws, and would prevent an agreement, expressed or implied, between the employer and employee to become subject to the provisions of the Workmen’s Compensation law as may be done in appropriate cases-under the provisions of Section 270 of Title 26.” (Emphasis supplied)
But the court went on to say at page 595, 219 So.2d at page 644 :
“Section 270, Title 26, provides a method by which those employments excepted in a general way by Section 263, may come within the coverage of the Act.” (Emphasis supplied)
It is clear from the reading of Ivey that the court based its opinion on the last sentence of § 263, asserting that this provision absolutely barred farm employees .from Workmen’s Compensation coverage under any agreement or contract, whether expressed or implied. The court’s dicta, however, supports the theory that other employments exempted in the first part of the section could, in the event of compliance with § 270, come under the Workmen’s Compensation Act.
I think that a review of the Workmen’s Compensation Act as it was originally passed by the Legislature in the Regular Session of 1919 (Act No. 245, General Acts of 1919 Session, p. 206); and an analysis of the pertinent sections of the original Act and of the statutory law as it existed at the time this case arose will be of assistance in arriving at the legislative intent.
The original Act, as does the law now, consisted of two parts, as follows: “Part 1. — Compensation by Action at Law — Mod ification Remedies.”; and “Part 2. — Elec tive Compensation.”
My concern is with Part 2 of the Act. The first section of Part 2, being § 8 of the original Act and only slightly different *714 from § 263 of the Act as it appears in the 1958 Recompiled 1940 Code of Alabama, the latter of which is set out in the majority opinion.
The language and substance of § 8 of the original Act is the same as § 263 of the present law, except that §-8 of the original Act excluded employers of fewer than sixteen employees in any one business, and the second sentence thereof provided for the method by which the employer of fewer than sixteen employees in one business might elect to come under the Act, while § 263 of the current law substitutes eight employees for sixteen.
. Sections 264 to 269, inclusive, were not in the original Act but have since been added by a series of amendments.
Section 9 of the original Act has been brought forward unchanged as § 270 of the 1958 Recompiled Code of Alabama of 1940, the pertinent part of which is quoted in the majority opinion.
Section 10 of the original Act has been brought forward without change as § 271 of the Act as it appears in the Recompiled Code. This § 10 (§ 271 of the Code) is relevant to this case only in that it may throw some light on the legislative intent as to § 270, but will come in for some discussion later.
It will be observed that §§ 263, 270 and 271 of the Recompiled Code appeared consecutively in the oi-iginal 1919 Act as §§ 8, 9, and 10. I think that this fact alone indicates that the Legislature intended that §§ 9 and 10 were to be construed to be applicable to at least a part of § 8. Hereafter, I shall refer to these sections by their numbers in the Recompiled Code.
Under the provisions of § 273 of Tit. 26 of. the 1958 Recompiled Code all employers and employees, except those exempted by § 263, come under and are subject to the provisions of the Act. Construing §§ 263 and 273 together, we find that there are at least two contracts of employment that are or may be subject to the provisions of the Act, viz: (1) All of those not exempted by the provisions of § 263; and (2) Those permitted to come under the Act by the election of the employer; namely, those employing fewer than eight employees, and the various governmental subdivisions. But the exemption provision of § 263 also exempts employees of common carriers while engaged in interstate commerce, domestic servants, farm laborers, and persons whose employment is casual. And the exemption section also provides the method by which employers of less than eight employees and the various governmental subdivisions may elect to come under the Act, thereby bringing all of their employees under the Act, except those individual employees who elect not to come under the Act by giving the notice required by § 273. But, what about the other classes of employment that are named in the exemption clause? As to one of them, farm employment, the Legislature nailed it down that that particular exemption was completely excluded and was not to be brought under the provisions of the Act by agreement or otherwise. To me this would indicate that the Legislature did not intend to make it illegal for the other exempt classes to be brought in by agreement. While making farm employment so excluded as to make it illegal, even by agreement of both parties, the Legislature could so easily have added those other exempt categories of employment if it intended also to make it illegal to bring them under the provisions of the Act. I realize that the same logic would apply to the failure of the Legislature to provide a method by which employers in those other exempt classes might elect to “come under.” But I think that is wherein §§ 270 and 271 are applicable. I think that as to employers of fewer than eight employees and also governmental subdivisions, the Legislature intended that they alone have the right to elect to “come under”, thereby placing upon their employees the burden of taking positive action to “come from under”; whereas, § 270 furnished the method by which those *715 other exempt classes of employment might be brought under the provisions of the Act if both employer and employee wanted and agreed so to do, by agreement, either expressed or implied.
