insurer, and that the objection cannot be, ed had been employed for a short period at maintained.

It is also contended that the deceased was not in the employ of the appellant company at the time of the accident, but was an inde pendent contractor. There is nothing in the evidence to warrant any such conclusion or contention.

[5] It is further insisted that the commission was without jurisdiction to make an award in this case, for the reason that the employment of deceased was both casual and not in the usual business of appellant. Comp. Laws Utah 1917, § 3111, so far as material here, reads:

to

"The term 'employé,' 'workman,' and 'operative,' as used in this title, shall be construed mean: (1) (2) Every person in the service of any person, firm, or corporation, employing four or more workmen * regularly in the same business, or in or about the same establishment under any contract of hire, express or implied, oral or written, including aliens, and also including minors who are legally permitted to work for hire under the laws of the state, but not including any person whose employment is but casual, or not in the usual course of trade, business, profession, or occupation of his employer."

Since the date of the accident involved in this case the foregoing section has been so amended that the question here discussed is not likely to be before the courts again.

one time some months prior to the date of the accident to assist in doing some work upon the canal. At the time of the accident it appears that it was advisable to strengthen the banks of the canal to prevent an overflow, and the matter was, by the "canal boss," submitted to the superintendent of appellant company, who instructed that the necessary help be procured and the repairs made. Accordingly, on December 30th, the deceased was employed. He worked that day and the following day. On January 1st, while so employed, he received an injury which resulted in his death. The commission, in its decision, makes the following finding, which, in our judgment, is supported by the evidence.

"It appears from the evidence that Louis J. Rushton was employed with a number of other men to make repairs along the banks of the Salt Lake & Utah Canal, where, because of the formation of ice, the water was overflowing the banks. This canal furnished the water used by the defendant company in its business of smelting. Water, it appears, is a very important factor in the business. Indeed, it would seem that the plant could not operate without it-an adequate supply of water-and it appears from the evidence that for about 6 years last past the canal has carried water during the nonirrigating season for practically no other purpose than to serve the needs of this company, and the company regularly employed men to keep the canal open, and while it was an unusual occurrence that men had to be employed to repair the banks of the canal, and it appears that Louis J. Rushton was employed on one of these occasions, the commission is unable to find that his employness, profession, or occupation of his employer, but, on the other hand, is persuaded and does find that what he was doing was so intimately connected as an incident and factor in its business to make it necessary to rule against the defendant on this ground."

As indicated, we are satisfied that the evidence fully justifies the commission's conclusion that obtaining water from this canal was essential and necessary for the operation of the mining and milling business of appellant.

It is undisputed that the chief occupation of deceased was that of a farmer. He owned land located under the canal in question, and resided there with his family, and had done so for more than 3 years. He worked on the farm during the summer months.ment was not in the usual course of trade, busiThe canal is owned by a corporation known as the Salt Lake & Utah Canal Company. The water flowing through the canal is used for irrigation and for watering stock. It is also undisputed that appellant obtained water from this canal, during both the irrigation and nonirrigation seasons, and that the water was used in the operation of its business of mining and milling ores. The water thus acquired or procured was necessary in conducting and carrying on its usual and regular business. The Copper Company, appellant, had an employé by the name of Larson, known as the "canal boss," regularly and continuously engaged in looking after the repair of the canal, keeping it free from débris and seeing that the canal was not permitted to overflow its banks, all of which might result from an excessive amount of water flowing through the canal, or, during the winter months, from ice interfering with the flow of the water. It was the custom, when repairs were required, for men to be employed from any place they could be obtained to make such repairs. Ordinarily it was the farmers residing near

Any one employed in constructing or repairing a ditch or other means of conveying water used in the business of the ap pellant is just as definitely employed and engaged in the usual occupation or business of the employer as is a machinist engaged in assembling or repairing a machine operated in taking ore from the company's mines. The canal in question was under the control of the appellant company. True, it was owned by another corporation, and was utilized to convey water to farmers for irrigation and domestic purposes. Appellant seems to have been in control of and charged with

(198 P.)

