Cole v. Sloss-Sheffield Steel & Iron Co. , 186 Ala. 192 ( 1914 )

McCLELLAN, J. —

Count 5 of the amended complaint was, under the authority of De Soto Coal Co. v. Hill, 179 Ala. 186, 60 South. 583, not subject to demurrer, provided the provisions of Code 1907, § 1035, apply to ore mines — to mines other than coal mines. The report of the appeal will contain the count.

Code 1907, § 1035, is as follows: “1035 (2933). Women and boys under fourteen not to work in mines. —No Avoman, or boy under the age of fourteen years, shall be employed to work or labor in or about any mine-in this state.”

With the exceptions that or, before boy, was substituted for nor and fourteen Avas substituted for twelve, Code 1907, § 1035, is identical with section 2933 of the Code of 1896.

On February 16, 1897 (Acts 1896-97, pp. 1099-1112),. an act entitled “An act to regulate the mining of coal in Alabama” was approved and became a laAV. [Italics, supplied. ] Section 27 of that act provided “that no1 women shall be employed to work or labor in or about the mmes in this state, or any boy under the age of twelve years be so employed.” In consequence of the title of the act wherein the subject of the act was restricted to coal mines, it is manifest that the provisions of (its) section 27 were only applicable to coal mmes in "this state. From this established premise, it is insisted that the codifications of 1896 (section 2933) and 1907 (section 1035) did not intend and did not effect such change in the legislative purpose as to extend the prohibitive provisions of the law to- mines other than coal mmes in this state. The question, therefore, is:. Did the codifications mentioned expand the effect of the inhibition under consideration to comprehend all, every mine, whether coal, ore, or other kind of mine?

As appears, the inquiry presented requires that due account should be taken, as is done, of the rule of statutory construction thus set down in Landford v. Dunklin, 71 Ala. 609, and reiterated in Lindsay v. U. S. Savings Co., 127 Ala. 366, 371, 28 South. 717, 718, 51 L. R. A. 393, 394, among other of our cases: “No rule of statutory construction rests' upon better reasoning than that in the revision of statutes, alteration of phraseology, the omission or addition of words, will not necessarily change the operation or construction of former statutes. The language of the statute as revised or the legislative intent to change the former statute must be clear before it can be pronounced that there is a change of such statute in construction and operation.”

In our recent case of De Soto Coal Company v. Hill, supra, Justice, now Chief Justice, Anderson writing for the majority, forming the court’s pronouncement, it was said of section 1035: “This statute was intended to protect women and children of a tender age from incurring the hazard and danger incident to the operation of mines by imperatively preventing the employment of same, * * * and it should be liberally construed so as to effectuate the humane intent of the Legislature.” And this from a New York case is there approvingly quoted: “This is-a statute which makes an epoch in the progress of humanity, and the courts should not get in its way or whittle it down, as courts have done in the past.”

Aside from the general recasting, in the Code of 1896, of the features of the section (27) whereby the objects of its solicitude were described, the chief changes in phraseology, from the act to that employed in the codifications, was the substitution of the word any for the word the just preceding the word mines and the substitution of mine for mines as that noun was used in the act. In order to be justified in the affirmation that such changes manifested a legislative intent to bring under these provisions all mines, it must appear that such purpose was clear and evident.

In the brief for appellee it is pertinently said: “It is immaterial, of course, that the mischief to be remedied is the same in ore mines as in coal mines, since the expressed intention of the Legislature is the criterion in determining the purview of the acts.” In the brief for the appellant this is asserted: “The necessity for such a law with reference to ore mines exists just the same as with reference to coal mines. * * * These deliberate observations of counsel evince the conclusion that there was or is no particular reason based on differences in the nature of coal and ore mining — operations that might qualify the natural inducement to apply the humane legislative purpose to the protection of women and children (within the age limit stipulated) in mines other than coal mines.

As employed in sections 2933 and 1035, any must be given its.usual, ordinary signification in such circumstances. It means all, every, as there used. The very fact that the expression any mine ivas substituted by the codifications for the expression the mines, when the latter expression in the act could only refer to coal mines, manifests, without any fair basis for doubt, a legislative intent to subject to the inhibition of the statute every mine in Alabama. It is not conceivable that the change of phraseology thus made could have been adopted without that purpose in view.

Any has been the object of much judicial consideration. In 3 Cyc. L. & P. p. 1463 et seq., exhaustive treatment has been accorded the word. Upon occasions it has been accorded a narrower meaning and effect than that.we have stated it must here receive. Our own court has several times interpreted it as importing, in the concrete cases under view, that wide signification — that it meant all, every, in the relation found. These are our cases referred to: Taylor v. Hutchinson, 145 Ala. 202, 205, 40 South. 108; County of Dallas v. Timberlake, 54 Ala. 403, 412; Gandy v. State, 82 Ala. 62, 2 South. 465; Wilson v. Taylor, 89 Ala. 368, 370, 8 South. 149; Millard’s Adm’rs v. Hall, 24 Ala. 209, 229, 232. In Gandy’s Case, supra, it was affirmed that the expression any election comprehended in ipsis verbis all elections, special ■or general, of the character defined in the statute there ■considered. To the like direct and comprehensive effect was the statement of the court in interpreting the words any contract in question in Wilson v. Taylor, supra.

It is urged in brief that, because the codifications were of the act of 1897, which by its title and context was confined to coal mines, the irrefragable implication is that coal mmes only were intended to be subjected to the inhibition of Code 1896, § 2933, and Code 1907, § 1035.

This contention is, of course, worthy of presentation— an argument that should be and has been considered and carefully weighed — but our conclusion is that, though according a fair influence thereto, it is not sufficient to overcome the clear effect of the very comprehensive and unequivocal term any mine as employed in the codifications. To conclude to the contrary would require the court to ascribe to the word any no more comprehensive significance than to the word the — an interpretation that cannot be justified or approved.

It is insisted that the construction of section 1035 we have adopted should logically lead to the application to all mines in Alabama of numerous other provisions of the many sections embraced in the Code chapter on Mines and Mining. Our conclusion is to the contrary. Each section of the chapter will be construed and applied as concrete cases are presented to invoke this court’s pronouncement. The prohibition of section 1035, as is manifest, is not so related to' any other provision or provisions of our mining statutes as to justify the premise of the insistence last stated. If there are provisions in the chapter mentioned that are restricted to coal mines for their operation, as doubtless there are, they neither depend upon section 1035 nor reflect upon the stated application of section 1035. That section (1035) is independent of any other in our positive law on the subject. The court, therefore, erred in sustaining the demurrer to count 5 of the amended complaint.

Plea 2 was faulty, as pointed out in ground B of the demurrer thereto, in the omission to aver that plaintiff’s intestate, who was alleged in the complaint to be under 14 years of age, was a boy of sufficient capacity to appreciate the danger or risk to be incurred in not observing the rule averred in the plea to be known to- him.—Pratt Coal Co. v. Brawley, 83 Ala. 371, 2 South. 555, 3 Am. St. Rep. 751. The plea does aver that the rule described was in force and effect at the time of the injury, thus taking the point out of grounds C and I) of the demurrer.

Pleas 3, 4, 5, 6, and 7 were affected with the same infirmity pointed out as affecting plea 2.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

Anderson, C. J., and de Graffenried and Gardner, JJ., concur. Mayfield, Sayre, and Somerville, JJ., concur in the ruling on the pleas, but dissent from the ruling construing Code, § 1035.