Opinion Per RUDKIN, C. J.

[58 Wash.

make payments on such estimates a release of the surety would doubtless be urged on that ground. While the superintendent was nominally and in fact the agent of the building committee, under the provisions of the building contract, he was the agent of all parties concerned for the purpose of furnishing these estimates, and the appellant having acted upon them in good faith and without fraud, we have no hesitation in saying that its conduct in that behalf did not release the surety.

It is next contended that payments were made by the appellant without requiring the contractors to produce receipts, showing that all claims for labor and material for the previous month had been paid. If such were the agreement of the parties, the question thus presented is not free from difficulty, but we do not so read their contract. The provision above quoted from the specifications required the contractors to file receipts with the superintendent and building committee, showing that each and every subcontractor had been paid in full to the amount of the estimates, as per the certificate of the previous month. This did not require the superintendent or committee to exact receipts for all claims for labor and material. The term subcontractor has a well defined meaning in building contracts, and the word was doubtless used here in its technical sense. A subcontractor is one who takes from the principal contractor a specific part of the work, and the term does not include laborers or materialmen. Farmers' Loan & Trust Co. v. Canada & St. Louis R. Co., 127 Ind. 250, 26 N. E. 784, 11 L. R. A. 740. The testimony is indes to what, if any, part of the work was done by subcontract, but there is no testimony in the record tending to show that any claims were paid without the production of the requisite receipts from subcontractors.

It is next contended that the superintendent did not audit or certify to the cost of completing the building after the abandonment by the contractors, prior to the commencement of the present action. There would be force in this contention

May 1910]
Opinion Per RUDKIN, C. J.

if the building was completed by the owner after the abandonment under the terms of the original building contract, but the respondent reserved the right to complete the building itself under the terms of its bond, in case of an abandonment by the original contractors, and waived that right after such abandonment, on condition that the contract for completing the building should be let to the lowest of three bidders who should give a bond for the faithful performance of the contract. The building was completed under this special contract, and the contract as let fixed the cost of the work. There was no claim to audit under such circumstances, and the provision for auditing in the original contract has no application.

It is further contended that the claim for demurrage should have been audited and certified by the superintendent, and this is perhaps true, but inasmuch as other valid claims exceed the penalty of the bond, a discussion of that question would serve no purpose. Other questions are discussed in the briefs, but they require no special consideration. The respondent is disposed to criticize the appellant for letting the contract to a copartnership that had undertaken contracts to the amount of $200,000 on a capital of $400, but it seems to us that that question concerned the surety more than the owner. The surety is the party who guaranteed the faithful performance of the contract, although it seems to have lost sight of that fact, and is now seeking to satisfy the obligation of its bond by showing slight irregularities on the part of the owner, rather than performance of the contract by the principals. On the entire record, we are convinced that no substantial or meritorious defense to the action exists, and the judgment is accordingly reversed, with directions to enter judgment in favor of the appellant and against the respondent for the full penalty of the bond, with interest from date of commencement of the action.

CROW, DUNBAR, PARKER, and MOUNT, JJ., concur.

[No. 8328. Department Two. May 11, 1910.]

JYNTARO TSMURA, Respondent, v. GREAT NORTHERN
RAILWAY COMPANY, Appellant.1

MASTER AND SERVANT-INJURY TO SERVANT-FELLOW SERVANTS— STATUTE-CONSTRUCTION. A common laborer engaged in loading a flat car with rails that had been used in repair work, who was injured through the negligence of co-employees in the same work, is not engaged in interstate commerce, within the meaning of the Employer's Liability Act, 35 Stats. 65, making common carriers by railroad while engaged in interstate commerce liable for injuries to employees resulting from the negligence of co-employees, it not being shown where the rails came from or were to go.

SAME. To avail oneself of the benefit of such statute, the burden of proof is upon the plaintiff to show that his duties directly pertained to, and were a part of, interstate commerce.

Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered May 7, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries. Reversed.

F. V. Brown and A. J. Laughon, for appellant, contended, among other things, that the attempted regulation of master and servant by the employer's liability act is not within the powers conferred upon Congress by art. 1, § 8 of the Federal constitution and is an unlawful infringement upon the powers reserved to the states by the tenth amendment. County of Mobile v. Kimball, 102 U. S. 691; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; In re Rahrer, 140 U. S. 545; Robbins v. Shelby County Taxing District, 120 U. S. 489; United States v. Knight Co., 156 U. S. 1; Hooper v. California, 155 U. S. 648; Paul v. Virginia, 8 Wall. 168; Philadelphia Fire Ass'n v. New York, 119 U. S. 110. The act violates the fifth and fourteenth amendments in that it adopts an arbitrary and unreasonable classification, and the liabil'Reported in 108 Pac. 774.

