
    Patten v. The Aluminum Castings Co.
    
      Workmen’s compensation — Civil liability of employer — “Lawful requirement" construed — Section 35, Article II, Constitution, and Section 1465-76, General Code — Furnishing' unsuitable or improper scaffolding — Section 12593, General Code.
    
    1. The term “lawful requirement,” as used in Section 35, Article II of the Constitution, and in Section 1465-76, General Code, comprehends such lawful, specific and definite .requirements or standard of conduct as would advise an employer of his legal obligations.
    2. Section 12593, General. Code, providing that employers, who . knowingly or negligently furnish or erect unsuitable or improper scaffolding, shall be punished by fine or imprisonment, or both, is indefinite and general in its requirements. It merely prescribes a course of conduct recognizable at common law. Its provisions do not comprise “lawful requirement,” within the meaning of the constitutional or statutory provisions referred to. (American Woodenware Mfg. Go. v. Sohorling, 96 Ohio St., 305, approved and followed.)
    (No. 16753
    Decided June 14, 1921;
    and adhered to, after rehearing, May 16, 1922.)
    Ckrtieied by the Court of Appeals of Cuyahoga county.
    On Rehearing.
    The plaintiff, Albert F. Patten, brought suit against The Aluminum Castings Company to recover damages for personal injuries sustained by him on January 11, 1919, while engaged as an employe of the defendant and in the course of his employment. He recovered judgment for $8,750 in the court of common pleas. This judgment was reversed by the court of appeals of the First Appellate District, sitting by designation in Cuyahoga county, which court finding its judgment in conflict with the judgment of another court of appeals, in the case of City of Cleveland v. McLanahan, certified the case to this court.
    In his petition plaintiff alleged that defendant, employing more than five workmen regularly in its business, had elected to comply with the provisions of the Workmen’s Compensation Act (102 O. L., 524), and the acts amendatory thereof and supplementary thereto; that on the date mentioned, while acting in obedience to the orders of the defendant and working upon a certain scaffolding which the defendant had erected and furnished for the purpose of painting a portion of its building, plaintiff was precipitated to the floor and seriously injured by reason of the negligent acts of defendant. The negligent acts complained of are that the defendant unlawfully, knowingly and negligently furnished and caused to be erected an unsuitable and improper scaffolding, Avhich did not give proper protection to life and limb; that it negligently furnished and provided a plank, constituting a part of the scaffolding, which was Aveak, worn, defective and wholly improper and unsuitable for the purpose for which it was used; that it failed and neglected to inspect and test said scaffolding before permitting the same to be used; that it negligently failed to properly and adequately secure and brace said scaffolding so that the same would give proper protection to life and limb; that it negligently erected said scaffolding with too great a span for the planks placed thereon, having regard for the size and strength of the planks and the weight and use to which they AAcre to be subjected; and that it negligently failed to warn plaintiff of the weak, dangerous, insecure, improper and unsuitable condition of said scaffolding.
    The plaintiff averred that the scaffolding erected by the defendant consisted of four ladders set upon the floor in an upright position, in rectangular form; that two of the ladders were connected with stringer planks, and other planks Avere laid crossAvise at right angles to the stringer planks; and that said scaffolding was approximately sixteen feet in height.
    In its answer the defendant plead that it had elected to comply Avith the provisions of the act providing for • the creation of a state insurance fund and liability board of awards, and with the acts of the general assembly amendatory thereof and supplementary thereto; that it had fully complied with Section 1465-69, General Code, having elected to compensate directly its injured employes and having given adequate and sufficient bond; and that on the date mentioned it had complied in all respects with each and every provision of the so-called Workmen’s Compensation Law. The answer also contained defenses of contributory negligence and assumption of risk.
    It was conceded on .the trial, and the court charged the jury, that the defendant had fully complied with the provisions of the Workmen’s Compensation Law. At the close of the plaintiff’s evidence the defendant moved .to arrest the case from the jury and direct a verdict for the defendant. This motion was renewed at the conclusion of all the evidence. Both motions were overruled by the trial court and exceptions noted. The court of appeals having reversed the judgment of the trial court and finding its judgment in conflict with that of another court of appeals, certified the record to this court for final determination as stated above.
    
      Messrs. Payer, Winch, Minshall & Karch and Messrs. Graves & Stahl, for plaintiff in error.
    
      Messrs. M. B. & H. H. Johnson, for defendant in error.
    
      Mr. John G. Price, attorney general, and Mr. R. R. Zurmehly, amici curiae, on behalf of the Industrial Commission.
    
      
      Mr. Webb I. Vorys, for the Ohio Manufacturers Association.
    
      Mr. Timothy S. Hogan and Mr. Geo. B. Okey, for The Ohio State Federation of Labor.
   Jones, J.

Section 35, Article II of the Ohio Constitution adopted September 3,1912, contains a provision that for the purpose of providing compensation to workmen for injuries occasioned in the course of their employment laws should be passed establishing a state fund to be created by compulsory contribution thereto by employers, which fund should be administered by the state; and that any or all rights of action or defenses might be taken away from employes and employers, but that no right of action should be taken away from any employe when the injury arose “from failure of the employer to comply with any lawful requirement for the protection of the lives, health and safety of employes.”

In conformity with this provision of the constitution the legislature passed what is now known as the Workmen’s Compensation Law. Complying with the constitutional provision quoted it passed Section. 1465-76, General Code (103 O. L., 84, amended 104 O. L., 194), which was in force at the time this accident occurred. Briefly stated this section provides that where a personal injury is suffered by an employe while in the course of his employment, and his employer has paid into the state insurance fund the premium provided for in the act, or is authorized directly to compensate such employe in compliance with the Workmen’s Compensation, Law, and in case such injury arises “from the wilful act of such employer or any of such employer’s officers or agents, or from the failure of such employer or any of such employer’s officers or agents to comply ivith cmy lawful requirement for the protection of the lives and safety of employees,” then, in such event, the civil liability of such employer shall not be affected, hut the injured employe may, at his option either claim compensation from the state fund or institute proceedings for damages on account of his injuries. It also provides that such employer shall not be liable for any injury to any employe except as provided in that section.

It is conceded by the record that the defendant in error had complied with all the provisions of the so-called Workmen’s C.ompensation Law. Under the section named the employer, therefore, obtained immunity from suit against it for personal injuries suffered by its employe in the course of his employment, unless the injury was occasioned by the employer’s failure to observe a lawful requirement within the meaning of the provisions of the constitution and the law enacted in pursuance thereto.

In this case Patten, the employe, claims that the employer did not comply with a lawful requirement, as provided in Section 1465-76, General Code, because it failed to observe the provisions of Section 12593, General Code. That section reads as follows: “Whoever, employing or directing another to do or perform labor in. erecting, repairing, altering or painting a house, building or other structure, knowingly or negligently furnishes, erects or causes to be furnished for erection for and in the performance of said labor unsuitable or improper seaf - folding, hoists, stays, ladders or other mechanical ■ contrivances which will not give proper protection to the life and limb of a person so employed'or engaged, shall be fined not more than five hundred dollars or imprisoned not more than three months; or both. ’ ’

It will appear from the allegations of the petition that the gravamen of the defendant’s negligence was in furnishing “unsuitable and improper scaffolding” which did not give proper ■ protection to life and limb; in providing and furnishing a plank which was worn and defective and wholly improper and unsuitable for the purpose for which it was to be used; and in failing adequately and properly to secure, support and brace said scaffolding so that the same would give proper protection to the life and limb of the plaintiff while using it.

We are, therefore, faced at the ouset with the duty of determining whether the statute quoted is a “lawful requirement.” It must be considered in this connection, that if plaintiff in error’s claim is sound, Section 12593, General Code, not only imposes a civil liability upon an employer who has fully complied with the workmen’s compensation law, but also imposes a penalty for failing to observe its provisions. And whether considered from its civil or criminal side, the law undoubtedly would impose, in either case, a drastic liability upon the employer. If considered from a civil angle, it means that although an employer has fully complied with the Workmen’s Compensation Law and paid his premiums into the state fund he may still be liable for damages at the option of the employe; if considered from the criminal angle, that if the statute quoted is such as contended for by counsel for plaintiff in error the employer is subject to a fine of not more than $500 or imprisonment for not more than three months, or both.

The arguments of counsel amount- to this. It is., urged by counsel for the defendant in error that the words of the statute imposing both civil and criminal liability are general, vague and indefinite, that to constitute a “lawful requirement” they should be sufficiently specific to advise the. employer of his exact. duty; and, on the other hand, counsel for plaintiff in error argue that while the language is general in terms it is sufficiently comprehensive to constitute “a lawful requirement” within the mean-; ing of Section 1465-76, General Code.

We are entirely unable to agree with the view of the plaintiff in error. Its application in cases of this character would produce great uncertainty and create doubtful results. How would the defendant in error be able to ascertain the exact requirement made of him as an employer in order to escape civil and criminal liability? Manifestly, it would be impossible for him to ascertain the extent of his duty, until after a jury, by its verdict, had determined that the employer had failed to provide a suitable scaffolding. What would be an “unsuitable or improper” scaffolding? The employer might endeavor honestly to conform to the provisions of the statute relating to suitableness, only to find later that a jury declared otherwise and that he had not performed his duty in that regard. Even different juries in similar cases, and upon the same facts, might not agree in their conclusion as to what would be suitable. No criterion of specific conduct is exacted by the law. No definite requirement is made. It prescribes merely a general course of conduct on the part of the employer in requiring him not to furnish scaffolding that is unsuitable and improper, and which will not give proper protection to the life and limb of the employe.

