Berry v. Majestic Milling Company
| Decision Date | 17 July 1920 |
| Citation | 223 S.W. 738,284 Mo. 182 |
| Parties | BENJAMIN R. BERRY, A Minor, by Next Friend, v. MAJESTIC MILLING COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Stone Circuit Court. -- Hon. Fred Stewart, Judge.
Reversed.
John T Moore, Carr McNatt and John L. McNatt for appellant.
The Act of 1911, entitled "Schools, Compulsory Attendance of Children," and especially Sec. 1726b, Laws 1911, p. 136 is void, as said act contains more than one subject and the purpose of same is not clearly expressed in its title; in violation of Art. 4, Sec. 28, Mo. Constitution. State v Clark, 54 Mo. 34; Kansas City v. Payne, 71 Mo. 162; State v. Burddoerfer, 107 Mo. 1; State v. Carr, 142 Mo. 611; State v. Coffee Co., 171 Mo. 634; Witzman v. Railway Co., 131 Mo. 618; Williams v. Railway Co., 233 Mo. 666; State ex rel. v. Revelle, 165 S.W. 1084; State ex rel. v. McGannon, 111 Mo.App. 632.
I. V. McPherson, James A. Potter, Rufe Scott and W. E. Renfro for respondent.
(1) The constitutional question argued by appellant was never properly raised in the trial court. An examination of the act referred to will show that it covers six pages of legislation and contains twenty-one different sections. No allegations of defendant's answer challenges the constitutionality of Section 1726b, under which this suit is brought. Appellant admits that a portion of the act is valid, and this court has frequently held that one portion of an act may be valid while another portion is invalid. In considering a constitutional objection to such a statute counsel are not permitted to make a general assault on the entire act, where the real claim is that only a certain section is invalid. For example, this court has held that a general allegation that a law violates Section 53 of Article 4 of the Constitution is insufficient because it fails to point out which one of the sub-sections of Section 53 is involved. State v. Christopher, 212 Mo. 244; State ex inf. v. Southern, 265 Mo. 284. Since it is admitted that certain sections of the act under consideration are valid, it was clearly incumbent upon the appellant to specifically point out to the trial court which section it claimed was unconstitutional, and having made a general assault upon twenty-one different sections in the trial court, it cannot now be permitted to contend that the trial court erred in its ruling upon a particular section which was not called to the court's attention. (2) But if it be granted that appellant raised a constitutional question in its answer, such question was waived and abandoned by the appellant at the trial. No further reference to the unconstitutionality of the act than that contained in defendant's answer was made in the whole course of the trial. No decision by the court as to the constitutionality of the act in question was asked by the appellant nor made by the court. The court had no opportunity to decide and it did not decide that the act was constitutional. If appellant, by its objection, or by its demurrer to plaintiff's evidence, or by its assignment of error number 6 in its motion for a new trial, intended to invite the court's decision on the constitutionality of the act, then the Supreme Court has denounced its method of procuring the trial court's decision as an "ambush," permissible in war, but never allowable in a court of justice, in procuring a decision on so grave a matter as a constitutional provision. Lohmeyer v. Cordage Co., 214 Mo. 688; Vansandt v. Hobbs, 153 Mo. 656; Browning v. Powers, 142 Mo. 324; Miller v. Connor, 250 Mo. 684; Bennett v. Railroad, 105 Mo. 645; Brown v. Railroad Co., 175 Mo. 188. To hold that a constitutional question is involved and to have that question tried on this appeal by an appellate court is to review questions never decided by the trial court, and to convict the trial court of error is to find him guilty of error upon a decision not made. St. J. v. Life Ins. Co., 183 Mo. 1; Ash v. Independence, 169 Mo. 79; Kirkwood v. Highlands Co., 160 Mo. 118. "To give the Supreme Court jurisdiction on the ground that a constitutional question is involved, it must appear that such question was actually involved and that the trial court had an opportunity to and actually did pass upon it." Baldwin v. Fries, 103 Mo. 286; Shell v. Mo. Pac. Ry., 202 Mo. 339; Shewalter v. Mo. Pac. Ry., 152 Mo. 551; Ash v. Independence, 145 Mo. 120; Parlin & Orendorff Co. v. Herd, 145 Mo. 119; Hardin v. Carthage, 171 Mo. 444. (3) If the portion of the act upon which plaintiff's petition is based, is within the title or germane to the title, then it is immaterial that other subjects not embraced within the title, are included in the act. In such a situation the appellant would have no complaint in the present case. A portion embraced in the title would be valid and the remainder invalid. St. Louis v. Transfer Co., 256 Mo. 496; State