¶1 (dissenting).
¶2 The referee, whose decision was the only one based upon personal hearing of the evidence, found that the employer had made an effective election not to be bound by part II of our compensation act. Not until after our decision in Schuler v. Schuler Candy Co. 204 Minn. 156, 283 N. W. 781, did it occur to anyone that a contrary finding should be made. Then, without any rehearing and upon the cold record, the íavo lay members of the industrial commission reversed the determinative finding of the referee and concluded very belatedly that the notice had not been kept posted. I think they were wrong in basing that decision upon purely negative testimony, which Avas opposed by the obviously greater weight of affirmative testimony.
¶3 Of course it is correct to say that there is some evidence supporting the award. But it is respectfully submitted that, because of the peculiar circumstances of the case, it ought to go back for a rehearing on the merits, with a direction to the commission to give proper regard to the recognized difference between affirmative and negative evidence.