Kowalczyk v. Swift & Co.

• Decision Date: 04 April 1928
• Docket Number: No. 16921.,16921.
• Citation: 329 Ill. 308,160 N.E. 588
• Court: Illinois Supreme Court
• Parties: KOWALCZYK v. SWIFT & CO.

329 Ill. 308

160 N.E. 588

KOWALCZYK

v.SWIFT & CO.

No. 16921.

Supreme Court of Illinois.

Feb. 24, 1928.

Rehearing Denied with Modification April 4, 1928.

Commissioners' Opinion.

Error to Superior Court, Cook County; Edward D. Shurtleff, Judge.

Suit by Frankline Kowalczyk, a minor, by his legal guardian, against Swift & Co. Judgment for defendant, and plaintiff brings error. Transferred from the Appellate Court for the First District, pursuant to directions, on appeal from a judgment denying motion therefor.

Reversed and remanded.

Corinne L. Rice and A. H. Ranes, both of Chicago, for plaintiff in error.

John E. Kehoe and Brown, Fox & Blumberg, all of Chicago (Charles Le Roy Brown, of Chicago, of counsel), for defendant in error.

PARTLOW, C.

Plaintiff in error, Frank Kowalczyk, a minor under 15 years of age, by his legal guardian, began suit in the superiorcourt of Cook county against defendant in error, Swift & Co., to recover damages for personal injuries. There was a trial by jury, a verdict and judgment for defendant in error, and a writ of error was prosecuted from the Appellate Court for the First District. In the Appellate Court defendant in error assigned cross-errors, one of which was that certain sections of the statute upon which the action was based were unconstitutional, and a motion was made to transfer the case to this court. The motion to transfer was denied, the judgment was affirmed, and an appeal was prosecuted to this court on a certificate of importance. This court held (317 Ill. 312, 148 N. E. 59) that the assignment of cross-errors in the Appellate Court raised a constitutional question which defendant in error had a right to have determined by this court, and the judgment of the Appellate Court was reversed, and the cause was remanded to the Appellate Court, with directions to transfer the case to this court.

In the former opinion of this court the facts were stated, together with the nature of the pleadings. Defendant in error filed a petition for a rehearing, urging that some of the facts were not correctly stated in that opinion, but the rehearing was denied. On this hearing defendant in error again insists that there were misstatements of fact in the former opinion. We have examined the evidence and do not find any merit in this contention, but the facts as stated are substantially correct. It will not be necessary to restate the facts or the issues formed by the pleadings.

The injury occurred on December 12, 1917. The cause of action was based mainly upon section 6 of the Child Labor Act of 1897 and section 10 of the Child Labor Act of 1917 (Hurd's Rev. St. 1917, c. 48, § 20i). Section 6 (Cahill's Stat. 1927, p. 1197, c. 48, par. 39) is as follows:

‘No child under the age of sixteen years shall be employed, or permitted or suffered to work by any person, firm or corporation in this state at such extrahazardous employment whereby its life or limb is in danger, or its health is likely to be injured, or its morals may be depraved.’

Section 1 of the act of 1917 (Hurd's Stat. 1917, p. 1413, c. 48, § 20) prohibits the employment of a minor under the age of 14 at any gainful occupation in certain occupations therein specified, and prohibits such child from being employed while school is in session, or before 7 o'clock in the morning or after 6 o'clock in the evening, or for more than eight hours in one day or more than six days in one week. Section 2 (Hurd's Rev. St. 1917, c. 48, § 20a) authorizes the employment of minors over the age of 14 and under the age of 16 in places specified in section 1, including an office, manufacturing establishment, mill, cannery, factory, or workshop, but requires every person so employing minors to keep a register of such minors and procure and file an employment certificate. Section 10 (Hurd's Rev. St. 1917, c. 48, § 20i) provides that no minor under the age of 16 years shall be employed at various occupations therein specifically named, and contains this clause:

‘Nor shall they be employed in any capacity whatever in any employment that may be considered dangerous to their lives or limbs, or where their health may be injured or morals depraved.’

It is upon this last clause that this cause of action is largely based. It is not claimed that plaintiff in error comes within any of the employments specifically enumerated and prohibited in this section, but it is claimed that he did come within the prohibition last above quoted.

