
    CONSTITUTIONAL LAW — RAILROADS.
    [Franklin (2nd) Circuit Court,
    1903.]
    Sullivan, Summers and Wilson, JJ.
    Cleveland, C. C. & St. L. Ry. Co. v. State of Ohio.
    1, Section 3365-11 Rev. Stat., Regulating Employment of Railroad Conductors, etc., Unconstitutional.
    Section 3365-11 Rev. Stat. (act of January 31, 1893; 93 O. L. 20) regulating the employment of conductors, engineers and flagmen by certain railroad companies operating a steam railroad thirty miles or mope in length, ana which permits the employment of a person as conductor who has had two years’ experience as such on either a passenger, freight or construction train within the' last six years before the employment, without examination as to his competency; which prohibits the employment of a person, however skillful or competent, who has been employed for any period less than said two years’ term, which allows the retention of an employe, however incompetent and inexperienced, who is in the employ of the company at the time of the passage of the act, and which prescribes no standard, or test of efficiency, is unconstitutional in that it arbitrarily creates two favored classes; arbitrarily says who may, and who may not, labor at a given employment; discriminates without reason, between different railroads, thereby affecting unequally property not different in kind or use, as well as employes in the same class of service.
    2. Law Must Provide for Public Safety to be Sustained as Police Measure.
    As said act fails to provide for the safety of the public, it cannot, therefore, be sustained as a valid exercise of the police power.
    EeRór to Franklin common pleas court.
    J. T. Dye, S. O. Bayless and J. F. Wilson, for plaintiff in error:
    The act in question is not a valid exercise of the police power, but a regulation of interstate commerce, and is wholly without the scope of the legislative power of the state. Clev. C. C. & St. L. Ry. v. Illinois, 177 U. S..514 [20 Sup. Ct. Rep. 722; 44 L. Ed. 868] ; Hall v. De Cuir, 95 U. S. 465, 468 [24 L. Ed. 547] ; Wabash, St. L. & P. Ry. v. Illinois, 118 U. S. 557 [7 Sup. Ct. Rep. 4; 30 L. Ed. 244]; Western Union Tel. Co. v. Pendleton, 122 U. S. 347 [7 Sup. Ct. Rep. 126; 30 L. Ed. 1187]; Leisy v. Hardin, 135 U. S. 100 [10 Sup. Ct. Rep. 681; 34 L. Ed. 128].
    This act of January 31, 1893 (93 O. L. 20), is in violation of the constitution of the United States, because it denies the just freedom of contract between railroads engaged in interstate commerce and persons whom they seek to employ as conductors and train men, without reference to the convenience or safety of the public, by preventing them from employing competent persons to act as conductors unless they belong to> a particular class. Allgeyer v. Louisiana, 165 U. S. 578 [Sup. Ct. Rep. 427; 41 L. Ed. 832],_
    