ity is not based upon the hazardous character of the employment in which the employee may be engaged. Gulf, Colorado & S. F. R. Co. v. Ellis, 165 U. S. 150; State v. Loomis, 115 Mo. 307, 22 S. W. 350, 21 L. R. A. 789; Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Akeson v. Chicago, B. & Q. R. Co., 106 Iowa 54, 75 N. W. 676; Smith v. Burlington C. R. & N. R. Co., 59 Iowa 73, 12 N. W. 763; Pearson v. Chicago, M. & St. P. R. Co., 47 Minn. 9, 49 N. W. 302; Johnson v. St. Paul & D. R. Co., 43 Minn. 222, 45 N. W. 156, 8 L. R. A. 419; Lavallee v. St. Paul M. & M. R. Co., 40 Minn. 249, 41 N. W. 974; Schroeder v. C. R. I. & P. R. Co., 41 Iowa 344; Potter v. C. R. I. & P. R. Co., 46 Iowa 399; Malone v. Burlington C. R. & N. R. Co., 61 Iowa 326, 16 N. W. 203, 47 Am. Rep. 813; Luce v. Chicago etc. R. Co., 67 Iowa 75, 24 N. W. 600; Foley v. Chicago etc. R. Co., 64 Iowa 644, 21 N. W. 124; Matson v. Chicago etc. R. Co., 68 Iowa 22, 25 N. W. 911; Reddington v. Chicago, M. & St. P. R. Co., 108 Iowa 96, 78 N. W. 800; Jemming v. Great Northern R. Co., 96 Minn. 302, 104 N. W. 1079, 1 L. R. A. (N. S.) 696; Southern Indiana R. Co. v. Harrell, 161 Ind. 689, 68 N. E. 262, 63 L. R. A. 460; Missouri Pac. R. Co. v. Mackey, 127 U. S. 205; Tullis v. Lake Erie & W. R. Co., 175 U. S. 348; Minnesota Iron Co. v. Kline, 199 U. S. 593; Chicago, K. & W. R. Co. v. Pontius, 157 U. S. 209.

McWilliams & McWilliams, for respondent, contended, among other things, that the act is constitutional. Railroad Companies v. Schutte, 103 U. S. 118; Jones v. Habersham, 107 U. S. 174; Michael v. Morey, 26 Md. 239, 90 Am. Dec. 106; Adair v. United States, 208 U. S. 161, 178; Watson v. St. Louis etc. R. Co., 169 Fed. 942, 944; Spain v. St. Louis etc. R. Co., 151 Fed. 522; Snead v. Central of Georgia R. Co., 151 Fed. 608; Plummer v. Northern Pac. R. Co., 152 Fed. 206; Kelley v. Great Northern R. Co., 152 Fed. 211. The plaintiff is within the provision of the em

ployer's liability act. Stubbs v. Omaha etc. R. Co., 85 Mo. App. 192; Callahan v. St. Louis Merchants' Bridge Terminal R. Co., 170 Mo. 473, 71 S. W. 208, 94 Am. St. 746, 60 L. R. A. 249; Id., 194 U. S. 628; Union Pac. R. Co. v. Harris, 33 Kan. 416, 6 Pac. 571; Atchison etc. R. Co. v. Brassfield, 51 Kan. 167, 32 Pac. 814; Atchison etc. R. Co. v. Koehler, 37 Kan. 463, 15 Pac. 567; Chicago etc. Co. v. Stahley, 62 Fed. 363; Snead v. Central of Georgia R. Co., and Kelley v. Great Northern R. Co., supra; Thornton, The Employers' Liability and Safety Appliance Acts, Ed. 1909, p. 50, note. The act is remedial and is to be liberally construed. Johnson v. Southern Pac. Co., 196 U. S. 1; Thornton, The Employers' Liability and Safety Appliance Acts, Ed. 1909, p. 114. The classification adopted is not within the prohibition of the fourteenth amendment. Watson v. St. Louis etc. R. Co., 169 Fed. 942; Missouri Pac. R. Co. v. Mackey, 127 U. S. 205; Minneapolis & St. Louis R. Co. v. Herrick, 127 U. S. 210; Chicago etc. R. Co. v. Pontius, 157 U. S. 209; Tullis v. Lake Erie & W. R. Co., 175 U. S. 348; Sweet v. Rechel, 159 U. S. 380, 392.

CROW, J.-Action by Jyntaro Tsmura against Great Northern Railway Company, a corporation, to recover damages for personal injuries. From a judgment in his favor, the defendant has appealed.

The appellant contends that the trial court erred in overruling its demurrer to the complaint, its objection to the introduction of evidence, its challenge to the sufficiency of the evidence, and its motion for a directed verdict. Respondent, in substance alleged that the appellant is a duly organized railway corporation, organized under the laws of the state of Minnesota, doing business as a common carrier by railroad in that state and in the states of Washington and Montana; that the respondent was employed by the appellant at an agreed wage or hire in the capacity of a common laborer in the state of Montana; that on July 6, 1908, the respondent