Let us take this case as a concrete example. The petition alleges that this scaffolding was approximately sixteen feet in height. Would a scaffold of that height be rendered unsuitable if it were not provided with a safety rail for the protection of the workmen? A jury might so find. On the other hand, assuming that this scaffold was two or three feet above the floor, would the same requirement of protection be required on the part of the employer? Yet under the construction of this section, as contended for by plaintiff in error, both instances might be submitted to a jury in order to determine whether or not the defendant had complied with a “lawful requirement” for the safety of his employes. It is impossible to construe the term “lawful requirement,” used in Section 1465-76, General Code, other than as a specific, definite requirement, or a standard of conduct which would advise the employer specifically of his legal obligations. Specific requirements for the safety of employes are elsewhere made in our Code, and doubtless will be made in the future as occasion requires. Originally the scaffolding act comprised both Section 12593 and Section 12594, General Code. The latter now reads as follows:

“Sec. 12594. If such scaffolding or staging as described in the next preceding section, swung or suspended from an overhead support or supports, is more tlian twenty feet from the ground floor it shall not be deemed to give proper protection to the life and limb of persons employed or engaged thereon unless, when in use, it has a safety-rail rising at least thirty-four inches above the floor or main portion extending along the outside thereof, and properly attached thereto, and is provided with braces strong enough to sustain the weight of a man’s body against it and to prevent such scaffolding or staging from swaying from the building or structure. ’ ’

The legislature has employed in this section specific methods or requirements, which, if followed, will relieve the employer from liability where the scaffolding is fastened from overhead supports and is more than twenty feet from the ground floor. Here a standard of conduct has been pointed out and the employer definitely advised wrhat the law requires to be done, else “it shall not be deemed to give proper protection to the life and limb.” There would be no necessity of passing this section relating to suspended scaffolding if reliance could be had upon the general and broad terms of the preceding section imposing upon the defendant a general course of conduct recognizable at common law. Furthermore, if the argument of counsel for plaintiff below be sound, it must be conceded that the legislature could destroy the usefulness of the Workmen’s Compensation Law by enacting a blanket section providing that employers must furnish suitable and safe places, or suitable and safe mechanical devices, in the operation of the various industries. It may not. be amiss to say here that the legislature confronted with a similar danger amended Section -1465-76, General Code (104 O. L., 194), by specifically defining the term “wilful act,” found in that section of tbe Code. Before this amendment it was found that suits were being brought upon allegations of wilful conduct or for such gross negligence as amounted to wilful conduct. ' So concerned was the legislature by reason of the insidious attack thus made in weakening the structure of the Workmen’s Compensation Law that in Febi'uary, 1914, it defined the term “wilful act,” employed in Section 1465-76, General Code, as one meaning “an act done knowingly and purposely with the direct object of injuring another.”

Notwithstanding this legislative check upon this assault upon the Workmen’s Compensation Law a smoke screen is being laid behind which another assault is now made, which is more insidious than the former, and more calculated to break down the entire Workmen’s Compensation Law. Counsel who make the attack upon the law practically concede this in their briefs. In their argument, under a topical heading, they ask: “Is there any ‘lawful requirement’ left upon the statute books of Ohio?” They answer: “There are very few such.statutes in Ohio.” Thereupon they cite-various sections of -the' Ohio code which would hamstring the Workmen’s Compensation Law, and leave only the bare skeleton for its operation.

The first attack was made in the Schorling case, supra. That attack was repulsed by a decision of this court. Of that decision the Ohio State Federation of Labor says in its brief: ‘ ‘ The wage earners of the state accepted with satisfaction the decision in the case of American Woodenware Co. v. Schorling. ”

So important is the principle involved in this case, and so momentous its effects npon the Workmen’s Compensation Law of Ohio, this court deemed it wise not only to grant a rehearing to the parties interested,. but permitted others to file briefs, pro and con, as friends of the court. The attorney general filed his brief on behalf of the state. The Ohio Manufacturers Association filed its brief on behalf of the Ohio employers, and the Ohio State Federation of Labor filed its brief on behalf of the wage-earning members of that association. Each of these filing a brief as amicus curiae, joined in asking this court to so construe the term “lawful requirement” as not to “menace the integrity of the Workmen’s Compensation Law.”

The attorney general, though conceding that the state itself is not a party, agrees that the question in this case “is of such importance and its decision will have such a vital effect upon the Ohio Workmen’s Compensation Act” that the filing of a brief by the state seemed imperative.

The Ohio Manufacturers Association concedes the great importance of the question involved, and agrees, in principle, with the legal views expressed by the Federation of Labor. Opening its argument in favor of the defendant in error the Ohio State Federation of Labor, through its counsel, says that if “The so-called ‘open liability’ * * * is to be widened to such an extent as to be tantamount to a return to the old order, in any considerable degree, it were far better to surrender and abandon it altogether.” It concedes that industry is unable to carry the double burden resulting from the two systems of compensation, and argues that “to force the employer to become an insurer for his employes and at the same time deny him immunity from civil liability for negligence is to take his property without due process of law and deny him the equal protection of the laws.” It insists that safety requirements “should be such as to reasonably advise the employer in advance as to the steps he must take and the methods he must pursue.” Finally, the Ohio State Federation of Labor in its brief says: ‘ ‘ The wage earners recognize that justice to the employers requires that ‘lawful requirements’ should be reasonably specific, and are apprehensive that to hold statutes to be such which simply enjoin care and caution in general terms would result in such a flood of litigation in the courts as that the old order, in a very considerable measure, would be restored. They deplore the possibility of such backward step.”

The interests of the Ohio Manufacturers Association and the Ohio State Federation of Labor do not always run in the same channel. Here their views coincide. We have reverted to these briefs not only as supporting the principle we announce in this case, but to show that, from a practical standpoint, their views coincide with our own, that any other construction would emasculate the present Workmen’s Compensation Law.

It is submitted that if a petition in an ordinary' action should merely allege that a defendant had negligently erected unsuitable or improper scaffolding, the court would require the plaintiff to state specifically wherein such scaffolding was unsuitable or improper. This statute Is a penal statute. If a jury found that a civil liability arose from its-viola,lion, the same or another jury might determine from the same evidence that the defendant had criminally violated the section, the only difference being that the criminal violation must be found beyond a reasonable doubt. Considering the statute from its penal side, can it be argued that its terms are sufficiently definite and certain to advise the defendant whether he has committed a criminal act? Does its criminality not depend upon the jury’s view whether such scaffolding would be unsuitable or improper?

The court of appeals reversed the instant case and entered final judgment for the defendant in error upon the authority of American Woodenware Mfg. Co. v. Schorling, 96 Ohio St., 305. There is no distinction in principle between this case and the Schorling case. In the latter, Sections 15 and 16 of the Industrial Commission Act were under consideration, and the allegations of the petition were predicated upon the failure to observe a “lawful requirement” as named in those sections. Briefly stated, the petition alleged that the defendant failed to provide a safe place to work. This court, confining itself to these two sections of the Industrial Commission Act, and to the case made in the petition, stated in proposition 2 of its syllabus: “The provisions of Sections 15 and 16 are not the lawful requirements referred to by, and within the meaning of, Section' 35, Article II of the Constitution.” The court held that these sections of the statute could be redeemed within the scheme of the Industrial Commission Act by imposing upon employers the obligation to obey “particular orders and requirements” made by the Industrial Commi'ssion. However, that feature of the case was not drawn into question by the allegations of the petition, since the petition was founded wholly upon the fact that the employer had not complied with the lawful requirement by reason of his failure to furnish a safe place to work. These sections, as does the scaffolding section in controversy, employed general terms and not specific requirements. In the third proposition of the syllabus of the Schorling case this court held: “The term ‘lawful requirement,’ as used in Section 35, Article II of the Constitution, and Section 29 of the Workmen’s Compensation Act (103 O. L., 84), does not include a general course of conduct, or those general duties and obligations of care and caution which rest upon employers and employes, and all other members of the community, for the protection of life, health and safety.”

Even orders of the commission, if made in the broad and general terms of the statute, might be ineffectual, but, as stated in the opinion in that case (page 321), if the order required “certain specific precautions to be taken and safeguards to be provided,” it would be held to be a “lawful requirement” within the meaning of Section 1465-76, General Code.

When the court of appeals certified the case upon a finding that its judgment was in conflict with the judgment of another court of appeals, it became the duty of that court to render judgment and incorporate it in its entry. Because of the reversal by the court of appeals plaintiff in error in that court was entitled to an entry of judgment. Furthermore, it is only the “judgments” of the court of appeals that this court is entitled to review. Crawford v. Weidemeyer, 93 Ohio St., 461.

Proceeding, therefore, to render the judgment the court of appeals should have rendered, this court renders judgment in favor of the defendant in error, who was plaintiff in error in the court of appeals.

Judgment for defendant in error.

Hough, Robinson and Matthias, JJ., concur.

Marshall, C. J., concurs in the judgment.

Hough, J.,

concurring. .1 adhere to the conclusion announced at the prior disposition of this case. The burden of the majority opinion upon the first hearing of the case rested largely upon the former holding of this court in the case of The American Woodevrware Mfg. Co. v. Schorting, 96 Ohio St., 305. Then, as now, the court was sharply divided, and a prompt and very forceful brief on application for rehearing was filed. The Schorling case was also decided by a divided court. One judge who dissented in that case also dissented in this. The author of the opinion in that case did not concur in the opinion of the majority in the Patten case. Because of this variety of views on the part of the members of the court, together with an appreciation of the importance of the questions argued, and with the idea, of obtaining more light upon the subject, I felt it my duty to support the application for rehearing. This was done and the case was resubmitted and re-argued, resulting in no change of position on the part of any of the members of the court.

Under such situation I deem it appropriate, in justice to myself, to briefly outline in the form of this concurring opinion my views on the issues presented.

The question to be determined is whether Section 12593, General Code, is a “lawful requirement for the protection of the lives and safety of employes,” within the meaning of Section 1465-76, General Code, and Section 35, Article II of the Constitution of Ohio as amended in 1912.

A compensation law existed in this state prior to the constitutional convention of 1912. In lieu of the term “lawful requirement,” used in the present Workmen’s Compensation Law, the former act used the clause, “any municipal ordinance or lawful order of any duly authorized officer, or any statute for the protection of the life or safety of employes.”

This court in passing upon that act, probably upon its constitutionality, used the term “lawful requirement” as descriptive of the above clause, and, then, when the constitution-makers proposed Section 35, Article II, for adoption, they borrowed the term “lawful requirement” as descriptive of that clause cf the then existing compensation law. Later the legislature adopted the term used in the constitution, and in this way the term “lawful requirement” was injected into the substantive law of this state.

Its meaning and scope is therefore derived from and limited to the language as written into the first compensation law. To be, then, within the exception of Section 29 of the Workmen’s Compensation Law (103 O. L., 84), there must be a failure to comply with some ordinance, statute, or lawful order of the commission.

If it be an order, it must be a lawful order; it must be such an order as the commission has the authority to issue; it must be reasonable,' in contradistinction to arbitrary, or one impossible of performance; and, if it be an ordinance or statute, it undoubtedly must be a valid ordinance or statute, an act having constitutional as well as effective operative power behind it.

Patten is so situated in relation to his employer that he comes within the purview of the Workmen’s Compensation Act, unless he may be taken outside its provisions by this term “lawful requirement.” It is his claim that he comes within this exception, and that Section 12593, General Code, gives him that right to so claim.

