maintenance-of-way through engineering or bookkeeping might be done by so-called "independent" corporations. The application of this Act and of the other Acts passed for similar purposes and embodying the same language could be so severely limited as to render them of little worth in achieving the purpose for which they were passed.

There is essentially very little difference between the arrangement in the instant case and one in which you would negotiate with a retired locomotive engineer to operate one of the railway's locomotives as an independent contractor, delegating to such engineer the authority to employ his own fireman and other trainmen. To sanction such an arrangement would defeat the purpose of the Railroad Retirement and Railroad Unemployment Insurance Acts.

It is held that both R and the individuals engaged to assist him are “employee[s]" under the Railroad Retirement and Railroad Unemployment Insurance Acts.

SECTIONS 5(a) AND 5(1)(1) OF THE RAILROAD RETIREMENT ACT-MEXICAN DIVORCE

20 CFR 237.303

L-61-98.1

The Mexican divorce obtained by A who died domiciled in New York, is void under New York law, and did not dissolve his first marriage with the consequence that he could not effect a valid marriage with another.

The issue is whether the divorce granted A on December 8, 1950, at Juarez, Mexico, purporting to dissolve his marriage to B, may be recognized as valid. Section 5(a) of the Railroad Retirement Act provides:

Widow's and Widower's Insurance Annuity.—A widow or widower of a completely insured employee, who will have attained the age of sixty, shall be entitled during the remainder of her or his life, or, if she or he remarries, then until remarriage to an annuity for each month equal to such employee's basic amount:

Section 5(1)(1) of the Railroad Retirement Act provides:

In determining for purposes of this section [which provides benefits for survivors of employees] and subsection (f) of section 2 whether an applicant is the wife, husband, widow, widower, child, or parent of an employee as claimed, the rules set forth in section 216(h)(1) of the Social Security Act, as in effect prior to 1957, shall be applied.

Section 216(h) (1) of the Social Security Act as in effect before 1957 provides:

In determining whether an applicant is the wife, husband, widow, widower, child, or parent of a fully insured or currently insured individual for purposes of this title, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or if such insured individual is or was not so domiciled in any State by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a wife, husband, widow, widower, child, or parent shall be deemed such.

The employee, A, died August 3, 1960, domiciled in New York and under the provisions quoted above the laws of that State must be applied. He had been ceremonially married to B on June 16, 1932, and obtained a divorce from her on December 8, 1950, at Juarez, Mexico. On December 23, 1950, he was ceremonially married to C at Colebrook, Conn., and he lived with her until his death. C received a spouse's annuity from July 21, 1959, through July 31, 1960, and has filed for a widow's annuity.

B has submitted evidence of her ceremonial marriage to A and a copy of a decree of Separate Maintenance and Support issued June 8, 1949, in the Supreme Court of Washington County, New York, against A. She has alleged that she knew nothing of any divorce, and that A made payments for her support as ordered until his death. She has filed an informal claim as his "widow."

A certified copy of the divorce decree granted A on December 8, 1950, at Juarez, Mexico is in file. From the decree and the evidence in file, it could not be determined whether either A or B appeared personally in the Mexican Court or whether or not B accepted service, or appeared personally or by attorney. This case was returned for further development concerning these questions.

In a statement dated April 26, 1961, B informed the Board:

The first I knew that my husband, A, had secured a divorce from me in Mexico was not until after he died. I did not go to Mexico and have never been there and did not appear before the court granting the divorce. I do not know whether A went to Mexico to get the divorce or not. In 1950 and after, and before, my permanent residence was 179 Main St., Hudson Falls, N.Y. A left me before 1950 and after that, as far as I know, he resided in New York State until he died. He lived mainly in Saratoga, N.Y.

I had no knowledge of the divorce and did not consent to it. I answered no questions in writing in or for the divorce proceedings. I was served with no notice of any kind of divorce action and knew nothing about it until he died.

A Board representative prepared a statement for signature for C after discussing the circumstances of the employee's divorce. Although she returned it unsigned, she submitted a statement which reads:

I went to school with A and knew him all my life. I started keeping company with him in Jan. 1947 and we were married Dec. 23, 1950 at Colebrook, Connecticut.

I know that A did go to Juarez, Mexico. I saw him shortly before he left and immediately after his return. He also had an attorney to represent him in Mexico.

