was simply a mine employee, not wholly employed without the state, and no apportionment of his wages could be made to arrive at the premium basis of his employer. Still he remained an "employee," and the Davis Coal & Coke Company remained his "employer," "within the meaning of this act, and subject to its provisions."

We find the next consequences of this relation of employer and employee, as to the Company and Gooding, in Section 19, which was slightly amended by the Regular Session of 1915, and slightly re-amended by the first Extra Session of 1915. By its provisions, the Compensation Fund is created and the purposes of the fund are declared. It is created of moneys paid thereto as "premiums" and other funds by way of advance premiums for guarantee purposes) by “employers and employees as herein provided." Reading this provision with Section 9, it clearly means that this fund is constituted of contributions based upon wages earned by employees who are not employed wholly without the state; who are not forbidden by law to be employed; who are not traveling salesmen; not domestic or farm laborers; not members of a firm nor officers, etc., of a corporation. Clearly, then, Gooding's status made him and his employers contributors to this Fund. The record shows they actually did contribute upon the full amount of Gooding's wages, and there was no legal excuse for refusal to do so because the above cited provisions of Section 18 for apportioning wages had been repealed by the Legislature of 1915, even if those provisions authorized apportionment. The purposes of the creation of this fund are likewise declared by Section 19; they are three in number (a) "for the benefit of employees of employers that have paid the premiums applicable" to them; (b) "for the benefit of dependents of such employees;" (c) "for the payment of the expense of administration of the act." Clearly, then, we submit, being within the statutory "employer" and "employee" class as fixed by section 9, and clearly within the premium contributing class as fixed by the language of section 19 creating the Fund, the Davis Coal & Coke Company, Gooding's employer, and the appallant, Gooding's dependent widow and baby had a clear statutory right to expect that these dependents would derive these "benefits" in the manner and to the extent provided by the statute.

We find the next consequence of this relation of employer and employee as to the Company and Gooding in section 22 as finally amended by the Regular Session of 1915. It declares that an employer subject to this act (which must mean an employer who comes within the definition of that term in section 9) who shall elect to pay into the Fund the premiums provided by the act (which must mean premiums based upon wages earned by employees as that term “employees" is defined and limited in section 9) shall not be liable in damages at common law or by statute for the injury or death of an employee, however occurring, after such election and during any period in which the employer shall not be in default in his payments. This is a positive, clean cut benefit to the employer and it is to be regarded as a positive deprivation of ordinary right of action at law, under the old system, to employees for the recovery of damages on the theory of negligence. Applying it concretely to Gooding, and laying aside the fact that he was killed in Maryland, on the facts of the record there is no statute or common law right of action for his death. Upon the fact however, that he was killed in Maryland we are not unmindful, in considering the accident alone that a right of action might exist in the State of Maryland, providing jurisdiction of the defendant in that state might be obtained; or such right of action

might be maintainable in the State of West Virginia, in which the law of Maryland applicable to such cases would be applied provided, however, the State of Maryland in its wisdom has not also destroyed common law or statutory rights of action for negligent deaths and substituted a system similar to ours. But inasmuch as it is recognized that a "compensation system" is far more beneficial, speedy and advantageous then a recourse to the uncertain, dilatory common law action for damages, it is proper and right to assume that the dependents of this dead man would much prefer to adopt (as they have) the course of obtaining compensation from the Compensation Fund, than to fall back upon any uncertain, unsatisfactory remedy, that might be obtained through a common law action, either in the Court of Maryland or in the Court of West Virginia. We submit, by reading sections 9, 19, and 22 together, the conclusion is amply justified that, in return for the exemption from liability from common law action given to the employer, and by virtue of the premium paid, the employee or his dependents are given the more desirable compensation from the Fund by way of insurance; and that it is clearly intended this compensatory remedy shall extend to all employees who are not specifically excluded from the definition given in section 9; and therefore this Compensation would be available to the dependents of Gooding, because Gooding was not employed "wholly without this state."

