
    THE ACT REGULATING APPOINTMENT OF CONDUCTORS, ETC., UNCONSTITUTIONAL
    [Circuit Court of Franklin County.]
    The C., C., C. & St. L. Railway Co. v. State of Ohio.
    
    Decided, 1903.
    
      Constitutional Law — Requirements of Section 3365-11 as to Conductors, Engineers and Flagmen — Inequalities of — The Act Unconstitutional.
    
    The act of January 31, 1893, regulating the appointment of conductors, engineers and flagmen on certain steam railroads of the state, is unconstitutional in that it creates favored classes, prescribes no standard or test of efficiency, arbitrarily says who may labor at a given employment and who may not, fails to provide for the safety of the public, and unequally affects property not differing in kind or use.
    
      Wilson, J.; Summers, J., and Sullivan, J., concur.
    Heard on error.
    
      
       Affirmed by the Supreme Court, without report.
    
   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, the 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. The State, 66 O. S., 249, 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:

“See. 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 Section II 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 promotes the welfare of a particular three-year class instead of the common welfare of all.”

The act 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, ánd 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.  