      This act is unconstitutional in that it deprives persons competent ■and skillful from obtaining employment which would otherwise be ■open to them. It denies to them the liberty of pursuit. Allgeyer v. Louisiana, 165 U. S. 578 [17 Sup. Ct. Rep. 427; 41 L. Ed. 832]. .
    This act denies the equal protection of the laws. Smyth v. Ames, 169 U. S. 466, 496 [18 Sup. Ct. Rep. 418; 42 L. Ed. 819] ; Gulf C. Ry. v. Ellis, 165 U. S. 150 [17 Sup. Ct. Rep. 255; 41 L. Ed. 666]; Atchison, T. & S. F. Ry. v. Matthews, 174 U. S. 96 [19 Sup. Ct. Rep. 609; 43 L. Ed. 909] ; Soon Hing v. Crowley, 113 U. S. 703 [5 Sup. Ct. Rep. 730; 28 L. Ed. 1145]; Barbier v. Connolly, 113 U. S. 27 [5 Sup. Ct. Rep. 357; 28 L. Ed. 923].
    This act is repugnant to the constitution of the state of Ohio because it grants privileges to one class of persons which are denied to others equally fit and competent, without any examination or test as to competency. State v. Gardner, 58 Ohio St. 599 [51 N. E. Rep. 136; 41 L. R. A. 689; 65 Am. St. Rep. 785] ; State v. Ashbrook,'154 Mo. 375 [55 S. W. Rep. 627; 48 L. R. A. 265; 77 Am. St. Rep. 765] ; State v. Dalton, •22 R. I. 77 [46 Atl. Rep. 234 ; 48 L. R. A. 775; 84 Am. St. Rep. 818]; Lawton v. Steele, 152 U. S. 133,136 [14 Sup. Ct. Rep. 499; 38 L. Ed. ■385]; Noel v. People, 187 Ill. 587 [58 N. E. Rep. 616; 52 L. R. A. 287; 79 Am. St. Rep. 238]; Fiske v. People, 188 Ill. 206^ [58 N. E. Rep. 985; 52 L. R. A. 291]; see also, Clev. C. C. & St. L. Ry. v. Illinois, 177 U. S. 514 [20 Sup. Ct. Rep. 722; 44 L. Ed. 868]; Wabash, St. L. & P. Ry. v. Illinois, 118 U. S. 557 [7 Sup. Ct. Rep. 4; 30 L. Ed. 244]; Lake Shore & M. S. Ry. v. State, 173 U. S. 285 [19 Sup. Ct. Rep. 465; 43 L. Ed. 702]; Allgeyer v. Louisiana, 165 U. S. 578 [17 Sup. Ct. Rep. 427 ; 41 L. Ed. 832]; Gulf C. Ry. v. Ellis, 165 U. S. 150 [17 Sup. Ct. Rep. 255; 41 L. Ed. 666] ; Soon Hing v. Crowley, 113 U. S. 703 [5 Sup. Ct. Rep. 730; 28 L. Ed. 1145] Barbier v. Connolly, 113 U. S. 27 [5 Sup. Ct. Rep. 357; 28 L. Ed. 323] ; Chicago v. Netcher, .183 Ill. 104 [55 N. E. Rep. 707; 48 L. R. A. 261; 75 Am. St. Rep. 93]; Bessette v. People, 193 Ill. 334 [62 N. E. Rep. 215, 218; 56 L. R. A. 558]; State v. Bateman, 44 Bull. 83; Nash. C. & St. L. Ry. v. Alabama, 128 U. S. 96 [19 Sup. Ct. Rep. 28; 32 L. Ed. 352] ; New York, N. H. & H. Ry. v. New York, 165 U. S. 628 [17 Sup. Ct. Rep. 418; 41 L. Ed. 853].
    J. M. Sheets, S. W. Bennett and J. E. Todd, for defendant in error:
    The act in question is nothing more nor less than a police regulation, and is not, in the sense of the constitution, in any wise a regulation of commerce. Gibbons v. Ogden, 22 U. S. (9 Wheat.) 1- [6 L. Ed. 23]; Chicago & N. W. Ry. v. Fuller, 84 ü. S. (17 Wall.) 560, 567 [21 L. Ed. 710] ; Lord Chief Justice Hale De Portibus Maris, First Hargrave’» Law Tracts 78; New Jersey S. Nav. Co. v. Bank, 47 U. S. (6 How.) 344, 382 [12 L. Ed. 465] ; Sherlock v. Ailing, 93 U. S. 99 [23 L. Ed. 819] Lake Shore & M. S. Ry. v. State, 4 Circ. Dee. 406 (8 R. 220) ; affirmed by Supreme Court, without report, Lake Shore & M. S. Ry. v. State, 1 O. S. C. D. 285 (37 Bull. ,196); Gladson v. Minnesota, 166 U. S. 427, 43» [17 Sup. Ct. Rep. 627; 41 L. Ed. 1064] ; Illinois C. Ry. v. People, 143 Ill. 434, 456 [33 N. E. Rep. 173; 19 L. R. A. 119] ; Lake Shore & M. S. Ry. v. State, 173 U. S. 285, 298 [19 Sup. Ct. Rep. 465; 43 L. Ed. 702] ; Western Union Tel. Co. v. Mayer, 28 Ohio St. 521; Ratterman v. Express Co. 49 Ohio St. 608 [32 N. E. Rep. 754]; Adams Express Co. v. State, 55 Ohio St. 59 [44 N. E. Rep. 506] ; affirmed by United States Supreme Court, Adams Express Co. v. State, 10 O. F. D. 426 [166 U. S. 185; IT Sup. Ct. Rep. 604; 41 L. Ed. 965]; State v.. Railway, 133 Ind. 69 [32 N. E. Rep. 817; 18 L. R. A. 508]; Cin. H. & D. Ry. v. Sullivan, 32 Ohio St. 152; Clev. P. Ry. v. McConnell, 26 Ohio St. 57; Thorpe v. Railway, 27 Yt. 140 [62 Am. Dec. 625]; Corwin v. Railway, 13 N. Y. 42; People v. Railway, 55 Hun 409 [8 N. Y. Supp. 672]; Texas & P. Ry. v. Mayes, 15 S. W. Rep. 43 (Tex. App.) ; Mo. Pac. Ry. Co. v. Mackey, 127 U. S. 205 [8 Sup. Ct. Rep. 1161; 32 L. Ed. 107]; Illinois C.' Ry. v. Willenborg, 117 Ill. 203 [7 N. E. Rep. 698; 57 Am. Rep. 862] ,- Gratiot v. Railway, 116 Mo. 450 [21 S. W. Rep. 1094; 16 L.. R. A. 189]; Clev. C. C. & I. Ry. v. Harrington, 131 Ind. 426 [30 N. E.. Rep. 37] ; Diamond v. Railway, 6 Mont. 580 113 Pac. Rep. 367] ; Smith v. Alabama, 124 U. S. 465 [8 Sup. Ct. Rep. 564; 31 L. Ed. 508] ; Nash. C. & St. L. Ry. v. Alabama, 128 U. S. 96 [9 Sup. Ct. Rep. 28; 32 L. Ed. 352]; Plumley v. Massachusetts, 155 U. S. 461, 472 [15 Sup. Ct. Rep. 54; '39 L. Ed. 223]; New York, N. H. & H. Ry. v. New York, 165 U. S. 628 [IT Sup. Ct. Rep. 418; 41 L. Ed. 853]; Dent v. West Virginia, 129 U. S. 114 [9 Sup. Ct. Rep. 231; 32 L. Ed. 623]; Singer v. State, 72 Md. 464 [1» Atl. Rep. 1044; 8 L. R. A. 551]; State v. Gardner, 58 Ohio St. 599 [51 N. E. Rep. 136; 41 L. R. A. 689; 65 Am. St. Rep. 785]; 2 Tiedeman, State & Federal Control of Persons & Property 242.
   WILSON, J.