We find the next consequence of this relation of employer and employee as to the Coal Company and Gooding expressed in section 24 of the act, which stands now as finally amended by the Regular Session of 1915. This section lays down the certain rule of ascertaining the amount of "premium of liability" to be contributed by the employer and the employee into the Fund. It declares that this premium shall be such percentage of the payroll of the employer as may have been determined by the Commissioner. It declares that this premium shall be contributed in the proportion of 90% by the employer and 10% by the employee; and it declares absolutely and without exception that the basis of ascertaining the premium to be paid is "the total earnings of all employees subject to the act for the preceding month." A further proviso seems to leave it to the option of the employer whether he will deduct the 10 per cent from the employee's earnings or whether he will pay it himself; but this proviso is not material, as the record shows in this case that this 10 per cent was actually deducted from Gooding's wages. But reading this section along with sections 9, 19 and 22, the conclusion is certain that the total payroll, made up of earnings of all employees, except the specifically excluded classes, including unquestionably the total earnings of employees who earn part of their wages within and part of their wages without this state, is the basis of ascertaining the amount of premiums to be paid. Looking now, in this connection, to section 26, which has not been amended, we find that "all employers subject to this act, who shall not elect to contribute to the fund, or who are in default in their payments, are penalized by being deprived of their "common law defense" and rendered defenseless against damage claims based upon the employer's negligence. We submit, therefore, it is absolutely required by this statute, in order for the Davis Coal & Coke Company to have obtained exemption from liability to any of its employees in common law actions for injuries or deaths of any employees, it was obliged to pay a premium upon every employee (not expressly excepted), including not only those employees who performed all their services in West Virginia, but also upon Gooding, who earned a part of his wages across the state line in Maryland and the other part of his wages within the State of West Virginia; and it had no right under

the law to apportion those wages. We mean to say the conclusion is certain that if any employer, who has elected to comply with our Compensation Law, fails in the slightest instance in any month to include all the wages of all its employees (except the expressly excluded classes) in making up its payroll basis for ascertaining its premium contribution, then if any accident occurs in its mine during such month that employer loses the exemption from Court actions specified by section 22 of the act, and becomes liable to be prosecuted in Court under the terms of section 26 of the act. Therefore, if by reason of the fact that this man Gooding had earned part of his wages last June in the State of Maryland, which clearly he did do, the Davis Coal and Coke Company had not carried his Maryland earnings into its payroll and into its premium contribution upon such payroll, for that month of June, then every injured employee of that Company whose injury occurred in the month of June, could have maintained and may still maintain a right of action in court against that Company for such injury. As a result of this state of the law, the Davis Coal and Coke Company and every other , employer in the State of West Virginia who has elected to abide by this act, has been coerced, literally we might say, into contributing to the compensation fund upon the basis of wages which have not been earned in the State of West Virginia. It is not mere speculation which tells us that there are certainly numerous employers of labor in the State of West Virginia who employ men who earn part of their wages beyond our state lines. The industries conducted on our western border on the Ohio River; along our northern border lines with the State cf Pennsylvania; along our eastern border lines with the States of Maryland and Virginia, and along our southern lines with Virginia and Kentucky embrace many businesses, in the conduct of which, some employees every day earn part of their wages outside of the border lines of this State. The enforced contributions to the Compensation Fund by the employers of those employees must necessarily amount to a handsome sum each month, and there is now no legal method of apportioning their wages, but the contributions must be made upon a basis which includes their entire earnings, or their employers derive absolutely no benefit whatsoever by way of exemption from liability in court actions at the suit of any of their injured employees. It is a perilous thing how to omit an employe.

Having seen by the foregoing how this Compensation Fund is constituted and the purposes for which it is constituted and the benefits and immunities intended to flow and flowing from its creation, we lock next to the system, provided by the statute for the disbursement of the Fund in order to give the employees the financial benefits which it is intended they shall derive from the Fund. This system and the amounts prescirbed, and the rules to govern the disbursements are contained in Section 25 of the act, as finally amended by the First Extraordinary Session of 1915; section 27, section 28, section 29, section 30, and section 31, all as amended by the Regular Session of 1915; section 32 as originally enacted in 1913; section 33, section 34, and section 35, all as amended by the Regular Session of 1915; section 36 as originally enacted in 1913; and sections 37, 38, 39, 40, and 41, as amended by the Regular Session of 1915. This system of disbursement of the benefits is hedged about by numerous salutary rules and regulations, and it is obvious that there are instances specially named in which no financial benefits shall be paid. For instance, under section 28 no disbursement shall be made for a self-inflicted injury, which of course could not reasonably be "in the course of and resulting from employment;" no disbursement can be made for an injury resulting from willful misconduct or for willful disobedience

of the prescribed operating rules of the employer, or from the intoxication of the employee, because, we submit, no one will seriously question the conclusion that if disbursement were to be authorized for injuries so resulting, such requirements would render this legislation clearly in violation of both Federal and our State Constitutions. By section 30 no disbursement shall be made except for “first aid" in the event that disability does not continue one week, and if the injury continues longer than one week the first week shall be excluded from the period of disbursement. All will agree, we think, that this is a salutory provision fully justified and legally enforceable for the discouragement of imaginary claims or malingerers. By section 36 an abandoned widow or widower is excluded from receiving disbursements, providing the abandonment continued for twelve months next preceding the injury, and the widow or widower, was not supported by the injured employee during such time; nor to a widow or widower who was living separate and apart from the injured employee for twelve months unsupported by the employee. Clearly the exclusions are justified because such widow or widower is not a “dependent,” and therefore equitably should have no claim upon the Fund. By section 39 of the act a reasonable period of limitation is fixed for the filing of the application for the disbursement, and a reasonable limitation is provided for the filing of proofs of dependency. We think no one will question the justice and right of reasonable limitations or regard them as legally unwarranted by a legislative act.