Section 3 of the Workmen's Compensation Act as amended in 1917 (Hurd's Stat. 1917, p. 1449, c. 48, § 128) provides that:

‘The provisions of this act hereinafter following shall apply automatically, and without election, to all employers and their employees engaged in any of the following enterprises or businesses which are hereby declared to be extrahazardous, namely.’

Then follow eight specific classes of employments which are declared to be extrahazardous, including (3) carriage by land or water or loading or unloading in connection therewith; (4) the operation of any warehouse or general or terminal storehouse; (6) any enterprises in which explosive materials are manufactured, handled, or used in dangerous quantities; (7) any enterprise wherein molten metal, or explosives, or injurious gases or vapors, or inflammable vapors or fluids, or corrosive acids, are manufactured, used, generated, stored, or conveyed in dangerous quantities; (8) any enterprise in which statutory or municipal ordinance regulations are now or shall hereafter be imposed for the regulating, guarding, using, or the placing of machinery or appliances, or for the protection and safeguarding of employees or the public therein. Section 5 (Hurd's Rev. St. 1917, c. 48, § 130) specifies who shall come under the act as employees, and includes minors who are legally permitted to work under the laws of the state.

It is insisted that section 6 of the act of 1897 has been repealed. The act of 1897 was amended by the act of 1903 (Laws 1903, p. 187), section 15 of which provided that all acts or parts of acts in conflict with the act of 1903 are repealed, but there was no express repeal of all of the act of 1897. It is not claimed that the section of the act of 1903, which corresponded with section 6 of the act of 1897, was in conflict with it, but it is contended that section 6, if it was repealed at all, was repealed by implication. Section 16 of the act of 1917 (Hurd's Rev. St. 1917, c. 48, § 20o) expressly repealed the entire act of 1903 and all other acts and parts of acts in conflict with the act of 1917. The act of 1917 does not expressly repeal the act of 1897, or section 6 thereof, unless it is by implication. The Appellate Court has held in several cases that section 6 of the act of 1897 was repealed by the act of 1903. One of these cases was before this court (Purtell v. Philadelphia Coal Co., 256 Ill. 110, 99 N. E. 899,43 L. R. A. [N. S.] 193, Ann. Cas. 1913E, 335), but it was held that it was not necessary in that case to pass on the question whether the act of 1903 repealed the act of 1897. The same condition arises in this case. If plaintiff in error was entitled to recover under the law and the evidence, the recovery could be sustained under either section. There is vary little, if any, distinction between work which is dangerous to life and limb, as provided in the act of 1917, and work which is extrahazardous, as provided in the act of 1897. In fact, the Legislature used both expressions in section 6 of the act of 1897. It is therefore not necessary to determine whether section 6 of the act of 1897 was repealed.

Defendant in error insists that section 6 of the act of 1897 and section 10 of the act of 1917 are unconstitutional for the reason that they do not define dangerous employment or extrahazardous employment, nor prescribe a test or standard as to when life or limb is deemed to be in peril; that both sections are criminal statutes and a violation thereof is a criminal misdemeanor; that a right of action depends solely upon the statutes and cannot be extended beyond the valid terms of the statutes; that a criminal statute is void for want of due process of law where it fails to provide with reasonable certainty the elements of the offense; that when this condition exists the burden is cast upon the court and jury to define the offense, which is an attempt to delegate legislative power to the courts and is unconstitutional; that if the statutes are given the construction contended for by plaintiff in error they are in violation of the due process provisions of the state and Federal Constitutions (Const. Ill. art. 2, § 2; Const. U. S. Amend. 14, § 1) and the section of the Federal Constitution (Amendment 14, § 1) which prohibits any state to deny to any person within its jurisdiction the equal protection of the law, and they would result in arbitrary and unreasonable classification.

The principal case relied on by defendant in error to support the above contentions is United States v. L. Cohen Grocery Co., 255 U. S. 81, 41 S. Ct. 298, 65 L. Ed. 516. That case involved the so-called Lever Act, which made it unlawful for any person willfully to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries or to exact excessive prices for such necessaries. The statute was held to be unconstitutional upon some of the grounds which defendant in error urges in this case. Many other cases are cited by defendant in error in support of its contentions.

There is no doubt as to the correctness of the rules of law as stated by defendant in error and as announced in the decisions cited by it in support of its contentions, but the language used in the sections complained of does not come within the rule. Employments that are extrahazardous, or which are dangerous to life or limb, or where health may be injured or morals depraved, are properly defined in these sections. The act prohibited in each is dangerous work....