The section itself is penal in nature, but whether or not it is penally enforceable can in no way affect the question in this case. Neither is it important to determine whether it is enforceable in any degree, either for or against a party not so situated as to come within the terms of the Workmen’s Compensation Law.

I know of no reason by which the constitutionality of the act can be assailed. The argument is made that if the statute is not available to Patten in this ease, it must be unconstitutional. This is not true. A law may be in harmony with various provisions of the constitution, and yet fail to be operative, or enforceable, or applicable to a given situation.

The Schorling case, supra, decided that the term “lawful requirement” as used in Section 35, Article II of the Constitution, and Section 29 of the Workmen’s Compensation Law (103 O. L., 84), “does not include a general course of conduct, or those general duties and obligations of care and caution which rest upon employers and employes, and all other members of the community, for the protection of life, health and safety.”

This is a definite announcement of law as it exists in this state today. The court there had under consideration whether or not Sections 15 and 16 of the Industrial Commission Act (103 O. L., 95), were lawful requirements, and the court held in effect that those sections simply represented the groundwork and machinery for putting the Workmen’s Compensation Law and the Industrial Commission Act into operation. Those sections represented the authority for the commission and its duly authorized officers to issue general and special orders concerning places of employment, to secure the lives, health and safety of the employes.

The abstract proposition quoted above of course applies to the state of facts that existed in the Schorling case, and must be so construed. But, further, and beyond that case, it announced a rule of law definitely and concisely, and that rule of law is that the term “lawful requirement” as used in the constitution and in the statute does not include or refer to a cause of action that was formerly recognized as a common-law action. To my mind this is a very salutary rule, establishing a definite line of demarcation for the guidance of the general public. If a cause of action is founded on general negligence and nothing else, and the right of action accrues to one coming within the terms of the Workmen’s Compensation Law, he must look to that law for relief, and he must not take advantage of an act of the legislature on the statute books, or an ordinance, unless the terms of that act furnish him something as an element of his cause of action above and beyond the pale of that which was formerly contemplated by the common law.

In examining the elements of negligence charged in the petition, and the proof submitted thereunder in the bill of exceptions, in the present case, and analyzing both in the light of the provisions of Section 12593, General Code, I am able to find nothing over, above, or beyond a simon-pure common-law action for negligence.

If there were a specific requirement in that section, upon which was fastened an allegation of failure or refusal to comply, supported by proof, the conclusion would necessarily be different. Any other rule adopted, or position taken, would permit the Workmen’s Compensation Law to drift into an unconstitutional operation. As it stands now, its constitutionality approved by this court, and by the United States supreme court, it is a fair protection to both employer and employe, and it represents an approved policy of this state, as exemplified by the action of the legislature and the subsequent approval of this court.

My conclusion therefore is that Section 12593, General Code, for the purposes of this action is unenforceable as a lawful requirement, such as intended under the exception in Section 29 of the Workmen’s Compensation Law, and Section 35, Article II of the Constitution of Ohio. And I resent the imputation or insinuation that the provisions of the constitution are any less sacred to me or regarded in any less solemn light, by me than by any other member of this or any other court.

Maeshadl, C. J.,

dissenting. While I have styled this opinion a dissenting opinion, I wish to state at thé outset that I concur in the judgment rendered by the majority of the court in this case solely upon the ground that there is no evidence shown by the record to support the verdict and judgment.

While for that reason I concur in the judgment of the majority of this court, I dissent from the reasoning in the majority opinion.

In the majority opinion, written by Judge Jones and concurred in by Judges Matthias, Bobinson and Hough, the judgment of affirmance was directly based upon the principles declared in American Woodenware Mfg. Co. v. Schorling, 96 Ohio St., 305, and it was stated in the syllabus that the Schorling case was approved and followed.

Judge Johnson wrote the opinion in the SchorUng case, and that judgment was concurred in by all the members of the court except Judges Donahue and Wanamaker. Judge Johnson has published a dissenting opinion in this case, in which he seeks, to distinguish it from the Schorling case, but fails to convince the majority that there is any distinction in principle.

Judge Wanamaker in a vigorous opinion dissented from the judgment in the Schorling case, and in an equally vigorous opinion dissents from the judgment in the instant case. In his dissenting opinion in the instant ease he declares that the question decided in this case is identical in principle with the question decided in the Schorling case.

On the reargument of this cause, counsel for plaintiff in error employed nine pages of his printed brief in attempting to state what he believed to be the true meaning and the proper application of the principles laid down in the Schorling case. He earnestly argued, both in brief and orally, that the Schorling case, when properly construed, understood and applied, fully sustains the contentions of the plaintiff in error in this cause. Counsel for defendant in error was equally earnest in contending that the Schorling case contains sound doctrine, but that it fully sustains the contentions of the defendant in error. Counsel appearing as friends of the court, representing the Ohio State Federation of Labor, filed a brief arguing that the judgment in this cause should be affirmed upon the authority of the Schor.ling case, and expressed the fear that any different declaration of principles from the declarations contained in the Schorling case would be subversive and destructive of the Workmen’s Compensation Law. Counsel appearing as a friend of the court, on behalf of the. Ohio Manufacturers Association, filed a brief approving the Schorling case and arguing that that case was conclusive of the present controversy and that therefore the judgment should be affirmed. Other counsel having a case pending in the district court of the United States for the northern district of Ohio, and therefore interested in having this-judgment reversed, filed a brief in which it was sought to distinguish the Schorling case and to show that it was not decisive of the present controversy. A brief is also filed by the Cleveland Building Trades Council, and while in it there is no discussion of the Schorlmg case, or any other judicial authority, issue is taken with the wishes expressed by the Ohio Manufacturers Association and Ohio State Federation of Labor, and it is strongly urged by the Cleveland Building Trades Council that Section 12593, General Code, be sustained as a lawful requirement.

The foregoing narration demonstrates not only the seriousness of the state of the law concerning lawful requirements, but it also demonstrates that the efforts of this court so far have resulted in further confusing the situation, and that the Schorlmg case, as the parent case, in attempting to unravel this apparently hopeless tangle, is so little understood and has been so confusing to the bar of the state, and to the lower courts, and even to the members of this court, that its decision must be held to have rendered the situation worse instead of better. After the able reargument of this cause in this court, and after full consideration of the briefs of counsel who appeared as friends of the court, there is no change in the alignment of this court upon the judgment previously rendered. With different courts of appeals reaching different conclusions, and therefore certifying causes to this court for review, with trial courts widely differing in their rulings upon pleadings and instructions to juries, with the bar of the state arguing pro and con as to the true meaning of the Schorlmg case, and the members of this court unable to agree upon its true meaning and application, the situation is indeed confused.

In 1912, by constitutional amendment, this court was limited in its jurisdiction, and was given such measure of control over the volume of its business, and of the kind and character of the causes to be heard and determined, as to make it possible to reduce the number of cases to be heard, so that the court might keep the docket from congestion and at the same time retain full jurisdiction to authoritatively declare the law upon all important principles of law and issues arising under the Constitutions of the United States and the state of Ohio; and to declare the proper construction and interpretation of the statutes of the state of Ohio; and to declare the law upon all important questions of general law, where there is a want of uniformity in the decisions of the courts of appeals of the state of Ohio; and, finally, to declare the law upon all questions of public and great general interest. It was the spirit of that amendment to give to litigants one trial and one review, and since its adoption the primary function of this court is not to secure justice to the immediate parties; its ultimate end is to maintain uniformity of the decisions in the intermediate courts, to determine constitutional questions, and to make the law clearer for thé general public. Uniformity and simplification are the first great essentials in the interpretation, administration and enforcement of law. The simplest and therefore the best definition of law is the definition of Sir William Blackstone which declares it to be a rule of action commanding what is right and prohibiting what is wrong. “Rule” is defined to be a condition of uniformity. Law therefore uniformly commands the right and uniformly prohibits the wrong. The constitutional convention of 1851 recognized this principle in declaring that all laws of a general nature should have uniform operation throughout the state. The sound and salutary doctrine of stare decisis is as old as jurisprudence itself. It being recognized, therefore, that it is the province of this court to standardize, to clarify, to simplify and to make uniform the meaning and the application of rules of the common law, statutes.^and constitutions, what shall be said of the present situation of the subject of lawful requirements ? If six judges could agree, the offending statute could be declared unconstitutional. Where a statute is not declared unconstitutional, four judges might concur in a judgment which would settle the law as a rule of action for the guidance of the lower courts, the bar and the general public, provided the declarations of the majority were made so clear as not to be the subject of controversy. What shall be said, however, of a decision where the judge who wrote the majority opinion places a construction upon his own language which not only differs from those who concurred with him but also those who dissented from him?

Based upon the foregoing observations and measured by the foregoing standards, let us examine the situation presented by the various opinions on file in this case, and compare them with former adjudications of this court and with decisions of the supreme court of the United States.

Inasmuch as the Schorling case is the basis of the discussion in the opinions in the instant case, and also in nearly all the briefs on file, it should be stated at the outset that I disagree with the majority opinion in the Schorling case, and it seems necessary to make brief reference to it. That case involved the construction of Sections 871-15 and 871-16, General Code, and held that the purpose and intent of those sections was to bring all employers within the scope and jurisdiction of the commission, and to impose upon them the obligation to comply with the orders and requirements of the commission when made, and that the provisions of those sections are not the lawful requirements referred to by and within the meaning of Section 35, Article II of the Constitution. It was held that they are not lawful requirements, because that term does not include a general course of conduct or those general duties and obligations of care and caution which rest upon employers for the protection of life, health and safety. It is evident that the majority were of the opinion at that time that any other construction of those sections would render them unconstitutional, because on page 331 of the opinion we find the following: “It seems inconceivable that the framers of the amendment, Section 35, Article II, used the term ‘lawful requirement’ in a sense that would render the statute passed pursuant to it invalid.” No. statement fis made or opinion expressed as to what provision of the constitution would thereby be violated, rendering the statute invalid. The discussion does, however, lead to the inference that it would be invalid because of not being sufficiently specific and definite to advise parties to a criminal proceeding of the nature and cause of the accusation, and, in a civil proceeding, because it would be conferring upon courts and juries legislative powers, permitting each court and jury to fix a separate standard of conduct.

While there has been much discussion of the meaning and application of the Schorling case, it must be admitted that the third paragraph of the syllabus in that case, as elucidated by the statements on page 321 of the opinion, has caused the bench and bar generally to feel that the spirit of the Schorling case is fairly stated in the syllabus of the instant case. The inquiry is therefore resolved into the question as to how definite and specific must be the statement of a requirement to render it lawful. It is true that in the Schorling case Sections 15 and 16 of the Industrial Commission Act were not declared unconstitutional, but as that case has been understood by the bench and bar its effect is to render those sections unconstitutional. That decision was supported only by five members of thi3 court, and they were therefore powerless to declare those sections unconstitutional, and it seems reasonable to suppose therefore that if there had been six votes instead of five the Schorling case would have been disposed of in that manner.

