and irrespective of that section, such rights and remedies did not apply to maritime torts because they were inconsistent with paramount Federal law-within that field they had no existence. Were the added words therefore wholly ineffective? The usual function of a saving clause is to preserve something from immediate interference--not to create; and the rule is that expression by the legislature of an erroneous opinion concerning the law does not alter it. Endlich, Interpretation of Statutes, Sec. 372. "Neither branch of Congress devoted much debate to the Act under consideration-altogether, less than two pages of the Record (65 Cong. pp. 7605, 7843). *** Having regard to all these things we conclude that Congress undertook to permit application of Workmen's Compensation Laws of the several States to injuries within the admiralty and maritime jurisdiction; and to save such statutes from the objections pointed out by Southern Pacific Co. v. Jensen. It sought to authorize and sanction action by the States in prescribing and enforcing, as to all parties comcerned, rights, obligations, liabilities and remedies designed to provide compensation for injuries suffered by employees engaged in maritime work. "And so construed, we think the enactment is beyond the power of Congress. Its power to legislate concerning rights and liabilities within the maritime jurisdiction and remedies for their enforcement, arises from the Constitution, as above indicated. The definite object of the grant was to commit direct control to the Federal Government; to relieve maritime commerce from unnecessary burdens and disadvantages incident to discordant legislation; and to establish, so far as practicable, harmonious and uniform rules applicable throughout every part of the Union. "Considering the fundamental purpose in view and the definite end for which such rules were accepted, we must conclude that in their characteristic features and essential international and interstate relations, the latter may not be repealed, amended or changed except by legislation which embodies both the will and deliberate judgment of Congress. The subject was intrusted to it to be dealt with according to its discretion-not for delegation. to others. To say that because Congress could have enacted a compensation act applicable to maritime injuries, it could authorize the States to do so as they might desire, is false reasoning. Moreover, such an authorization would inevitably destroy the harmony and uniformity which the Constitution not only contemplated but actually established-it would defeat the very purpose of the grant. See Sudden & Christenson Industrial Accident Commission, (Cal.) 188 Pac. 803. "Congress cannot transfer its legislative power to the States--by nature this is non-delegable. In re Rahrer, 140 U. S. 545, 560; 11 Sup. Ct. 865, 35 L. Ed. 572; Field v. Clark, 143 U. S. 649, 692; 12 Sup. Ct. 495, 36 L. Ed. 294; Buttfield v. Stranahan, 192 U. S. 470, 496, 24 Sup. Ct. 349, 48 L. Ed. 525; Butte City Water Co. v. Baker, 196 U. S. 119, 126, 25 Sup. Ct. 211, 49 L. Ed. 409; Interstate Com. Comm. v. Goodrich, Transit Co., 224 U. S. 194, 214, 32 Sup. Ct. 436, 56 L. Ed. 729. "In Clark Distilling Co. v. Western Md. Ry. Co., 242 U. S. 311, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218, Ann. Cas. 1917B, 845, notwithstanding the contention that it violated the Constitution--Art. I, Sec. 8, Clause 3-this court sustained an act of Congress which prohibited the shipment of intoxicating liquors from one State into another when intended for use contrary to the latter's laws. Among other things, it was there stated that "The argument as to delegation to the States rests upon a mere misconception. It is true the regulation which the Webb-Kenyon Act contains permits state prohititions to apply to movements of liquor from one state into another, but the will which causes the prohibitions to be applicable is that of Congress,' i. e., Congress itself forbade shipments of a designated character. And further: 'The exceptional nature of the subject here regulated it the basis upon which the exceptional power exerted must rest,' i. e., different considerations would apply to innocuous articles of commerce. "The reasoning of that opinion proceeded upon the postulate that because of the peculiar nature of intoxicants which gives enlarged power concerning them, Congress might go so far as entirely to prohibit their transportation in interstate commerce. The state did less. "We can see no reason for saying that although Congress in view of the nature and character of intoxicants had a power to forbid their movement in interstate commerce, it had not the authority to so deal with the subject as to establish a regulation (Which is what was done by the Webb-Kenyon Law) making it impossible for one state to violate the prohibitions of the laws of another through the channels of interstate commerce. Indeed, we can see no escape from the conclusion that if we accept the propo sition urged, we would be obliged to announce the contradiction in terms that because Congress had exerted a regulation lesser in power than it was authorized to exert, therefore its action was void for excess of power. See Delameter v. South Dakota, 205 U. S. 93, 97, 27 Sup. Ct. 447, 51 L. Ed. 724, 10 Ann. Cas. 753. "Here we are concerned with a wholly different Constitutional provision-one which for the purpose of securing harmony and uniformity, prescribes a set of rules, employs