Applying the rule that a statute, which would be unconstitutional as applied to a certain class of cases and is constitutional as applied to another class, may be construed to have been intended to apply only to the latter class if such construction seems in harmony with the general purpose of the Legislature, the workmen's compensation act must be and is interpreted as intended only to operate upon the classes of employment and injury within the jurisdiction of the General Court.

The language of the workmen's compensation act, in view of its beneficent purpose, ought not to be narrowed any further than jurisdictional bounds demand. Per RUGG, C.J.

The dependents of a carpenter who, while employed in assisting in completing an uncompleted vessel lying at dock in navigable waters, received an injury in the course of and arising out of his employment from which his death resulted, are not precluded from maintaining a claim under the workmen's compensation act, G. L. c. 152, by art. 3, § 2 of the Federal Constitution granting judicial power to the federal courts in "all cases of admiralty and maritime jurisdiction." Following Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469. Upon certification to the Superior Court under G. L. c. 152, § 11, of an order or decision of the Industrial Accident Board, entered upon a review of a decision of a single member, and of all papers in connection therewith, it is the duty of a judge of that court to whom the matter is presented to order the entry of such decree as the law requires on the facts found as disclosed in the record, even though such decree reverses rulings made by the Industrial Accident Board and is contrary to the board's decision.

Where a single member of the Industrial Accident Board and the board on review have heard a claim of a dependent of an employee for compensation under the workmen's compensation act by reason of the death of the employee, the board has decided that the claim is not within the jurisdiction of the act and, upon certification to the Superior Court of the decision and of all papers in connection therewith, the record shows explicitly that the questions raised before the board were "(1) jurisdiction; (2) dependency," it is not open to the insurer, upon an appeal from a decree of the Superior Court reversing the ruling of the board and ordering the payment of compensation, to contest in this court for the first time that the record did not warrant a decree for the dependents because there were no findings that the employee elected to come under the act and that he was not injured by his own serious and wilful misconduct. Upon the record above described, it appeared that, with the certification filed in the Superior Court was a paper entitled "Presentation of Papers," which read as follows: "Now comes.. the employee in the above-entitled cause, and presents to the Court the findings and decisions of the Industrial Accident Board on review, and all papers delivered to him, the employee, by the Industrial Accident Board, and asks that a decree be entered thereon without waiving his right to appeal on such decree as may be entered. By his Attorney, J. F. K.” J. F. K. was the name of the attorney who had represented the dependent claimants before the Industrial Accident Board. In this court for the first time the insurer contended that the case was informally entered in the Superior Court, because the presentation was not in the name of the claimants. Held, that the contention came too late, the court having jurisdiction of the cause and of the parties. From the record of the proceedings above described, it appeared that both the single board member and the Industrial Accident Board on review stated

"dependency" as one of the "questions" presented for their decision. While the entire evidence was reported, there was no express finding of fact by the single member or by the board concerning dependency. Without a finding, the judge of the Superior Court ordered the entry of a decree directing payment of compensation to two "minor children of said deceased employee." Upon the argument in this court of an appeal from the decree, the insurer did not argue the question whether dependency was established. Held, that such question must be taken to have been waived.

CERTIFICATION to the Superior Court under the provisions of the workmen's compensation act, G. L. c. 152, § 11, of a decision of the Industrial Accident Board, with accompanying papers, that the board had no jurisdiction of a claim under the act by dependents of Edward C. Gillard, who received an injury in the course of and arising out of his employment by Bethlehem Shipbuilding Corporation, which resulted in his death.

The certified copies of the decision and papers from the Industrial Accident Board were filed in the Superior Court on January 23, 1922, with a document entitled "Presentation of Papers," which read as follows: "Now comes Edward C. Gillard, the employee in the above-entitled cause, and presents to the Court the findings and decisions of the Industrial Accident Board on Review, and all papers delivered to him, the employee, by the Industrial Accident Board, and asks that a decree be entered thereon without waiving his right to appeal on such decree as may be entered. By his Attorney, J. F. Kiley." The record disclosed that the attorney who presented the claim for the claimants before the Industrial Accident Board was named Jeremiah F. Kiley.

Other material facts relating to the procedure before the single member of the Industrial Accident Board and before the board upon review and material evidence set out in the record are described in the opinion. The case was heard in the Superior Court by Hammond, J., who, by a decree described in the opinion, ordered compensation paid to the dependent children of the employee. The insurer appealed.

E. Field, (C. C. McCarthy with him,) for the insurer.
J. F. Kiley & J. D. Taylor, for the claimants.

RUGG, C.J. This is a proceeding under the workmen's compensation act. The case was heard by a board member, who stated as agreed facts that the employee received an injury in the course of and arising out of his employment on the ship "Cohasset" on

November 14, 1918, and that the employer had knowledge of the injury. He then stated that the questions were "(1) The insurer contends that the injury occurred in a ship on navigable waters and, therefore, the board is without jurisdiction; and (2) dependency." The board member made a report of the evidence, found that the injury "occurred on navigable waters," and ruled that the case was not within the jurisdiction of the board and dismissed the claim. The industrial accident board on review stated the "Questions" to be “(1) Jurisdiction; (2) dependency," found that the "report of the Board Member contains all the material evidence" and affirmed the ruling of the board member on the jurisdictional ground. The case then came before the Superior Court, where a decree was entered reciting that it "was agreed by the parties that at the time of the injury for which compensation is sought, the employee was engaged in the work of original construction of a vessel which had theretofore been launched," adjudging "that the work of the employee at the time of said injury was non-maritime in its nature," and ordering the insurer to make payments to the two "minor children of said deceased employee" at the rate of $10 per week. It was agreed that the wages of the employee were sufficiently large to entitle total dependents to that sum as the maximum.

The original claimants were Annie M. Gillard, alleged widow, and Jessie and George C. Gillard, minor children. During the hearings before the board member Annie M. Gillard withdrew as claimant, leaving the minor children as the only claimants.

The reported evidence, which was not contradicted in any particular and which manifestly formed the basis of the findings of fact of the board member and to which resort may be had as background for the findings of the industrial accident board, was in substance that the ship "Cohasset" was launched on November 3, 1918, at the Quincy yard of the Fore River Shipbuilding Corporation into the Fore River, which is navigable water; that the ship then was towed around to the dock, to which it was tied with manila and steel wire lines; that a portable gangway, which was lifted over the side of the ship and which was not secured in any way except by its own weight, was put on board for workmen to get on and off the ship; that the ship was then about seventy-five per cent completed, no engines, boilers or machinery except some

piping being then installed; that all these were put into the ship while she was tied up to the dock; that after completion the ship was delivered to the government, and that the employee was doing some kind of carpentering work in connection with the completion of the ship while she was to that end tied up to the dock.

The words of G. L. c. 152, § 1, cl. 4, are that "Employee" as used in the act, means "every person in the service of another under any contract of hire, express or implied, oral or written, except masters of and seamen on vessels engaged in interstate or foreign commerce.

The

The words of the workmen's compensation act, now G. L. c. 152, formerly St. 1911, c. 751, are broad enough in their scope to include maritime torts except and so far as jurisdiction of the General Court of Massachusetts in that particular is excluded by the grant of power to the United States in "all cases of admiralty and maritime jurisdiction." U. S. Const., art. 3, § 2; art. 1, § 8. In several instances jurisdiction under the workmen's compensation act over an injury which might have been argued to be maritime in its nature was taken without the point being raised, discussed or thought of. Gillen's Case, 215 Mass. 96. Brightman's Case, 220 Mass. 17. McManaman's Case, 224 Mass. 554. only significant point in this connection is that by a verbal interpretation of our workmen's compensation act, apart from constitutional considerations, maritime torts are included. Dorman's Case, 236 Mass. 583, 584. Although these words are broad enough, as mere matter of grammatical construction, to include strictly maritime torts exclusively within admiralty jurisdiction, yet it is familiar law (to quote the words of Chief Justice Knowlton) that "a statute which would be unconstitutional as applied to a certain class of cases, and is constitutional as applied to another class, may be held to have been intended to apply only to the latter class, if this seems in harmony with the general purpose of the Legislature." Attorney General v. Electric Storage Battery Co. 188 Mass. 239, 241. Manchester v. Popkin, 237 Mass. 434, 440. United States v. Standard Brewery, Inc. 251 U. S. 210, 220. The workmen's compensation act, therefore, must be and is interpreted as intended only to operate upon the classes of employment and injury within the jurisdiction of the General Court. On the other hand the words of the act and its chief aim render the conclusion

irresistible that the General Court intended to make the act applicable to all classes of injuries therein described which are within its jurisdiction. "The statute is as broad as the jurisdiction of the Commonwealth." Kinney v. Treasurer & Receiver General, 207 Mass. 368, 369.

In none of the cases which have come before us since the decision of Southern Pacific Co. v. Jensen, 244 U. S. 205, have we undertaken to delimit the jurisdiction of the Commonwealth under the workmen's compensation act further than to apply to specific cases the principles of that decision as we understood them. Duart v. Simmons, 231 Mass. 313; S. C. 236 Mass. 225. Sterling's Case, 233 Mass. 485. Proctor v. Dillon, 235 Mass. 538, 544, 545. Sterling v. Frederick Leyland & Co. Ltd. 242 Mass. 8. The language of that act, in view of its beneficent purpose, ought not to be narrowed any further than jurisdictional bounds demand.

So far as our own decisions are concerned, we are quite at liberty to extend the workmen's compensation act to any case to which it is applicable under adjudications of the Supreme Court of the United States, and it is our duty so to extend it in order to effectuate the intention of the Legislature.

It seems to us that the case at bar is indistinguishable on its facts from those in Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469. That was a proceeding in admiralty to recover damages for personal injuries to an employee while at work as carpenter on a partially completed vessel lying at dock in navigable waters within the State of Oregon. In that State there was operative a workmen's compensation act, which in effect gave both to employer and to employee an option to accept or reject the law and which, if not rejected, made the relief afforded thereby to the employee in lieu of all claims against his employer for injuries or death, with exceptions not here relevent. Neither the employer nor employee took the steps necessary to reject the act and thereby both came within its operation. It was held that, although the injury was maritime because occurring in navigable waters, nevertheless the exclusive features of the Oregon workmen's compensation act applied and abrogated the right to recover damages in an admiralty court which otherwise would exist. It was said, 257 U. S. 475, 476, that the contract for the construction of the vessel "was non-maritime, and although the incompleted structure upon