It has been contended by those who seek to draw a distinction between the Patten case and the Schorling case that the language of Section 12593, General Code, is more definite and specific than the language in Sections 15 and 16 of the Industrial Commission Act. It is true that if Sections 15 and 16 are read without reference to any other sections, such views are well founded. But when Sections 15 and 16 are read in the light of the definition contained in paragraph 11 of Section 13, a different situation is presented. If, instead of using the word “safe” in Sections 15 and 16, we substitute the definition of that word found in Section 13, they will read as follows: “Section 871-15, Every employer shall furnish employment which shall be as free from danger to the Ufe, health, safety or welfare as the■ nature of the employment will reasonably permit for the employes therein, and shall furnish a place of employment which shall be as free from danger to the life, health, safety or welfare as the nature of the employment will reasonably permit for the employes therein, and for frequenters thereof, and shall furnish and use safety devices and safeguards causing freedom from danger to the life, health, safety or welfare of employes or frequenters as the nature of the employment will reasonably permit and shall adopt and use methods and processes, follow and obey orders and prescribe hours of labor r easonably adequate to render such employment and places of employment as free from danger to the Ufe, health, safety or welfare of employes or frequenters as the nature of the employment will reasonably permit, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employes and frequenters.”

It is unnecessary to paraphrase Section 16, because the same result would be produced.

Let us now compare the language of Section 15, paraphrased as’ above, with the language of Section 12593, to determine whether the latter section is more definite and specific than the former:

“Sec. 12593. Whoever, employing or directing another to do or perform labor in erecting, repairing, altering or painting a house, building or other structure, knowingly or negligently furnishes, erects or eauses to be furnished for erection for and in the performance of said labor unsuitáble or improper scaffolding, hoists, stays, ladders or other mechanical contrivances which will not give proper protection to the life and limb of a person so employed or engaged, shall be fined not more than five hundred dollars or imprisoned not more than three months, or both.”

It is apparent that the difference, if any, is clearly favorable to Sections 15 and 16.

The error in the SchorUng case is further emphasized, and the difficult situation thereby rendered further intensified, when it is pointed out that the Schorling case was decided May 22, 1917, and that at the same term of this court, on April 17, 1917, the case of State v. Schaeffer, 96 Ohio St., 215, wa's decided, in which Judges Nichols, Jones, Matthias, Newman, Johnson and Wanamaker concurred, holding that a charge of manslaughter can be predicated upon a violation of Section 12603, General Code, the pertinent language of which is as follows: “Whoever operates a motor vehicle * * * at a speed greater than is reasonable or proper, having regard for width, traffic, use and the general and usual rules of such road or highway, or so as to endanger the property, life or limb of any person. ”

A stricter rule, so far as being definite and specific is concerned, is necessarily required in a criminal prosecution, because of the constitutional requirement that a person has a right to be advised of the nature and cause of the accusation against him.

We further point out that on March 6, 1917, the case of Neave Bldg. Co. v. Roudebush, Admr., 96 Ohio St., 40, was decided by the concurrence of Judges Nichols, Wanamaker, Johnson and Newman, and in that case a negligence suit was predicated upon an ordinance of the city of Cincinnati as follows: “In every fireproof or semi-fireproof building now in existence or hereafter erected every window above the second story thereof shall be equipped with a suitable device which will permit the cleaning of the exterior of such windows without endangering life and limb. Provided, however, that such device need not be placed on any window that can be easily cleaned from within.” Surely the language which was the subject-matter of both of these latter cases was less specific and definite than the language of Sections 15 and 16 of the Industrial Commission Act, as defined by Section 13 of the act.

Another case indicating the even trend of the minds of this court is that of Leis v. Cleveland Ry. Co., 101 Ohio St., 162, in which, by unanimous judgment of the court, on April 6,1920, this court upheld the validity of certain ordinances of the city of Cleveland as follows:

“Any motorman or other person or persons having the charge or control of any motor or other car being operated upon any track or any street railroad in the city of Cleveland shall exercise all possible care and vigilance upon approaching any other car which has stopped for the purpose of receiving or letting off a passenger or passengers.
“Any car approaching another car which has been stopped for any purpose, and any car approaching a curve shall do so with the greatest care; and shall be under complete control of the person running the same.”

It should further be added that one of the results of the failure of the bench and bar to properly unde'rstand and apply the Schorlmg case has been that attorneys have frequently brought eases to this court for certification and review which were believed to turn upon the principle of the Schorlmg case, and several of these motions have been sustained while others have been overruled. The procedure therefore under the lawful requirement statute is wholly lacking in that certainty and uniformity which should characterize the proceedings of this court.

In view of the fact that this court has declared in the Roudebush case, supra, that the window-cleaning ordinance of Cincinnati is valid, and in the Leis case, supra, that the Cleveland motor-car ordinance is valid, and has also declared that manslaughter can be predicated upon Section 12603, General Code, and it being beyond dispute that the language in those ordinances and in Section 12603 is less definite and specific than the language in Sections 15 and 16 of the Industrial Commission Act and in Section 12593, General Code, it must follow that any action brought by an employe against his employer for- the failure to observe the provisions of those ordinances, or Section 12603, General Code, must necessarily result in the court’s holding that such a suit could be maintained.

I have already referred to the difficulty which must necessarily be experienced by the bench in ruling upon these matters in pending suits, and the difficulties which must be experienced by the bar .in properly and safely advising their clients.; but a problem much greater and more mystifying is presented to the employers of the state, not versed in the. law, and yet presumed to know the law. With no authority to whom they can turn, and no statute or decision well enough understood or clearly enough defined to enable them to steer between Scylla and Charybdis, what answer shall be made to them? There are a large number of statutes in Ohio, and a larger number of ordinances in the cities and villages of the state, which are the subject-matter of lawful requirements. Some of them have been declared valid, others have been declared invalid, though all of them seem to be couched in the same general form of expression. Until each and every statute and ordinance has been passed upon, what obligation rests upon the employers of the state?

Enough has been said of the Schorling■ case, but something further should be added relative to the erroneous views of the majority in the instant case. If the views of the majority are correct, then Section 12593, General Code, is invalid, and the legislature has exceeded its constitutional authority, and therefore the judgment of this court should not rest upon the judgment of four judges. The failure to have the concurrence of six judges, under the circumstances, and upon the reasoning declared in the majority opinion, should have resulted in this case being reversed.

The judgment of this court, agreed in by a bare majority, rendering the provisions of Section 12593, General Code, null and void, even though the decision does not in terms declare it to be unconstitutional, nevertheless constitutes a distinct transgression upon the constitution, because that section cannot be unenforceable upon any grounds other than its unconstitutionality, unless the language of the section itself is meaningless or not capable of being understood. Section- 1465-76, General'Code, contains the expression “lawful requirement.” It does hot contain the expression found in the first paragraph of the syllabus cf the majority in the instant case, “lawful, specific and definite requirements.” Surely any statutory requirement becomes a lawful requirement, unless (a) the statute is meaningless and unintelligible, or (b) the statute is unconstitutional. What is the test of unlawfúlness in a requirement? The majority answer that the test is whether the statute is so specific and definite as to advise an employer of his legal obligations. If this is the true test, and if this statute will not stand such a test, then it is clearly unconstitutional. This is clearly the declaration of the supreme court of the United States in the case of United States v. L. Cohen Grocery Co., 255 U. S., 81. It was held in that case that because the Lever Act, maMng it unlawful to mate any unjust or unreasonable rate or charge in dealing in necessaries, fixed no ascertainable standard of guilt, it “amounted to a delegation by congress of legislative power to courts and juries to determine what acts should be held to be criminal and punishable.” True, that was a federal statute being construed by a federal court. But the Constitution of Ohio delegates all legislative power to the legislative branch of the government and forbids its exercise by either of the other branches. The majority opinion published after the first argument of the instant case evidently recognized the force of that federal decision, and not only made a reference to that case but a rather lengthy quotation from it. The majority of this court evidently observed the fatal position in which they were placed by any reference to that case, and snch reference has been stricken out of the revised opinion since the reargument. That case may be taken out of the opinion of this court, but its fatal effect cannot be eliminated from the judgment of this court. A judgment which holds Section 12593, General Code, unenforceable in a civil proceeding must for a stronger reason hold it unenforceable in a criminal prosecution, and therefore the whole statute, not only in its criminal but also in its civil remedy, is rendered unconstitutional. The fact that the majority opinion has carefully avoided the use of the word unconstitutional does not by any means affect the result. Neither does such careful avoidance obviate the fact that a statute has been declared unconstitutional by less than the number of concurrences required by Section 2, Article IV of the Constitution as amended in 1912.

To further illustrate the unfortunate situation of this entire subject it should be pointed out that there are at this time a number of cases involving the same subject-matter, under different statutes, which cases have been submitted to this court and not yet finally disposed of. It so happens that some of these statutes were declared unenforceable by the court of appeals, thereby making it necessary to have only four votes in this court for an affirmance of those judgments, resulting in declaring those particular statutes unconstitutional in a proper way. In other cases, like the instant case, six concurrences are required. Numerous suits are still pending in courts of appeals, and it is conceivable that a large number of other suits will traverse the lower courts. Although it is apparent that all such statutes are couched in much the same language, it is fair to suppose in the future as in the past that some of these statutes will be upheld and others declared unenforceable.

While there is a wide divergence of opinion concerning the meaning and application of the Schorling case there can be no difference of opinion as to the principles declared by the syllabus and majority opinion in the instant case. A majority of this court undoubtedly have the right to declare the law upon all propositions, except that .of declaring a .statute unconstitutional in reversal of a judgment of the court of appeals. The pronouncement of a majority would ordinarily be accepted as final. Their pronouncements cannot, however, be accepted as a finality in the face of so many decisions involving identical principles which have been decided directly to the contrary.

If the former decisions of this court upon this general subject were uniform and harmonious I would be willing to accept the established doctrine and concur therein regardless of any convictions I might have on the subject, in the interest of uniformity and out of deference to the doctrine of stare decisis. There is, however, in this situation, such lack of uniformity, and such contradiction in principle, that it is my duty as a member of this court to declare my belief that the declarations of the Schorlmg case and the declarations of the majority in the instant case are unsound and that the true doctrine is declared in the other three eases herein discussed.