In Holmen Creamery Ass'n v. Industrial Com., 167 Wis. 470, 167 N. W. 808, the Supreme Court of Wisconsin gives sanction to the principle that the casualness of the employment rests, not upon the infrequency of the employment or the duration thereof, but that the nature of the employment must determine whether the same was casual or otherwise. The facts involved in that case are not in dispute. They are given by the court in the following language:

structions, and seeing to its repair when- [ require the courts to give to legislative enactever necessary, so that the same would con- ments a liberal construction, with a view to vey water to be used by the appellant. It effectuate the purpose sought by the Legismust therefore, in our judgment, necessarily lature. follow that one employed as was the de- It may be claimed, and it is claimed by ceased in making repairs on that canal was counsel for appellant, that to hold that the engaged in an employment necessary in con- deceased in this case was not a casual emducting the usual business of the company. ployé is in effect to nullify the provisions Appellant further maintains that admit- of the statute. Let us suppose that some ting that the employment was in the usual truck or automobile belonging to this apcourse of the business of the employer, nev- pellant had been wrecked upon the public ertheless it was but casual employment, and roads of Salt Lake county near the home for that reason it is not within the juris- of the deceased; that the deceased had been diction of the commission to make an award. employed by the company to remove that The authorities are not uniform in defining demolished machine and throw it upon the what constitutes casual employment under scrap heap; that when he had done so his acts similar to our Workmen's Compensa- employment would cease. That would be a tion Act. As indicated, there was no regu- case of casual employment, and just such larity of employment or assurance of em-employment, in our judgment, as the Legisployment at any time or at all. It was only lature had in mind when it enacted this when the exigencies of the situation requir-law. No one can say that to scrap a broken ed extra workmen in addition to the regular down truck or automobile is in the usual employés of appellant company that the de- course of the business or trade of this apceased or others engaged in repairing the pellant. In this case, as has been definitely canal at this or other times were employed. indicated, the deceased was engaged in no At the time of the employment of the de- such exceptional or unusual employment. ceased nothing was said as to the length of time that such employment would continue. It was understood that as soon as the necessary repairs were made upon the canal such employment would cease. These facts are not in dispute. If this court should follow the conclusions reached by the Supreme Courts of Massachusetts and Illinois, and, possibly, Pennsylvania, the applicant must be denied relief in this case. In re Gaynor, 217 Mass. 86, 104 N. E. 339, L. R. A. 1916A, 363; In re Cheever, 219 Mass. 244, 106 N. E. 861; Aurora Brewing Co. v. Ind. Board, 277 Ill. 142, 115 N. E. 207; C. G. W. R. R. v. Industrial Com., 284 Ill. 574, 120 N. E. 508. The intent of the legislation in question was to create a new or additional burden upon the industries of this state not here tofore borne by such industries, and to establish a system whereby the industries should bear the cost of providing for those injured while engaged in such industries or the dependents of those sustaining injuries resulting in death. Such being the object sought, it is, in our judgment, more in consonance with that purpose to conclude that it was not the intention of the Legislature to exclude from the operation of the act any one engaged in work necessarily required in the usual prosecution of such industries, and that the duration of such employment or the infrequency of the same ought not to control the courts in determining whether the employment was casual or otherwise. If the employment was essential and was required in the prosecution of the regular business of the industry, the industry, in order to carry out and effectuate the purpose of the act, should pay for any injuries sustained. The statutes of this state

"Wallum was hired by the manager of the Creamery Association to make some repairs on the creamery, consisting of mason work and plastering inside and outside of the building. He started to work about 10 o'clock in the forenoon of November 26, 1916, and was injured about 3 o'clock in the afternoon of the same day. He had previously worked for the creamof the building, but had never been steadily emery association off and on, and had built part ployed by it. He was always hired specially whenever he did repair work for it, and was paid by the hour or day. It was understood that when these repairs were completed his employment terminated, and that if he rendered further services it would be under a new employment."

The question presented for determination by that court does not differ in principle from one presented by this record. The court, in discussing the question here under consideration as applicable to the facts in that case, said:

"It is quite evident that the term 'employment' used in the quoted section refers to the nature or kind of service rendered by the employé rather than the nature of his contract of hiring. The true test, therefore, is whether the service rendered or the work done by the employé is of a casual nature."