Amongst Mr. A's papers and a copy of the Decree which you have, an Attorney in New York City, whose address is 280 Broadway, New York, New York, appeared for him and conducted the proceedings and I believe you can contact him for any information necessary.

She informed the Board representative that she knew for a fact that A went to Juarez, Mexico in November, 1950, and did appear personally before the Mexican Court; that he was absent from his home at Saratoga, N.Y., for about a week or two; that he went alone; that as far as she knew B did not go to Mexico or appear before the court; that A was a resident of New York State when he secured the divorce; and that B was also a resident of New York State.

A Mexican "mail order" divorce where neither party personally appeared in court and neither party was domiciled in Mexico is void under the law of New York. (Associate General Counsel's opinion L-59–395.)

In this case there is some evidence that A appeared personally in the Mexican Court which granted his divorce, although he was not domiciled in Mexico at any time. Since he appeared personally, this is not a "mail order" divorce. However, the defendant in the divorce suit, B, did not appear personally or by attorney, and there is evidence that she was not aware of the suit and did not consent in any way to it.

New York courts under some circumstances will hold a Mexican divorce valid where one of the parties appeared personally and the other appeared by a duly authorized attorney in the divorce proceedings in Mexico. (MacPherson v. MacPherson, 140 N.Y.S. 2d 55 (N.Y. 1955).)

However, under New York law, a Mexican divorce is void even though one of the parties appeared personally where, as here, the other party did not voluntarily appear either personally or by a duly authorized attorney. (Molnar v. Molnar, 131 N.Y.S. 2d 120 (N.Y. 1954).)

Accordingly, it is held that the divorce granted A on December 8, 1950, at Juarez, Mexico, may not be found to have dissolved his marriage to B, with the consequence that the marriage he later attempted to effect was not valid.

SECTION 1(b) OF THE RAILROAD RETIREMENT ACT-EMPLOYEES COVERED BY THE RAILROAD RETIREMENT ACT

20 CFR 203

L-61-105

The staff members of a Canadian Railway Board of Adjustment are employees of such board and, therefore, are not covered by the Railroad Retirement Act. The question is whether the Secretary of the Canadian Railway Board of Adjustment No. 1 may be considered as covered by the Railroad Retirement Act.

Section 1(b) of the Railroad Retirement Act provides in part:

(b) The term "employee" means (1) any individual in the service of one or more employers for compensation, (2) any individual who is in the employment relation to one or more employers, and (3) an employee representative. The term "employee" shall include an employee of a local lodge or division defined as an employer in subsection (a) only if he was in the service of or in the employment relation to a carrier on or after the enactment date. The term "employee representative" means any officer or official representative of a railway labor organization other than a labor organization included in the term "employer" as defined in section 1(a) who before or after the enactment date was in the service of an employer as defined in section 1(a) and who is duly authorized and designated to represent employees in accordance with the Railway Labor Act, as amended, and any individual who is regularly assigned to or regularly employed by such officer or official representative in connection with the duties of his office.

The information available concerning this board of adjustment is that it was established under an agreement dated August 7, 1918, as supplemented by agreement of August 15, 1921, between the Railway Association of Canada, acting for certain railways which conduct all or the principal part of their business in Canada and six international railway labor organizations. The

board consists of 12 members, of whom 6 are selected, and paid for their services, by the railways, and 6, selected and paid for their services, by the labor organizations. This board meets at various times and decides controversies between members of the respective groups in accordance with procedure spelled out in the agreement. Under this agreement, "clerical and office expenses will be borne equally by the Railway Association of Canada and the organizations mentioned above."