This discussion has painted a dark picture, and the question naturally arises: What is the remedy? The answer is difficult; but it may be suggested, first, that the provisions of the constitution requiring the concurrence of six judges in order to declare a law unconstitutional should be observed both in the spirit and to the letter; second, that it is the clear duty of this court to so modify the declarations found in a, number of its recent decisions as to make, them consistent and uniform. It is the duty of this court to so unify, to so simplify and to so construe the statutés of the staté of Ohio, and to so harmonize the decisions of the courts of Ohio, that not only the people will be able to understand and know the law, but that the bar will be able to expound the law, and the lower courts be able to construe and apply the law. If it'is impossible for this court to bring about such a state of affairs, then' it must be held that the remedy lies alone with the legislature:

Johnson, J.,

dissenting. I hold a different view concerning the scaffolding statute involved in this case than that entertained by the. majority of the court.

I join in. the high appreciation everywhere entertained of the Workmen’s Compensation Law. And I conceive it to be the sacred duty of the court to uphold and enforce that law in its letter and spirit. Experience has shown that it provides a beneficent, workable plan to compensate injured workmen and their dependents in accordance with humane and scientific principles, and offers a very substantial escape from the evils which were enmeshed in worn-out, mischievous and wasteful methods so long in use.

Impressed with this sense of duty this court, in many cases, carefully considered, has construed and upheld the. law. Its validity has been sustained and its provisions have been liberally construed in favor of its beneficiaries.

Concerning the term “lawful requirement,” an analysis was made of the constitutional provision and the statute in American Woodenware Mfg. Co. v. Schorling, 96 Ohio St., 305. It was in that case declared that (a) statutes of the state, (b) municipal ordinances, and (c) orders made by the industrial commission prescribing means or methods to protect the lives, health, safety and welfare of employes, are lawful requirements within the meaning of Section 35, Article. II of the Constitution, and of the "Workmen’s Compensation Law passed thereunder.

In this case it is conceded that the defendant had. complied with the provisions of the Workmen’s Compensation Law and had paid the required premiums into the state insurance fund. The plaintiff, Patten, rests his case on the alleged failure of the employer to comply with a lawful requirement for the protection of the life, health and safety of employes, and his specific claim in that regard is that the company failed to comply with the provisions of Section 12593, General Code.

The pertinent part of that section is as follows:

“Whoever, employing * * * another to do or perform labor in erecting, repairing, altering or painting a house, building * * * knowingly or negligently furnishes, erects or causes to be furnished for erection for and in the performance of said labor unsuitable or improper scaffolding, hoists, stays, ladders or other mechanical contrivances which will not give proper protection, ’ ’ etc. The majority of this court now holds that the provisions of that section do not constitute a lawful requirement within the meaning of the constitution and statutory provisions touching the subject. They are of the opinion that the terms of the statute are indefinite and not sufficiently specific to bring them within the provision of the constitution and the statute.

Section 35, Article II of the Constitution adopted September 3, 1912, authorizes the passage of laws establishing a state insurance fund to be created by compulsory contribution thereto by employers and taking away any and all rights of actions or' defenses from employes and employers, but no right of action “shall be taken away from any employe when the injury, disease or death arises from failure of the employer to comply with any lawful requirement for the protection of the lives, health and safety of employes.”

The rationale of the entire plan is that experience has demonstrated that upon just and scientific considerations injuries received by employes in the course of their employment, not wilfully self-inflicted, should be a charge upon the business in which they ai’e engaged — the business being in the line of causation — and provisions for taking away rights of action against employers who were compelled to contribute to the insurance fund were regarded as equally just and essential to the validity of the plan, unless the injury was caused by the wilful act of the employer or his agents, or from failure to comply with any lawful requirement for protection of employes.

In American Woodenware Mfg. Co. v. Schorling, supra, the employe complained of the negligence of his employer in permitting a load of lumber to be piled on a truck so that it toppled over and injured him while in the performance of his work. It was contended that this act of negligence constituted a failure to comply with a lawful requirement, within the meaning of the constitutional provision above referred to and within the provisions of Sections 15 and 16 of the Industrial Commission Act, 103 Ohio Laws, 95.

In the opinion the constitutional amendment and the commission act were discussed, and this court said, at page 313: “If the failure to comply ‘with a lawful requirement’ includes an act which was actionable negligence simply because of the rules of common law, then the portion of the section [Section 35] which authorizes the taking away of any or all rights of action or defenses of employes and employers would be practically meaningless and inoperative. We should be holding that embodied in the same section was power to take away nil rights of actions or defenses of employes and employers, and also a practical denial of power to take away cmy right of action.” Other reasons equally conclusive were pointed out in the statute, and it was held in the third proposition of the syllabus that “The term ‘lawful requirement’ as used in Section 35, Article II of the Constitution, and Section 29 of the Workmen’s Compensation Act (103 O. L., 84), doés not include a general course of conduct, or those general duties and obligations of care and caution which rest upon employers and employes, and all other members of the community, for the protection of life, health and safety.”

As to Sections 15 and 16 of the Industrial Commission Act the court held in the second proposition of the syllabus that “The Industrial Commission Act (103 O. L., 95) provides for the creation of an administrative board with power to supervise all places of employment, to prescribe general rules and requirements concerning all employments and places of employment and particular orders and requirements for particular employers and places of employment, to secure the lives, health, safety and welfare of every employe in such employments, and every frequenter of such places of employment. The purpose and intent of Sections 15 and 16 of the act was to bring all employers within the scope of the jurisdiction and authority of the commission and to impose on them the obligation to comply with the orders and requirements of the commission when duly made. The provisions of Sections 15 and 16 are not the la'wful requirements referred to by, and within the meaning of, Section 35, Article II of the Constitution. ”

It was also held that “By the provisions of Section 25 of the Industrial Commission Act an order made by the industrial commission to employers generally or to a particular employer, with reference to safe employment or place of employment, is a lawful requirement (until altered in the manner provided for in the act), for failure to comply with which, or with any statute or municipal ordinance prescribing means or methods required to be used to protect the lives, health, safety and welfare of employes, the employer under the proviso contained in Section 35, Article II of the Constitution, and Section 29 of the Workmen’s Compensation Act, is liable to an employe injured by reason of such failure. ’ ’

It is. perfectly clear that the framers of th;e constitutional amendment intended to provide for the creation of a fund to which employers should be compelled to contribute, and that, at the same time, in recognition of. such contribution, rights of actions against them should be taken away, except for the failure of the employer to comply with any lawful requirement for the protection of the employes, or for the employer’s wilful acts.

It is equally manifest that as above shown it was not intended that, the term “lawful requirement” should include the duties and obligations of care and caution which rest upon employers for the protection and safety of employes under the common law, because in that case the provision for taking away rights of action would be absolutely inoperative and meaningless. Such holding would violate every canon of constitutional construction. It would be compelling employers to malee contributions to a fund without furnishing them any protection whatever or serving any purpose in. recognition of their constitutional rights. It would violate the spirit of fair dealing and justice which underlies our system of jurisprudence.

The Industrial Commission Act was passed within a few weeks after the Workmen’s Compensation Act was passed. Its evident purpose was to provide effective assistance in the accomplishment of the beneficent purposes of that law. Obeying rules of constitutional and statutory construction, whose value and soundness are nowhere denied, it was found that the Workmen’s Compensation Act and the Industrial Commission Act were in complete harmony.

In the Schorling case there was presented simply a common-law action in negligence. In this case the plaintiff predicates his action upon the failure of the employer to comply with the requirements of a statute of the state, which he contends is a lawful requirement within the constitution and the statute.

This court now holds that the provisions of the statute do not constitute a lawful requirement within the meaning of the Constitution of Ohio, and the Workmen’s Compensation Law.

It is the opinion of the majority that the terms of the statute are general and indefinite and not sufficiently specific to bring them within the constitutional provision. It is said that no criterion of specific conduct or definite requirement is made, and that it prescribes merely a general course of conduct on the part of the employer touching the subject.

It is contended that it is a penal statute, and that if a criminal proceeding is brought under it its terms are hot sufficiently definite and certain to advise the defendant whether he has committed a criminal act.

It is of course conceded that in a criminal proceeding the defendant is entitled to be advised of the nature of the crime with which he is charged. There is no need to discuss that fundamental guaranty.

As already stated, it was held in the Schorling case that the term “lawful requirement,” as used in Section 35, Article II of the Constitution, does not include a general course of conduct or those general duties or obligations of care which rest upon employers and the other members of the community. But it is therein pointed out that an order made by the industrial commission to employers generally, or to a particular employer, iu accordance with the provisions of Section 25 of the Industrial Commission Act, and any statute or municipal ordinance prescribing means or methods required to be used to protect the lives, health, safety and welfare of employes., are Imvful requirements for the violation of which an employer under the terms of the constitutional amendment is liable to an employe injured by reason of such failure.

Now, consider the section involved in this case, Section 12593, General Code. It is a special statutory provision relating to one particular subject, namely, the erection of scaffolding to be used in constructing, repairing, altering or painting buildings, and directs specific attention to the selection and construction of hoists, stays, ladders., or other mechanical contrivances connected with the scaffolding, and provides that whoever knowingly or negligently furnishes unsuitable or improper scaffolding, hoists., stays, ladders, or other mechanical contrivances, which will not give proper protection, shall, etc.

The claim of the plaintiff in this case is that the defendant knowingly and negligently furnished a defective plank upon which he stood while he was working, by the breaking of which he was injured. "Would it be contended that there is any employer who would not understand clearly that the provisions of this statute would impose a penalty upon him if he furnished an employe a defective plank upon which to stand while painting a house from a scaffolding? In this connection it is important to note that the rule is well settled that one attacking the validity of a statute must show that it affects him injuriously. Jeffrey Mfg. Co. v. Blagg, 235 U. S., 571, 576; Plymouth Coal Co. v. Commomoealth of Penna., 232 U. S., 531, 544; Huff v. Bidwell, 180 Fed. Rep., 374, and 12 Corpus Juris, 762.

When plaintiff alleges in his petition that the furnishing of that defective plank was the proximate cause of his injury, do the statute and the allegation leave the defendant in any state of uncertainty, or do they invite the court and jury to begin an excursion into uncertain or doubtful fields?