But section 25 of the act, by its letter, does exclude, seemingly, another class of employees or their dependents from receiving disbursements from the Fund, even though the injuries are received in the course of and resulting from the employment; and it is with this seeming exception or exclusion that we are vitally concerned. This section 25 has been twice amended since its original enactment, the last amendment being by the First Extraordinary Session of 1915; and as then enacted and amended was a part of the statute when Gooding was killed in July, 1915. This section as it stands, declares that disbursements from the Fund shall be to employees of such employers as have paid the premiums for the month in which the injury occurs, or who have paid the required guarantee deposit, and to such employees as "shall have received injuries in this state in the course of and resulting from their employment, or to the dependents, if any in case death ensued,” etc. A literal application and enforcement of the letter of this provision, as made by the Commissioner in this case, has excluded the appellant from receiving disbursements. As we have heretofore shown, both the Coal Company and Gooding are clearly within the statutory definitions of employers and employees; we have clearly shown that there could have been no lawful apportionment of Gooding's wages on the basis of the portion earned without and the portion earned within this State; we have shown that the fund was created for the benefit of the employees or their dependents, within the meaning of the definition of employees contained in section 9 of the act; we have shown that an employer, within the definition of section 9 of the act, who has contributed the premium, is exempt from common law liability; we have shown that the premiums must be upon the total payroll of the employer, which payroll must be made up of the total earnings of all employees, even if some of the employees earn part of their wages within and part without the state. The record shows in this case that there has been a full recognition and compliance by both the employer and Gooding of the above mentioned statutory requirements as to payments made. Notwithstanding this, simply because

Gooding happened to be killed a few feet beyond the state line, all these payments made in strict conformity with the law are regarded by the Commissioner as giving no benefit to Gooding's dependents. During the period of his employment the Davis Coal and Coke Company has been exempt from liability at common law, and Gooding has felt that he had reasonable protection for himself and his little family in the event that the hazards of his employment did result in his injury or death. We feel that, literally, hundreds of other employees who serve industries of our state are exactly in the position of this man Gooding, and his dependents, and that grave injustice has resulted in this case, and may result in numerous other like cases if the Commissioner's ruling is adhered to; and that the Compensation Fund has been enriched by thousands of dollars of contributions which will not go to these parties to whom the law intended they should go, but shall be devoted entirely to different objects and purposes. Notice right here, that this seeming denial of Compensation for an injury received outside this state stood in section 25 as originally enacted in 1913. Even when the provision for apportion.ng wages and the provision that the 'ccation of a mine tipp'e or principal mine entrance determined a miner's "place of employment" stcod in the statute, still a miner could not, seemingly, according to section 25, have obtained compensation if injured without the State of West Virginia. Nor could any other employee, so injured, have obtained compensation. It seems that the only purpose then of the provision of original section 18 fixing a miner's place cf employment as in the state wherein the tipple or entrance was located, was to deny to a mine owner the right to apportion his employee's wages as earned in part within and in part without this state. All other employers were obliged to apportion such wages. We submit therefore that these omissions from section 18, by the 1915 revision, do not affect the point at issue one way or the other. The Davis Coal and Coke Company could not have apportioned Gooding's wages because its tipple is in West Virginia. It would have been obliged to pay on the basis of his whole wages—and still Gooding could have received no compensation for an injury received in Maryland, if section 25 is to be construed as the Commissioner applies it.

By the rules of interpretation and construction of statutes herein before cited we submit that the Commissioner by his ruling in this case, has failed to recognize that the voice of society, speaking through our Legislature, calls for the greatest possible relief from the burden upon the public at large of supporting dependents of laborers who may lose their lives in the productive industries by which cur great state thrives; and demands that this burden shall be carried directly by those industries. We submit that the Commissioner has failed to recognize the true intention and spirit of this law, and has adhered to the strict letter of one isolated clause of the statute and ignored the very fundamental principles and rules upon which the whole system of compensation is created. We submit that, in construing the clause of section 25, the Commissioner should have eliminated instead of created the conflict and repugnancy which seems to exist be tween that special clause and the provisions of sections 9, 19 and 24. We submit that by the Commissioner's construction and application of this statute in this case he has given an effect which works the grossest injustice to hundreds of confiding employees who are obliged to earn their bread by service rendered to employers incidentally in part beyond our border lines. It might be argued that the construction given to this statute by the Commissioner in this case is permissible within the express terms of the act, because other contributing employees