This proceeding questions the constitutionality of the act passed January 31, 1893 (90 O. L. 20), regulating the appointment of conductors, engineers and flagmen on certain steam railroads in the state.

The action below was one to recover the stipulated penalty for a .violation of the statute, tbe defendant company having employed a person as" conductor not in the class prescribed by its terms.

A demurrer was interposed to the answer, admitting the employment, but filed for the purpose of pleading the facts in the case, so as to make appear with more particularity the inequalities and unreasonableness of the statute. This demurrer was sustained and the plaintiff had judgment, thus raising the question. Since the cause was submitted in this court, the Supreme Court has handed down an opinion in the case of Harmon v. State, 66 Ohio St. 249 [64 N. E. Rep. 117; 58 L. R. A. 618], which is decisive of the question here, and renders unnecessary any extended review of the authorities or discussion of the subject. The case referred to was a suit to test the constitutionality of the act of March 1, 1900 (94 O. L. 33), regulating the appointment of stationary engineers. The act provided among other things as follows:

“Section 7. Any engineer who has been employed continuously as a steam engineer in the state of Ohio for a period of three years next prior to the passage of this act, and who files with his application a certificate of such fact under oath, accompanied by a certificate from his employer or employers verifying the same, or who holds a license issued to him under any ordinance of a municipal corporation of this state, shall be entitled to a license without further examination.”

Of this the Supreme Court says, page 254:

“It is arbitrarily forming a favored class and is in conflict with See. 2 of the bill of rights which guarantees equal protection and benefit; and it is also in conflict with the purpose for which the constitution was established, which was to promote our common welfare. This section of the act is to promote the welfare of a particular three-year class, instead of the common welfare of all.”

The act (90 O. L. 20, Sec. 1) under review in the case at bar provides among other things:

‘ ‘ It shall be unlawful * * to employ any person in the capacity of conductor of a passenger train or trains unless such person has had at least two years’ experience in the position of conductor of either passenger, freight or construction train within six years next preceding the time of such employment. * * * But nothing in this act shall be so construed as to prevent any such railroad company or corporation from retaining conductors * * * in its employ at the time of the passage of this act.”

That is to say, a person who has been a conductor of passenger, freight or construction train for two years within the last six before the employment, may be employed without examination as to his competency ; but a person so employed for a term one day less than two years, shall not be employed, however skillful and competent he may be; and a person who has been in the employ of the company for one day previous to the passage of the act may be retained, however incompetent and inexperienced he may be. The act creates arbitrarily two favored classes: Those who have had two years’ experience in the last six before employment, and those who happened to be in the employ of the company at the time of the passage of the act. Similar and even more glaring inequalities might be pointed out governing the employment of engineers and others. The act prescribes no standard, and no test of efficiency; arbitrarily says who may labor at a given employment, and who may not, and fails to provide for the safety of the public, which must have been the purpose of any lawful exercise of the police power of the state.

So, too,,the limitation of the act to “any railroad company or companies running or operating a steam railroad in the state of Ohio, thirty miles in length or more, and the same having been operated for three years or more” is a discrimination without reason, affecting unequally property not differing in kind or use, as well as employes in the same class of service. The act must be held unconstitutional. The judgment of the court of common pleas is reversed, the demurrer overruled as to the answer, sustained to the petition, and-the petition dismissed.

Sullivan and Summers, JJ., concur. 
      
       Affirmed by Supreme Court without report, June 14, 1904.
     