Congress to legislate to that end, and prohibits material interference by the States. Obviously, if every State may freely declare the rights and liabilities incident to maritime employment, there will at once arise the confusion and uncertainty which framers of the Constitution both foresaw and undertook to prevent. "In the Hamilton, 207 U. S. 398, 28 Sup. Ct. 133, 52 L. Ed. 264, an admiralty proceeding, effect was given, as against a ship registered in Delaware, to a statute of that State which permitted recovery by an ordinary action for fatal injuries, and the power of a State to supplement the maritime law to that extent was recognized. But here the state enactment prescribes exclusive rights and liabilities, undertakes to secure their observance by heavy penalties and onerous conditions, and provides novel remedies incapable of enforcement by an admiralty court. See N. Y. Cent. R. R. Co. v. White, 243 U. S. 188, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, L., Ann. Cas. 1917D, 629 N. Y. Cent. R. R. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139; Southern Pacific Co. v. Jensen, supra. The doctrine of The Hamilton may not be extended to such a situation. "The judgment of the court below must be reversed and the cause remanded with directions to take further proceedings not inconsistent with this opinion." 18 Whether a tort is exclusively maritime in nature is to be determined by the locality of the act, and the fact that one is injured in the performance of a maritime contract does not in itself determine the character of the tort. So where a person was knocked from a wharf by the movement of a pile of lumber and struck upon logs and timbers in the river and there was no attempt to show that his death was the immediate result of being struck by the lumber on the wharf, it could not be said as a matter of law that the tort was maritime so as to prevent recovery under the Employers' Liability Act or Workmen's Compensation Act of California.1 19 § 47. Extra Territorial Application of Acts. Many of the American Acts expressly or impliedly provide that they shall apply to injuries received outside the state if the contract of employment was made in the state. Others omit all reference to extra territorial application, and still others expressly provide that the act shall not apply to injuries received outside the state. A substantial difficulty presents itself as to those acts which expressly state that "this act shall apply to all injuries received in this state, regardless of where the contract of employment was made, and also to all injuries received outside of this state under contracts of employment made in this state, unless the contract of employment in any such case shall otherwise provide. It will be noticed that such provisions deny jurisdiction to the acts of other states over injuries received in "this state" if the contract of employment was made in some other state, but give 18. Knickerbocker Ice Co. v. Stewart, 252 U. S., 40 Sup. Ct. R. 438, 6 W. C. L. J. 119; Berg v. Philadelphia & R. Ry. Co., 266 Fed. 591, 6 W. C. L. J. 621; Lund v. Griffith & Sprague, Wash. 183 Pac. 123, 4 W. C. La. 86 So. 815 (1921); . L. J. 654; Lawson v. N. Y. & P. R. S. S. Co., -- Ore., 195 Pac. 163. themselves jurisdiction in similar cases. The question therefore arises as to which law applies where a contract of employment is made in a state whose act contains the above provisions but the injury occurs in another state whose act has a similar provision. It would appear, therefore, in the case of an employee injured in Missouri, in the performance of a contract made in Indiana, that he would have the right at his option to proceed against his employer either under the Missouri Act, or the Indiana Act, or perhaps even under both, as in reply to the contention that to give an Act extra territorial operation might permit a double recov ery, the New Jersey Court said: "Recovery of Compensation in two states is no more illegal, and is not necessarily more unjust, than recovery upon two policies of accident or life insurance. ''20 To thus allow double recovery, is in the author's opinion bad policy and contrary to one of the fundamental principles of Workmen's Compensation, in that if the employee were to receive more compensation while disabled than while working the temptation to malinger and prolong his period of disability would be great. In addition this would be penalizing the employer for his industry in extending his business to other states. Not to mention questions of interstate comity and res adjudicata. The author prefers in such cases as a matter of comity, the theory of concurrent jurisdiction. While elective acts are by most American authorities considered contractual, in that they become part of the contract of employment and are held to follow the employee to the place of performance of the contract, 22 regardless of express language to 20. Rounsaville v. Central R. Co., 87 N. J. Law, 371, 94, Atl. 392. 22. Gooding v. Ott, 77 W. Va. 487, 87 S. E. 862; State v. District Court, 139 Minn. 305, 168 N. W. 177, 2 W. C. L. J. 524; Hagenbach v. Leppert, 64 Ind. App. 177 N. E. 531. 1 W. C. L. J. 64; Shanahan v. Monarch Engineering Co., 219 N. Y. 469, 114, N. E. 795; Jenkins v. Hogan & Sons, 177 App. Div. 36, 163 N. Y. S. 707; Industrial Comm. v. Aetna Life Ins. Co., 64 Colo. 480, 174 Pac, 589, 2 W. C. L. J. 759; Grimmell v. Wilkinson, 39 R. I. 447, 98 Atl. 103; Pierce v. Bekins Van & W. C.-15 |