We have seen that the work in which the deceased was engaged at the time of the accident was work required in the actual operation of mining and milling in which business the appellant is engaged. The constant use of water, it seems to be conceded, was essential to that industry. We there fore conclude that the deceased was not, at the time of the injury, a casual employé within the meaning of the term as used in the act.

[6, 7] The testimony upon which the award was made in this matter was taken before a referee. Appellant's counsel objected to any hearing by the referee, and based such objection upon the ground that the commission has no power or authority to delegate to a referee the right to hear testimony in support of the application, and, further, that if it be admitted that the commission has authority to appoint a referee the referee appointed in this case had no power to administer an oath. Counsel supplemented his objections by a motion to stay the proceedings, and requested that the application be heard before the commission or some member thereof.

delegated shall be the power to enter into contracts of insurance, insuring employers against liability for compensation as herein provided and insuring to employés the compensation fixed by this title; also the power to make agreements for the settlement of claims against said fund for compensation for injuries in accordance with the provisions of this title; also the power to determine to whom and through whom payments of such compensation shall be made; and also the power to contract with physicians, surgeons, and hospitals for medical and surgical treatment and care and nursing of injured persons entitled to compensation from said fund."

The Attorney General, on behalf of the commission, insists that the foregoing section is conclusive upon the question of the commission's authority to name deputies and to delegate to such deputies such powers as it (the commission) deems necessary or convenient. On the other hand, it is the claim of appellant that the general grant contained in the first sentence of the foregoing section is restricted or limited to the powers enumerated in the remaining part of that section; that in the interpretation of statutes it is a rule of construction that words granting general powers are limited to powers enumerated if such enumeration immediately follows the general grant and the powers enumerated relate to the same subject. This rule of interpretation is one that is recognized by all writers on statutory construction, and is applied by the courts unless its application would result in defeating the manifest intent of the Legislature or from the language used it is apparent that it was not intended by the Legislature that the general powers delegated should be restricted. The rule invoked is, after all, merely a rule of construction. That rule is, like all rules of construction, controlled by the intent of the Legislature, if that intent can be rationally determined from the language used, considered in connection with the other provisions of the act, where the same is found. The language here used indicates that the powers enumerated are not exclusive. After the general words or grant the statute says, "Among the powers which may be so delegated" shall be those enumerated. One of the definitions of the word "among," found in the Century Dictionary, is: "In the number of; out, or out of." We have a right to conclude, therefore, that the special powers enumerated were not intended to be restricted, but that the commission is authorized to delegate to deputies other powers not inconsistent with or prohibited by other provisions of the act.

The facts that the commission is an administrative and ministerial body, and that no express power is given to name a referee, are again urged, among other reasons, why such power could not be delegated. That a referee had been regularly appointed by the commission seems to be conceded, at least no question is raised in that regard. The subpoena or notice served upon the appellant of the time and place of hearing stated that at such time "the commission would hear and dispose of the application" in the manner provided by law. In the investigation of any matter before the commission it is not bound by the common law or statutory rules of procedure, "but may make the investigation in such manner as in its judgment is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of this title." Comp. Laws Utah, 1917, § 3149. The commission is authorized to and charged with the duty by other sections of hearing and determining compensation cases. "The commission shall have full power and authority to hear and determine all questions within its jurisdiction, pertaining to the payment of compensation and benefits, and its decision thereon shall be final. Sections 3130, 3148, "Each of the commissioners and the secretary of the commission, for the purposes mentioned in this title shall have power to administer oaths, etc. Section 3079. Comp. Laws Utah 1917, § 3100, is as fol- The foregoing conclusion is strengthened by lows:

"The commission may act through proper deputies and may delegate to such deputies such powers as it deems necessary or con

the general objects sought to be accomplished by this legislation, namely, to secure relief to injured employés, or their dependents in the event of death, without unnec

(193 P.)