v. Rawlings, 232 Mo. 544. This court in passing upon the question must take into consideration not only the Act of 1911, but must also take into consideration the sections there referred to in the Revised Statutes of 1909 and also the original act covering the employment of children as found in Laws of 1907 beginning at page 86. The title to the original act of 1907 is substantially the same as the title to the act of 1911. The title to the Act of 1907 has been expressly upheld by this court so that the question now presented to this court has long since been settled. Stricklen v. Printing Co., 249 Mo. 621. The title to the Act of 1911, when considered in conjunction with the title to the Act of 1907 and the title to the acts contained in Revised Statutes 1909, is as clear and complete an index to the body of the act as it is possible to express in the English language. The real subject of all the acts is the employment of children. All of these acts regulate the employment of children. Some parts of each act prohibit the employment of certain children in certain industries, and permit their employment in other industries under certain conditions. Regulation of the employment of children under certain ages clearly implies the power to prohibit their employment in certain hazardous industries and to prescribe rules and regulations for their employment in non-hazardous industries. This is all the act in question seeks to do. When the title to an act indicates that it covers the subject of the employment of children under certain ages, it clearly notifies the public that the Legislature has acted upon the subject of the employment of children, and is notice to the public to examine the contents of the law to determine what those regulations are. The act in question is one of a series of acts passed in the development of this legislative policy to protect children and it should not be held unconstitutional unless it clearly and undoubtedly violates some specific provision of the Constitution. State v. Helton, 255 Mo. 181. (4) Appellant contends that because the title declares the purpose to be among others to "regulate" the employment of children between 14 and 16 years of age, Section 1726b is broader than the title, because it prohibits the employment of such children, in certain avocations deemed unusually hazardous. But this court has ruled that to prohibit is to regulate and that to regulate is to prohibit in a limited sense; that they are convertible terms, as used in the title and in the bill. St. Louis v. Russell, 116 Mo. 251; Cameron v. Middaugh, 57 Mo.App. 316; State v. Wright, 20 Mo.App. 412; Tarkio v. Cook, 120 Mo. 1. The subject of the act in question as expressed in the title, is "The Employment of Children." The section in question deals only with that subject. Under the decisions any provision of the act which has a natural connection with the subject expressed or with the employment of children, is included within the title. State ex rel. v. Gorden, 260 Mo. 639; Ewing v. Oblitzelle, 85 Mo. 71; State ex rel. v. Gorden, 261 Mo. 639-640; State ex rel. v. Vandiver, 222 Mo. 219; State v. Miller, 45 Mo. 479; State ex rel. v. Miller, 100 Mo. 439; State v. Morgan, 112 Mo. 202. An act is not unconstitutional because it deals with more than one phase of the same subject. Here, the subject is the "employment of children" and anything relating thereto is proper. Elting v. Hickman, 172 Mo. 237, 251; State v. Bixman, 162 Mo. 116; St. Louis v. Weitzel, 130 Mo. 614; State v. Deering, 194 Mo. 408; O'Connor v. Transit Co., 198 Mo. 633; State ex rel. v. Jocky Club, 200 Mo. 56; State v. Broadnax, 228 Mo. 25; State ex rel. v. Williams, 232 Mo. 75; State v. Cantwell, 179 Mo. 260.
WHITE, C. Railey and Mozley, CC., concur.
The plaintiff recovered a judgment in the Circuit Court of Lawrence County, in the sum of $ 5,000 for injuries received while employed by the defendant. The case was appealed by the defendant to the Springfield Court of Appeals and by that court transferred to this court because a constitutional question was involved.
The petition alleges that the defendant, who sued by next friend, was a minor under the age of sixteen years, to-wit, 15 years of age; that he was employed by the defendant, unlawfully, to work at operating and to assist in operating the defendant's "roller mill machinery," contrary to the law which prohibits the employment of any child under sixteen years of age in operating or assisting in operating such machinery used in grinding mills; and that while plaintiff was so employed his hand was caught and drawn between the rolls of "said grinding corn mill" and was so crushed that the fingers of his right hand had to be amputated.
There was a second count in the petition based on common law negligence, but that was dismissed.
After a general denial the answer of the defendant...
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