It is said that this statute is merely declaratory of the requirement of the common law. That is true, and it is equally true that if there had been no Workmen’s Compensation Law, and no statute, the plaintiff would have been entitled to maintain his action on the same allegation that defendant had knowingly and negligently furnished a defective plank upon which it required its employes to stand. Precisely the same testimony would have been introduced. No one would have contended that the legal obligations asserted against the defendant in that case were so uncertain and indefinite as not to be comprehended within the humane obligations and requirements of the common law. But the legislature has seen fit to embody the same duty and the same obligation and requirement in the statutory law of the state. In other words, the legislature has made it a lawful requirement, and the legal liability flows out of this statute, although it is a penal statute.

An observation that is very pertinent here was made by Judge Taft in Narramore v. C., C., C. & St. L. Ry. Co., 96 Fed. Rep., 298, which concerned an Ohio statute for the protection of employes. It was a penal statute and did not expressly give a cause of action in favor of an injured person. Judge Taft said, at page 300: “It was passed in pursuance of the police power of the state, and it expressly provided, as one mode of enforcing it, for a criminal prosecution of the delinquent companies. The expression of one mode of enforcing it did not exclude the operation of another, and in many respects moire efficacious, means of compelling compliance with its terms, to-wit, the right of civil action against a delinquent railway company by one of the class sought to be protected by the statute for injury caused by a failure to comply,with its requirements.’'

In Leis v. Cleveland Ry. Co., 101 Ohio St., 162, it was held that “An ordinance which requires a motorman or other person having charge of a street car to exercise all possible care and vigilance on approaching any other ear that has stopped for the purpose of receiving or letting off passengers, or which requires that any car approaching another car which has been stopped for any purpose, or approaching a curve, shall do so with the greatest care and be under complete control of the person operating the same, is a reasonable and valid ordinance.”

In the opinion in that case, upholding the ordinance, at page 171, it is said concerning the section involved in the case now before us: “Section 12593, General Code, provides that employers shall be fined if they provide unsuitable and improper scaffolding, hoists, stays, ladders, or other mechanical contrivances which will not give proper protection to the life or limb of a person so employed. This statute was enforced by the United States courts of this district, McWeeney v. Standard Boiler & Plate Co., 210 Fed. Rep., 507, which case was later affirmed by the United States court of appeals.”

It is further said in the opinion, at page 171: “No motorman or conductor can read either of the ordinances without a perfectly clear understanding of what is expected of him. The company which employs him is entitled to go to the jury and prove every one of the things done by him at the time of the injury complained of. It is permitted to show that he exercised every possible care and vigilance under the circumstances of the case.”

So in this case, as already stated, the company could not be in doubt or uncertain as to the exact duty required of it by the statute concerning any particular thing done in connection with the scaffolding, and the defendant was entitled on the trial of the case to show that it did not knowingly or negligently furnish the plank, the breaking of which injured the plaintiff.

In State v. Schaeffer, 96 Ohio St., 215, which is a criminal case, Section 12603, General Code, prohibiting the operation of a motor vehicle “at a speed greater than is reasonable or proper, having regard for width, traffic, use and the general and usual rules of such road or highway, or so as to endanger the property, life or limb of any plerson” was upheld against similar attacks.

In Neave Building Co. v. Roudebush, Admr., 96 Ohio St., 40, an ordinance of the city of Cincinnati requiring owners of buildings to equip windows above the second-story with a suitable device which would permit the cleaning of the exterior of such windows without endangering life and limb was enforced.

It is a matter of common knowledge that scaffolding used in painting houses and buildings is of a temporary and changing character. It is constantly being moved. Its erection is done by the employes themselves, as a general thing, and it is difficult to see how a statute concerning such a thing could be more definite than this statute is., and yet meet the requirements of the varying circumstances and conditions surrounding a structure of this nature.

I am convinced that the holding in this case will be very apt to operate as an invitation to courts and counsel to search for technicalities and make overnice distinctions in the language of statutes touching this and kindred subjects in support of their contention that the provisions of a particular statute do not with sufficient definiteness and certainty meet the particular circumstances of the particular case. No such thing was intended by the framers of Section 35, Article II of the Constitution, and no such meaning was intended to be given to the words “lawful requirement. ’ They did intend that rights of action arising out of negligence or want of ordinary care under the rules of the common law should be taken away as against employers who were compelled to contribute to the state fund. But they intended that when the legislature was not content to allow such a duty to remain a mere common-law duty, but saw fit to embody the requirement within the statutory law of the state by special statute, with requirements touching the specific subject, that fact itself' constituted it a lawful requirement, and if such a statute does not violate the requirements of reasonable certainty and definiteness and does not otherwise violate the requirements of valid and constitutional enactments it must be enforced.

The retention of liability by the employer for his wilful acts and for his failure to comply with lawful requirements made for the protection of employes is a vital element in the whole conception and scheme of the Workmen’s Compensation Law.

It is of equal importance with the taking away of liability for ordinary common-law negligence in return for the burdens imposed on the employer.

If rights of action for such wilful acts and such failure were also taken away the salutary warning and influence which leads heedless men to safeguard their employes would, be removed. Thereby the number of injuries would be increased, the strength and integrity of the insurance fund would be weakened, and the humane object of reducing injuries and ' safeguarding life and limb would be largely defeated.

Now, in this ca.se the issues of fact as to the negligence of the defendant, which were made by the pleadings, related to the plank upon which the plaintiff stood. The plaintiff claimed that the plank was defective and that this defective plank was knowingly or negligently furnished by the defendant. By the breaking of this plank the plaintiff was injured. Upon these issues the burden rested upon the plaintiff.

. The undisputed testimony showed that the plaintiff himself was present and participated in the selection of the plank and helped to construct the scaffold. The testimony on his. behalf, was tQ the effect that the plank looked good and sound and contained no defects which were apparent.. .

The case has been decided by this court solely oh the law question which I have discussed. Counsel for defendant in error contend that there was no evidence tending to show that the defendant company knowingly or negligently furnished the. plank or erected the scaffold upon which the plaintiff stood, and that, therefore, the trial court should have sustained its motion to direct the jury to return a verdict for the defendant independently of the legal question discussed. The court of appeals in the performance of its duty to weigh the evidence did not find that the verdict was against the weight of the evidence.

In the view I take of, the scaffolding statute, as above set forth, it follows that the court of appeals should pass upon the weight of the evidence. In my opinion the cause should now be remanded to the court of appeals with instructions to consider and pass upon the weight of the evidence in the case.

Wanamaker, J.,

dissenting from original opinion:

Lest We Forget. In 1912 the people of Ohio by an overwhelming vote adopted a new Magna Charta, a new Bill of Bights, by which it was clearly sought to accomplish two radical constitutional changes in the powers and policies of the state government:

First: The enlargement and enforcement of the people’s powers in their government.

Second: The enlargement and enforcement of human rights in their government.

Ohio’s old Bill of Rights contains this significant language: ‘ ‘ Government is instituted for their [the people’s] equal protection cmd benefit•”

It had long been obvious that that “protection and benefit” had not been adequate or effectual in protecting the great army of industrial workers of the state.

The then status of labor disclosed serious mischiefs that called loudly for sane and reasonable reforms. These mischiefs may be grouped under three headings:

(a) An appalling number of industrial accidents, resulting in the death of thousands and the disability, partial or complete, of a still larger number of working men, working women and working children, causing impairment of the state’s man power and increase of dependency, both harmful not only to the individual but to the body politic.

(&)• In dealing with the large number of deaths and injuries resulting from the negligence of the employer, there had grown up a system of technical rules and ancient precedents of feudal days, ninety-nine per cent, judge-made, and applied under the names of “assumed risk,” “negligence of fellow servant,” “contributory negligence,” etc., all with the effect that the employe in many cases was denied his just relief and compensation for the negligence of his employer, because of said rules and precedents.

(c) A large number of such deaths and injuries were incidental to the natural and inherent dangers of the employment and not the result of any negligence of the employer, but under the policy then prevailing the whole loss and burden fell upon the employe, who was generally the least able to bear it.

The old order of dealing with personal injuries and deaths in the industrial life of the state, caused negligently and otherwise, had become a byword and a shame, for which our courts were largely responsible, and of all the proposals before the constitutional convention none more obviously and unanimously than this demonstrated the sane and settled purpose of that convention to tear up root and branch the old order and substitute a new order by constitutional legislation through proposals 34 and 35 of the new constitutional amendments.

Accordingly the convention, as the cornerstone of the new order and policy of 1912, proposed the following amendment, which was overwhelmingly adopted by the people: “Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employes; and no other provision of the constitution shall impair or limit this power.”

Clearly the sovereign people hereby intended to put human conservation at the very foundation of its governmental policy.

It may not be amiss in passing to observe that the constitutional convention that framed the new conservation policy, known as Section 34, Article II, was addressed by that great apostle of conservation, Theodore Roosevelt, and this proposal is a most admirable reflection of the Roosevelt view of human conservation as the paramount purpose of all government.

■ Before beginning an examination and analysis of Section 34 it will be interesting to observe the viewpoint of the convention in proposing it and the viewpoint of the people in overwhelmingly adopting it. This section was labeled and headed on the ballot “Welfare of Employes.” It nowhere mentions the employer. The employes of the state and their representatives in the convention wrote this proposal. Many of the employers at that time, under a mistaken view which many have subsequently changed, bitterly fought the proposal both when it was before the convention and afterwards at the election.. But the employes won at the ballot box, and the conservation policy of Ohio, so far as it could be formulated and fixed by the constitution of the state, was to receive a new life by reason of the new powers granted the general assembly.

The primal and paramount importance given by the convention to this doctrine of conservation appears emphatically from the last clause of said proposal, which reads, “and no other provision of the constitution shall impair or limit this power.” '

It would seem apparent that the convention and the people who adopted its proposal in this, behalf were determined to place human life and limb, health and safety, above money and all other interests and considerations.

I come now to a consideration of the meaning and scope of said Section 34 and subsequent Section 35.

• . In considering the meaning of these sections it may not be amiss to recall some of the old-time doctrines of the old-time judges. Judge Rannev, shortly after the adoption of the Constitution of 3 851, used this appropriate language in State, ex rel. Evans, v. Dudley, 1 Ohio St., 437, at page 442:

“We further agree with the counsel for the-relator, that the constitution must receive the same construction since its ratification by the people that it would have received when it passed from the hands of the convention.”

Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. (22 U.S.), 1, at page 188, said:

“As men, whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said

The first general assembly convening after' the adoption of this constitutional amendment, in 1913, proceeded to exercise this new power to develop and promote the new policy under said new amendment. Among other things it did was to borrow-from Wisconsin several sections of her conservation statutes for the protection of the working people. The Wisconsin law, Section 2394-48, reads: “Every employer shall furnish employment which shall be safe for the employes therein and shall furnish a place of employment which shall be safe for employes therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and place of employment safe, and shall do every other thing reasonably necessary to protect the life, health, saféty and welfare of such employes and frequenters.”