Coverage by the Railroad Retirement Act is restricted to "employees" of "employers," and although the money to pay the salaries of the Secretary and other staff members comes partly from the labor organizations who are "employers" covered by that Act and partly by the railways who are such "employers" as regards service to them in the United States, the employing unit (though apparently not a corporation) is the board of adjustment. Section 1(a) of the Railroad Retirement Act provides in part:

(a) The term “employer” means any carrier (as defined in subsection (m) of this section), and any company which is directly or indirectly owned or controlled by one or more such carriers or under common control therewith, and which operates any equipment or facility or performs any service (except trucking service, casual service, and the casual operation of equipment or facilities) in connection with the transportation of passengers or property by railroad, or the receipt, delivery, elevation, transfer in transit, refrigeration or icing, storage, or handling of property transported by railroad, and any receiver, trustee, or other individual or body, judicial or otherwise, when in the possession of the property or operating all or any part of the business of any such employer: Provided, however, That * * *. The term "employer" shall also include railroad associations, traffic associations, tariff bureaus, demurrage bureaus, weighing and inspection bureaus, collection agencies and other associations, bureaus, agencies, or organizations controlled and maintained wholly or principally by two or more employers as hereinbefore defined and engaged in the performance of services in connection with or incidental to railroad transportation; and railway labor organizations, national in scope, which have been or may be organized in accordance with the provisions of the Railway Labor Act, as amended, and their State and National legislative committees and their general committees and their insurance departments and their local lodges and divisions, established pursuant to the constitution and bylaws of such organizations.

The board of adjustment, as the employing unit, could not, it is believed, be considered as meeting any of the qualifications for "employer" status under the Railroad Retirement Act, since, obviously, the board is not itself a carrier by railroad, express company, or sleeping car company, subject to the Interstate Commerce Act, or a company, association, bureau or agency owned or controlled by one or more of such carriers or companies, or a national railway labor organization itself, or a "State or National legislative committee," "general committee," "insurance department," or "local lodge or division" of such a national organization.

Moreover, it is believed that even apart from the circumstance that the employing unit is a board consisting exclusively of individuals given independent authority, though selected by the respective groups, and even regarding this group as a joint operation of the railways and organizations themselves, the members of that board's staff are not to be considered as covered by the railroad retirement system.

The operation is a special one, established in Canada for exclusively Canadian problems and operations, and the service required is altogether

performed in Canada. The members of the staff, to the extent they could be regarded as railway employees, would, of course, be excluded from coverage by the express prohibition in the first proviso of section 1(c) of the Railroad Retirement Act which prevents service outside the United States for an "employer" not conducting the principal part of its business in the United States from being counted as service for an "employer." The same proviso, in a like prohibition against counting service outside the United States to general committees and local lodges of railway labor organization employers, together with the non-inclusion in section 1(a) of the Railroad Retirement Act of provincial or dominion legislative committees of such organizations (although including "State and National" legislative committees), sets forth a legislative policy, even though not literally, against covering service in Canada having to do exclusively with Canadian activities and problems performed by individuals indirectly through special arrangement employed by these national railway labor organizations.

In support of this view is the circumstance that the organizations participating with the Canadian railways in this Canadian board of adjustment have not considered the staff members as their employees, covered, as such, by the railroad retirement system, for they have not reported these people as "employees" as they have other persons serving in Canada as officers and employees directly for the organizations as required by section 8 of the Railroad Retirement Act. A practical consideration supporting the conclusion reached, which results from the labor organization's failure to regard, and to report to the Railroad Retirement Board, adjustment board personnel as "employees" of the organization, is that a time limitation contained in section 8 of the Railroad Retirement Act would, in any event, prevent crediting service for more than 4 years retroactively.

SECTION 1(d) OF THE RAILROAD RETIREMENT ACT-EMPLOYMENT RELATION-SERVICE BEFORE 1937

20 CFR 204

L-61-120

An individual who was not "continuously disabled" for the necessary period of time and where the failure of his former employer to call him to return to work was not for the reason of his continuous disability cannot qualify under (A) or (B) of section 1(d) (iii) of the Railroad Retirement Act for an "employment relation" for the purposes of being credited with service before 1937 (prior service).

The question is whether the claimant, E, may be considered to have been an "employee" on August 29, 1935 (the enactment date of the Railroad Retirement Act), for purposes of being credited with service before 1937. Section 1(d) of the Railroad Retirement Act provides:

(d) An individual shall be deemed to have been in the employment relation to an employer on the enactment date [August 29, 1935] if (i) he was on that date on leave of absence from his employment, expressly granted to him by the employer by whom he was employed, or by a duly authorized representative of such employer, and the grant of such leave of absence will have been established to the satisfaction of the Board before July 1947; or (ii) he was in the service of an employer after the enactment date and before January 1946 in each of six calendar months, whether or not consecutive; or (iii) before