That § 270 was intended to apply to some classes of employment is fortified by the provisions of § 271, which in effect prohibits the making of an agreement embracing only a part of the Act or changing the amount of compensation payable. Evidently, the purpose of this section was to prevent employers, who are in most instances better bargainers than are individual laborers, from persuading individual employees from agreeing to less favorable conditions or benefits than those provided by the Act.
But for the statutory exemptions all contracts of employment would be subject to the provisions of the Act. If appellant’s position is correct, only four categories of employment are placed beyond the pale of the Act, viz: (1) That of common carriers doing an interstate business while engaged in interstate commerce; (2) domestic servants; (3) farm laborers, who were placed outside the pale by the last sentence of § 263; and (4) employees whose employment is casual. Those under category (1) constitute the only class whose members now exist in substantial numbers. In trying to fathom the legislative intent, one can but wonder why the Legislature would have put employees of common carriers in interstate commerce beyond the pale when it expressly included, by § 273, manufacturers, merchants, operators of mines, and many other employments engaged in interstate commerce, who operate motor carriers in interstate commerce.
At the risk of being somewhat repetitious, we observe that by the first sentence of § 263 the Legislature separated some categories of employment from all categories of employment embraced in § 273. Then by the second sentence it provided a method by which some of the categories exempted by the first sentence might become included. Then, by the last sentence it provided that one category, farm laborers, could not under any circumstances be included. That left only common carriers engaged in interstate commerce, domestic servants, and casual employees undisposed of. And I think it left only those three categories to which the provisions of §§ 270 and 271 might possibly apply. In Standard Oil Co. of Kentucky v. State, 218 Ala. 243 , 118 So. 281 , it was said :
“It is not to be presumed the Legislature has used language without any meaning or application whatever.” ( 218 Ala. at page 245 , 118 So. at page 282 )
I have searched in vain for an. Alabama statute or appellate decision that says that common carriers and their employees may not by contract or agreement be subject to the provisions of the Workmen’s Compensation Act. I have also searched my mind for a category of employment to which §§ 270 and 271 may be applied except the three not finally disposed of by § 263 and have thought of none. Therefore, I perforce must believe that common carriers engaged in interstate commerce and their employees may by agreement, expressed or implied, become subject to the provisions of Article 2 of the Workmen’s Compensation Act.
What object could the Legislature have had in including the last sentence of § 263 if no election under § 270 was possible? The opinion of the majority attributes its inclusion to the assumption that it was done by a farm oriented Legislature to insure that farmers were not to be affected by the Act and to remove any uncertainty that the category of farm laborer in the first sentence was sufficiently inclusive. It is my belief that that part of the Legislature that was farm oriented looked at § 270 with a jaundiced eye and added the last sentence of § 263 to make certain that no farmer’s laborers would ever assert that they had made an agreement with the farmer under the provisions of § 270.
*716 There is one final reason why I am so obstinate in my belief that the exempt categories of § 263, particularly common carriers in interstate commerce, may avail themselves of the provisions of § 270. I observe that intrastate motor vehicle carriers were not put under the jurisdiction of the Public Service Commission until 1931. Tit. 48, § 239, of the 1940 Code of Alabama. By inference then, as well as by common knowledge, I know that there were few, if any, interstate carriers of freight by motor vehicles in Alabama in 1919. Also, I know that in 1919 railroad employees were covered by and had the benefits of the Federal Employees’ Liability Act, the provisions of which to this good day do not apply to employees of motor carriers engaged in interstate commerce. The fair assumption then is that the Legislature exempted employees of common carriers from the Workmen’s Compensation Act because they consisted almost exclusively of railroad employees, who were already protected by the provisions of the Federal Employees’ Liability Act. I confess that I am now speculating, but it is my guess that sometime between 1919 and the present time the number of employees of motor carriers engaged in interstate commerce has overtaken and far outnumbered the number of railroad employees so engaged. Yet railroad employees have the benefit of F. E. L. A., while employees of motor carriers have only the common law or Article I of the Workmen’s Compensation law, encumbered with all of their burdens of proof. If the holding of the majority opinion is correct, why has not the Legislature done something about the inequalities that exist between railroad employees and motor carrier employees, though it has met many times and amended the Workmen’s Compensation Act many times in the interim? I think the answer is simply that the succeeding Legislatures and common carriers engaged in interstate commerce have construed § 270 to mean what it says and have thought that no amendment was necessary.
For the reasons hereinabove expressed, though feebly, I respectfully dissent from the majority opinion in this case. As the majority opinion must prevail I pretermit any discussions of the other two questions posed in this case.