This section was taken bodily and verbatim from Wisconsin, save and except the addition of the language, “follow and obey orders and prescribe hours of labor,” added after the words, “methods and processes.” That statute is now knovta. in the Ohio General Code as Section 871-15.

In connection therewith the general assembly of Ohio proceeded to define the word “safe,” as used in said section, which appears in Section 871-13, subdivision 11, as follows: “The terms ‘safe,’ and ‘safety,’ as applied to any employment or a place of employment shall mean such freedom from danger to the Ufe, health, safety or welfare of employes or frequenters a>s the nature of the employment will reasonably permit, including requirements as to the hours of labor with relation to the health and welfare of employes.” This statute also was at the same time borrowed literally from Wisconsin.

When the state of Ohio adopted the Wisconsin statutes as the Ohio statutes touching these matters, it also adopted in legal effect, by all the decisions of both state and federal courts, Wisconsin’s judicial construction by its supreme court of these statutes so bodily borrowed. The Wisconsin supreme court’s view of the Wisconsin statutes, adopted as the Ohio statutes, is best expressed in Besnys v. Herman Zohrlaut Leather Co., 157 Wis., 203. The syllabus so far as pertinent reads: “1. The duty imposed upon an employer by sec. 1636j and secs. 2394-41 to 2394-71, Stats. 1911, is that the place and the method of carrying on the business in which he is engaged shall be as safe as the nature thereof will reasonably permit as regards safety devices and safeguards, reasonably adequate methods and processes, and any other thing reasonably necessary to protect the life, health, safety, and welfare of the employee

This Wisconsin ease was shortly followed by another, Sadowski, Admx., v. Thomas Furnace Co., found in the same volume, at page 443. The syllabus, so far as pertinent, reads): “1. Secs. 2394-48, 2394-49, Stats., are a part of a new system relative to industrial accidents, by which it was intended to substitute, in lieu of the ordinary rule requiring the master to come up to the standard of reasonable safety as to working place and conditions', the absolute duty to make the employment and place of employment as safe as the nature of the employment will reasonably permit.”

The Ohio human conservation policy of 1912 is bottomed on the 34th section of the legislative article of the constitution, the statutes and judicial constructions thereof adopted from Wisconsin pursuant to such policy, and their general legal effect upon all other statutes in pari materia, coupled with the fact that the constitutional convention and the sovereign people made this section of the constitution paramount to all others. It would seem self-evident that not only legislative acts but judicial construction as well should in no wise “impair,” “limit” or encroach upon the broad, comprehensive and humane provisions before quoted.

We come now to Section 35, a companion or auxiliary section to 34. Section 35, so far as pertinent, reads:

“For the purpose of- providing compensation. to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen’s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, * . * * and taking away any or all rights of action or defenses from employes and employers; but no right of action shall be ■ taken away from cmy employe when the injury, disease or death arises from failure of the employer to comply with cmy, lawful requirement for the protection of the lives, health and safety of employes.”

The constitutional convention evidently recognized the obvious fact that even when the great powers granted in the preceding Section 34 were fully exhausted by the general assembly in safeguarding life, limb, and health, injuries and death must still inevitably result in the course of employment,— some negligently, some otherwise. Where the fullest conservation had failed to prevent the injury, then the next best thing that could be done would be to supply partial compensation, the maximum under the existing law being for death a total of about $5,000, and for disability from injuries about $3,750.

The constitutional convention obviously understood that the practical enforcement of the lawful requirements provided for in Section 34 would in large measure rest upon the good faith, loyalty, care and diligence of the employer, and provided in Section 35 that before he should be immune from liability beyond the compensation fund, before he should be relieved of the liability of an action at law, he must faithfully comply- with all lawful requirements. If he did so, agreeable to the constitution and the statutes, he would, have a good defense to any such action by the employe. If he was negligent in that behalf, either ignoring or falling short of his duty as to such compliance, the constitution and the law said he should be liable.

Great apprehension has been expressed for fear that any other interpretation of Section 35 than that announced in the majority opinion in this case would undermine the compensation law. This I deny.. I do know, however, that this interpretation absolutely submarines the conservation law, which the constitution regarded as the paramount of the two. .This narrowing down of the welfare of the employe, this limitation upon the liability of the employer, will go on until it creates such dissatisfaction, with our courts and our laws that the working army of the state of Ohio will bring about a more substantial and radical amendment to the Workmen’s Compensation Law.

If you want to retain the workmen’s confidence in partial compensation, you must first give him the full measure of Constitutional conservation.

Where is the stumbling block over which the division amongst the members of this court really arises? It is these three words, “any lawful requirement.” Is there anything uncertain, indefinite or ambiguous about the word “requirement?” Is it not a word in common ordinary use among laymen as well as lawyers, in business as well as upon the bench? Surely so. Is this word “requirement,” when preceded by the word “lawful,” any the more indefinite, uncertain or ambiguous ? Are these two words “lawful requirement,” preceded by the adjective “any,” so confused and ambiguous as to be uncertain in meaning? My understanding is that when a word is used so broadly and comprehensively as to embrace a whole class, it contributes to definiteness and certainty as to its meaning and scope, more so than if it only applied to a part of a class, the dividing line being irregular, a sort of twilight zone difficult of survey.

The real grievance here, bared to the bone, is not that it is impossible to determine what the constitutional provision means, but rather, upon the contrary, that it means so much as to impose a very heavy and unusual liability upon the employer to safeguard the safety of his employe.

Now, taking Sections 34 and 35, reading them and analyzing them together, it will be readily seen that the language “any lawful requirement,” in Section 35, relates directly to the language in the preceding Section 34, as follows:

“Laws may be passed * * * providing for the comfort, health, safety, and general welfare of all employes.”

Any such statute enacted pursuant to that power must of necessity be included within “any lawful requirement.” The legislature makes the laws, not this court; but in this case, the order is reversed, the legislature has the first word, and this court has the last word, squarely in conflict. If a statutory requirement is not a lawful requirement I don’t know what is.

Again, it clearly appears that if the statutory requirement under Section 34 be consistent with that section, it shall not be held to be in conflict with any other provision of the constitution, because Section 34 closes with these words:

“No other provision of the constitution shall impair or limit this power.”

That is, the power under Section 34.

Let us apply the simple, hard, common sense of Chief Justice Marshall to these three words “any lawful requirement.”

Rule 1. “The enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.”

Rule 2. The intention of the legislature is to be collected from the words they employ; where there is no ambiguity in the words, there is no room for construction.

The obvious fallacy on which this judgment is founded is this, that the compensation fund and the terms and conditions of the statute providing for its administration and distribution are unduly exaggerated, so as to place compensation before conservation, contrary to and in violation of Section 34.

The legal effect of such a position is to take out of Section 34 the closing words dealing with full conservation, which declare that “no other provision of the constitution shall impair or limit this' power,” and write them into Section 35, which deals primarily with partial compensation.

I do not so understand my duty “to support the constitution.”

The majority opinion in. this case entirely ignores the entire substructure of our' laws, under Sections 34 and 35, which is practical and'effectual conservation. This is like putting up a building without a proper foundation. ' '

The question decided in this case is identical in principle with the question decided in American Woodenware Mfg. Co. v. Schorling, 96 Ohio St., 305. That is a recent case, decided in 1917, and involved only the same single question involved in this casa Following precedent, it would have been quite sufficient for this court to have affirmed this case upon the authority of the opinion in the Schorling case. This court’s refusal so to do constitutes an implied admission that the reasons given in the Schorling case are not adequate, not persuasive, and fail, to legally and logically support the judgment. Accordingly the majority have attempted to furnish a concrete reinforcement for the doctrine announced in the Schorling case, by preparing another opinion upon the same identical question.

I maintain that the attempted reinforcement has utterly failed, and the last state of the ease is worse than the first.

I shall now examine the cases which are relied upon for the concrete reinforcement. They are two federal cases, United States v. Reese, 92 U. S., 214, and United States v. L. Cohen Grocery Co., 255 U. S., 81, involving the Lever Act, decided by the United States supreme court February 28, 1921.

These are both criminal cases. The case at bar is a civil case. It requires no master mind in the law to recognize the fact that the rules of substantive law, as well as of adjective.law, and the rules of construction applicable to both, are entirely different in crimina! and civil cases. It is impossible,. therefore, to find any analogy in the strict technical rides that apply in construing oriminal statutes to fit the liberal construction applicable in civil remedial statutes.

This unfortunate reference to the Reese case in the. majority opinion is only emphasized when we come to examine the case itself. Congress passed an act, in the exercise of its powers under the 15th Amendment, making certain acts or conduct as. to voting an offense punishable by fine or imprisonment. Of that act, the court, in the Reese case, says at page 219:

“This is a penal statute, and must be construed strictly; * * * If, taking the. whole statute together, it is apparent that it was not the intention of Congress thus to limit the operation of the act, we cannot give' it that effect.”

That is, what congress has not limited, the court under the guise of construction could not- limit. What was the limitation that the 15th Amendment to the Constitution required? The court answers that question as follows:

“The Fifteenth Amendment does not confer the right of suffrage upon any one. It prevents the States, or the United States, however, from giving preference, in this particular, to one citizen of the United States over another on account of race, color, or previous condition of servitude. * * * It has not been contended, nor can it be, that the amendment confers authority to impose penalties for every wrongful refusal to receive the vote of a qualified elector at State elections. It is only when the wrongful refusal at such an election is because of race, color, or previous condition of servitude, that Congress can interfere, and provide for its punishment. * * * We are, therefore, directly called upon to decide whether a penal statute enacted by Congress,, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that which Congress may rightfully prohibit and punish.”

And the court held soundly and wisely that what the legislature had failed to limit in accordance with the constitutional limit, the court had no right to limit, and that therefore the act exceeded the constitutional authority to that extent.

In both Reese case and Cohen case the judgments are based on the constitutional requirement as to criminal liability. The fundamental doctrine as to such liability is put into the constitutional provision, to the effect that the accused is entitled to know “the nature and cause of the accusation” against him, and every criminal statute must by its very nature and terms conform in spirit and substance to this limitation put into the constitution.

But this rule as to criminal liability created by statute is not and never has been the rule as to civil liability created by statute. There is no such constitutional restraint or limitation as to civil liability, either at common law, constitutional law, or statutory law made pursuant thereto.