possible inconvenience and expense either | resulting in death the dependents of the deto the applicant or to the state consistent ceased are given the right, within such time with justice. Much of the mining industry as by rule the commission shall prescribe, of this state is located in the southern coun- to elect between bringing suit at law against ties. To compel the attendance of witnesses such employer to recover damages for such from that part of the state, or for the com- death or accept the benefits allowed dependmission as a body to visit such industries ents of deceased employés under the act. for the purpose of taking testimony, would It is also provided that if the dependents cause inconveniences and incur expenses not elect to take under the act they will not contemplated by the Legislature, but which be entitled to sue the employer at law to rewere, on the contrary, sought to be avoid- cover damages. It is not questioned by aped. The authority to make the investiga- pellant that the right of an election of remtion "in such manner as in its (the commis- edies given to the dependents of any one sion's) judgment is best calculated to ascer- whose injury results in death, and for whose tain the substantial rights of the parties death the right of action is guaranteed by and to carry out justly the spirit of this the Constitution, contravenes or is in contitle" in no way interferes with or relieves flict with any constitutional right. The conthe commission of its duty to hear and destitutionality of such provision, however, is termine all matters relating to compensa- set at rest by the Supreme Court of the tion. The referee does not, and cannot, United States in the Arizona Employers' make any award or make any binding order Liability Cases, 250 U. S. 400, 39 Sup. Ct. respecting an award. That is a matter left 553, 63 L. Ed. 1058, 6 A. L. R. 1537. to the determination of the commission itself, when the testimony taken is submitted to and considered by the members of the commission. Taking testimony by a referee is only one manner of investigating and ascertaining the facts involved in any partic-election was without authority to make such ular proceeding.

It is also suggested that it has been the uniform custom of the commission in this state, and the custom in other states, to delegate to a referee the authority to take testimony in matters of this kind and to report the same to the commission, and that "it would seriously cripple the functions of the commission if such could not be done." Be that as it may, we are of the opinion, and so hold, that the commission is given authority to delegate to a deputy, designated herein as a referee, the power to take testimony in support of or against the application of any one asking relief before the commission. The power to take testimony necessarily carries with it the authority

to administer oaths.

[8] It is further claimed by appellant that the minor heirs, and particularly the unborn child of the deceased, are not bound by the proceedings before the commission, and that as a result the award made must fail, for the reason that if permitted to stand it might expose the appellant company to a double liability, and would result in taking property without due process of law, and deny to appellant the equal protection of the law, in violation of both the federal and the state Constitutions.

It is, however, contended that the guardian attempting to make the election in this case was not authorized or empowered to make a binding election on behalf of the minors, and that the court authorizing the

order. It appears in the record that Julia C. Rushton, the mother of the minor children, filed a petition in the district court of Salt Lake county, where said family resided, in which the necessary jurisdictional allegations were contained, to authorize the appointment of a guardian both of the persons and the estates of the minors, and it also appears that relatives of the minors residing in said county joined in the petition, and asked that the mother be appointed guardian. The order granting the petition and naming the guardian recited that proof had been made that notice had been given according to law to the relatives of the minors residing in Salt Lake county and to the person in whose care said minors

were.

ceedings for the appointment of a guardian It would seem, therefore, that procourt had jurisdiction of the parties at the were in every way regular, and that the time of making the appointment. It is, however, further objected that the proceedings before the district court, wherein the mother was named guardian of the minor children, were "entirely ex parte, and that the Utah Copper Company was in no way a party thereto." Conceding such to be the fact as shown by the record, it is pertinent to inquire, In that way was the appel

Section 5 of article 16 of our state Con- lant injured? In what way has any of its

stitution reads as follows:

"The right of action to recover damages for injuries resulting in death, shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation."

By the provisions of Comp. Laws Utah 1917, § 3127, it is provided that for injuries

rights been invaded? The right of election of remedies given to dependents of a deceased by section 3127, supra, is personal te such dependents, and the employer is in no way concerned in such election, except to the extent that he has a right to insist that the election be made by some one with legal

authority to bind the minors for whom the,sponsible for the negligence which caused election is made, and release the employer from any further liability.

It is claimed by appellant that the right given to the heirs by the Constitution to bring an action against any one negligently causing death cannot be waived by a guardian either under an order of court or otherwise, and that the court has no pow-ize an election of remedies, as it did in this er to authorize such waiver. Comp. Laws Utah 1917, § 7832, in refining the duties and authority of guardians, says: