Foster v. Dept. of Labor Industries , 161 Wash. 54 ( 1931 )

I am unable to concur in the latter part of the opinion denying an allowance for the child of the injured workman, born in lawful wedlock after the injury.

Possibly, if no practical construction had been placed upon the act, I might follow the construction now placed upon it by the majority; but, since the Attorney General, more than ten years ago, ruled, as indicated in the majority opinion, that an allowance should be made to an injured workman on account of a child born subsequent to the injury, and since, apparently, that ruling has been followed by the department, acquiesced in by those who contribute to the fund, and, though the legislature has met many times since, there has been no effort to change or clarify the law, I am constrained to believe that the construction placed upon the act by the Attorney General should be followed, and that it is controlling in this case.

The mere fact that, in the particular case considered by theAttorney General, the workman was married at the time of the injury, does not in my judgment affect the situation. Marriage is favored by the law, and a workman, though injured, has the legal right to marry, and the law encourages his doing so. Having married, he, at the time of the birth of his child, was in exactly the same position before the law as was the workman particularly in the mind of the AttorneyGeneral when the opinion was written, and the allowance for this child should be sustained.

A construction by the chief law officer who is the legal adviser of the department, concurred in by the department and by all concerned for more than ten years, should prevail if the statute can reasonably be construed so as to permit it to prevail. State ex rel. Cowles v. Schively, 63 Wash. 103,114 P. 901; State ex rel. Ball v. Rathburn, 144 Wash. 56,256 P. 330.

In my judgment, the statute should be thus construed, and I therefore dissent from that part only of the opinion of the majority denying an allowance on account of the minor child born in lawful wedlock after the date of the injury.