Shaw v. Kendall

I believe that the rule of ejusdem generis is not applicable to the language in section 3095, Revised Codes, which is under consideration. The statute is complete in its application to the specified occupations, covering all employment "in, on, or about" any thereof, without the additional language as to the business wherein machinery is used. This additional language can add nothing to the portion of the statute as applied to the occupations specified. As to such it is wholly superfluous. I believe that by writing in the phrase "or where any machinery is operated," the legislature intended to extend the scope of the statute so as to apply to any and all business wherein machinery is operated, whether it be any such as specifically enumerated or any other. (Crawford on Statutory Construction, sec. 191; 59 C.J. 981, 984; 14 Words Phrases, Perm. Ed., pp. 140, 141. See, also, following illustrative cases: Dillard v. State of Nebraska,104 Neb. 209, 175 N.W. 668; Mills v. City of Barbourville,273 Ky. 490, 117 S.W. 187; Hurt v. Oak Downs, Tex. Civ. App.,85 S.W.2d 294; Heymann v. Cunningham, 51 Wis. 506,8 N.W. 401.)

In its attempt to cover all business wherein machinery is operated, I believe the statute as to that part is void. The general purpose of the entire statute is to prohibit the employment, in hazardous occupations, of persons under a certain age. That the legislature may do. It is a matter which may properly be subjected to regulation under the police power of the state. If, in legislating upon the subject, the legislature goes beyond that which may properly be the subject of such control, such legislation is invalid.

Machinery is not all dangerous. Much of it in common, everyday use is not dangerous and is not in any way harmful. Typewriters, adding machines and dictaphones are machinery in use in practically every line of business. Persons of immature years are frequently employed in places where they are used, and it is not uncommon that they operate such machinery in their employment. To prohibit persons under the age of sixteen years to be given employment in such places is clearly the exercise of control beyond the police power of the state, and yet that would be the effect of the provision in the statute here under consideration.

A statute prohibiting the employment of persons of immature years in any business wherein dangerous machinery is operated, might be valid legislation. The prohibition here applies generally to machinery, that which is harmless as well as such as may be dangerous. The provision is too general and too sweeping to be upheld. (James v. Bowman, 190 U.S. 127, 23 S. Ct. 687,47 L. Ed. 979, 983.)

The statute cannot be upheld as properly applying to certain cases, giving it limited application. The language is such that it cannot be cured by disregarding an objectionable part and giving effect to another part thereof as valid. To cure the defect, restrictive language has to be read into it, which may not be done. (United States v. Steffens, 100 U.S. 82,25 L. Ed. 550.)

The rule holding invalid such legislation objectionally general in its application has been universally followed by the courts. 22 C.J.S., Criminal Law, section 24, p. 71, says: "Reasonable certainty, in view of the conditions, is all that is required, and liberal effect is always to be given to the legislative intent when possible; but where the legislature declares an offense in words of no determinate signification, or its language is so general and indefinite that it may embrace not only acts commonly recognized as reprehensible but also others which it is unreasonable to presume were intended to be made criminal, the statute will be declared void for uncertainty." Numerous cases are cited in connection with the statement of the rule showing its application, and likewise in 16 C.J. 68.

In my view, the provision in section 3095, Revised Codes, relating generally to business wherein machinery is operated, is invalid, and, the occupation or business in which the plaintiff was employed not being one of those specifically enumerated in the statute, the statute has no application to the case.

I agree with the result reached by the court, and, but for the interpretation of the language in section 3095, as above noted, I am in accord with the views expressed in the court's opinion.