The doctrine announced in the Reese and Cohen cases, growing out of the constitutional limitation upon all statutes creating a criminal liability, is only instructive and illuminating in the case at bar because these two classes of liability are so inherently, essentially and radically different.

It would seem to have been the part of candor and wisdom for this court to have sought out a civil case in damages for negligence to furnish some analogy for the case at bar as to a “lawful requirement” instead of the criminal cases referred to in their opinion, which criminal cases are naturally and necessarily limited by the constitutional provision that the accused is entitled to know “the nature and cause of the accusation.”

As before observed, there is no such limitation as to civil liability. The supreme court of the United States, however, has passed upon a statute very similar in its general terms to the scaffolding statute, in Miller v. Stahl, 239 U. S., 426, decided in 1915.

In that case there was under review a statute of the state of Nebraska pertaining to the liability of innkeepers. The statute, Section 3104 of the Nebraska Revised Statutes, included among other things this language: “It shall be the duty of every proprietor, or keeper of such hotel * * * in case of fire therein to give notice of same to all guests and inmates thereof at once and to do all in their power to save such guests and inmates.”

The petition was based particularly upon the last section “all in their power.” It was urged that the statute was too indefinite and uncertain to constitute a liability. Justice McKenna, speaking for the court, at page 432, says:

• ‘ ‘ The command of the statute is that in case of a fire the keepers of hotels must give' ‘notice of the same to all guests and inmates thereof at once, and to do all in their power to’ save such guests and inmates.’ Could the statute exact less? It is the dictate of humanity, and gets nothing from its expression as a legal obligation except a penalty for its violation, and the facts of the case reject any charge that it was .enforced to the extent of risk of the life of anybody or to the injury of anybody. ’ ’

Justice McKenna continues:

“Plaintiff in error contends further that the statute ‘is lacking in due process of law’ because ‘it fails to prescribe any fixed rule.of conduct.’ The argument is that the requirement ‘to do all in one’s power’ fails to inform a man of ordinary intelligence what he must or must not do under given circumstances.
“Rules of conduct must necessarily be expressed in general terms and depend for their application upon circumstances, and circumstances vary. It may be true, as counsel says, that, ‘men are differently constituted,’ some being ‘abject cowards, and few only are real heroes;’ that the brains of some people work ‘ rapidly and normally in the face of danger while other people lose all control over their actions. ’ It is manifest that rules could not be prescribed to meet these varying qualities. Yet all must be brought to judgment. And what better test could be devised than the doing of ‘all in one’s power’ as determined by the circumstances?
“The case falls, therefore, under the rule of Nash v. United States, 229 U. S., 373, and not under the rule of International Harvester Co. v. Missouri, 234 U. S., 199.”

Referring to the Nash case, supra, which by the way was a criminal prosecution, we have, in the language of Mr. Justice Holmes, page 376, the following : ■

“And thereupon it is said that the crime thus defined by the statute contains in its definition an element of degree as to which estimates may differ, with the result that a man might find himself in prison because his honest judgment did not anticipate that of a jury of less competent men. The kindred proposition that ‘the criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness and certainty,’ is cited from the late Mr. Justice Brewer sitting in the Circuit Court. Tozer v. United States, 52 Fed. Rep., 917, 919.
“But apart from the common law as to restraint of trade thus taken up by the statute the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death. ‘An act causing death may be murder, manslaughter, or misadventure according to the degree of danger attending it’ by common experience in the circumstances known to the actor. ‘The very meaning of the fiction of implied malice in such cases at common law was, that a man might have to answer with his life for consequences which he neither intended nor foresaw.’ Commonwealth v. Pierce, 138 Massachusetts, 165, 178. Common wealth v. Chance, 174 Massachusetts, 245, 252. ‘The criterion in such cases is to examine whether common social duty would, under the circumstances, have suggested a more circumspect conduct!. ’ 1 East P. C., 262. If a man should kill another by driving an automobile furiously into a crowd he might be convicted of murder however little he expected the result. * * * If he did no more than drive negligently through a street he might get off with manslaughter or less. * * * And in the last case he might be held although he himself thought that he was acting as a prudent man should. ’ ’

It would seem that the doctrine in these two cases by the supreme court of the United States is a complete answer to the judgment of this court, especially the objection that juries might differ in their verdicts, advanced as a reason for nullifying this statute. Juries differ as to ordinary care. Why shouldn’t they differ as to the highest practicable care?

But we must look to the syllabus of the present case for the doctrine which furnishes the dynamite, not only for the destruction of this statute, but for the destruction of scores of other similar statutes. The syllabus reads:

“1. The term ‘lawful requirement,’ as used in Section 35, Article II of the Constitution, and in Section 1465-76, General Code, comprehends such lawful, specific and definite requirements or standard of conduct as would advise an employer of his legal obligations.”
This syllabus in itself is adroitly drawn. It would be direct and clear if you put the word “only” before the word “comprehends.” As it is, no one can literally find fault with it. It is true, but not the whole truth. Of course the words “any lawful requirement,” as used in the constitution, include “specific and definite requirements,” but they include “general” requirements as well. The words specific and definite do not limit the constitutional grant, or at least did not limit it until this court spoke in this case and found a new way of amending the Constitution of the State of Ohio.

That the word “only” is implied in that paragraph of the syllabus will clearly appear from the next proposition of the syllabus:

“2. Section 12593, General Code, providing that employers, who knowingly or negligently furnish or erect unsuitable or improper scaffolding, shall be punished by fine or imprisonment, or both, is indefinite and general in its requirements. It merely prescribes a course of conduct recognizable at common law. Its provisions do not comprise ‘lawful requirement,’ within the meaning of the constitutional or statutory provisions referred to.”

"Why not? Simply because this court has said so. Not because the constitution has said so; nor because the statute says so. This court has simply usurped the business of law-making and Constitution-making.

As made by the sovereign people of the state of Ohio the constitutional provision particularly in question in Section 35 reads as follows:

“But no right of action shall be taken away from any employe when the injury * * * arises from failure of the employer to comply with amy lawful requirement for the protection of the lives, health and safety of employes.”

The new constitution as made by this court by judicial decree now reads:

“But no right of action shall be taken away from any employe when the injury * * * arises from failure of the employer to comply with any specific and definite lawful requirement for the protection of the lives, health and safety of employes, sufficient Ho advise an employer of his legal obligations.’ ”
The italicized words, specific and definite, constitute a new amendment to the people’s constitution, herein made by the supreme court of Ohio.
What the constitution, in the use of the words “any lawful” requirement, says shall be unlimited this court has said shall be limited to “specific and definite” lawful requirements.
It is the most glaring illustration of usurpation of judicial power that I have ever heard of. Judge-made law has been under condemnation for many years. What shall be said of judge-made constitutions under the mask of interpretation, where “there is nothing to interpret, because nothing doubtful?”

The scaffolding statute, Section 12593, referred to in the syllabus, supra, is either a valid statutory requirement, or a valid “lawful requirement,” or it is invalid. There is no middle ground. A man is either dead or alive; there is no middle state so far as human knowledge goes. There is but one inference from reading these two paragraphs, and that is, this court has nullified the scaffolding statute that has been in operation in this state for more than a quarter of a century, upon the ground that it is too ‘“indefinite and uncertain.”

Again the court says, sufficient “to advise an employer of his legal obligations.” Here again is language written into the constitution by the supreme court of Ohio, qualifying this granted right of action given by the sovereign people of the state of Ohio to the employe for the purpose of enforcing the conservation doctrine as against his employer, and as a penalty upon that employer when he fails to take the proper degree of care to comply with a lawful requirement for the protection of life, health and safety of the employe.

Does any lawyer or layman for a moment believe that under the new order declared by the new Constitution of 1912 the legal obligation of the employer to provide for the safety of the employe was to be lessened or lowered from what it had been under the old order ? It is unbelievable.

What was the measure of care “required” under the old order? “Ordinary care,” or the care of an ordinarily prudent person under the circumstances of the particular case.

Was this a ‘ ‘ specific” and ‘ ‘definite’’ requirement? Was this sufficient to “advise an employer of his legal obligations?”

For more than a century it was so held under the common law of both England and America. It was a civil liability cast upon the employer.

Then the new order, under Section 34 of the Constitution, and Section 35 of the Constitution, and the statutes pursuant thereto, provided expressly in Section 871-13, General Code, heretofore referred to, that “The terms ‘safe,’ and ‘safety,’ as applied to any employment or a place of employment shall mean such freedom from danger to the life, health, safety or welfare of employes or frequenters as the nature of the employment will reasonably permit

The legislature merely provided requirements consistent with the new order under Section 34. It raised the standard from “ordinary” care under the circumstances of the case to the “highest practicable care,” or, in the exact language of the statute, “such freedom from danger * * * as the nature of the employment will reasonably permit.”

In raising the standard of care required of the employer from “ordinary” care to the “highest practicable care, ’ how can it be held that the latter is more indefinite and uncertain as to “advising the employer of his legal obligations?”

It requires a credulity, a sophistry, and a juggling with words beyond all reason to accept ordinary care as a legal requirement under the common law, and reject highest practicable care under a statute enacted under the new order, because not providing a valid legal requirement.

Clearly, ordinary care is more indefinite and more uncertain than the highest practicable care. If the latter is nullified because of uncertainty and indefiniteness, the former must also be nullified for uncertainty and indefiniteness, and the employe is absolutely without any protection so far as the duty of the employer is concerned. We have gone backward to barbarism. We have turned from the enlightened 20th-century view of the relations of master and servant, and employer and employe, back to the dark ages, when it was master and slave.

A careful reading of these two paragraphs of the syllabus discloses the unmistakable fact that in construing Sections 34 and 35 of the Constitution this court places the employer in the foreground as of the first consideration, whereas, both in the convention and in the provisions of these proposals themselves, the people placed the employe in the foreground and as the first to be considered in the interpretation and application of these two amendments.

It does depend somewhat upon the point of view, doesn’t it!

But this is not the first case of this character decided by this court touching statutes in general terms. In State v. Schaeffer, 96 Ohio St., 215, in the same volume in which the Schorlmg case, supra, is reported, proposition five of the syllabus reads:

“Section 12603, General Code, prohibiting the operation of a motor vehicle ‘ at a speed greater than is reasonable or proper, having regard for width, traffic, use and the general and usual rules of such road or highway, or so as to endanger the property, life or limb of any person’ is a valid statute.”

The following judges concurred in that syllabus: Nichols, Newman, Jones, Matthias and Johnson.

And mark that this prosecution was for manslaughter, which was based on the commission of a criminal act under the criminal statute. This court upholds that statute, though expressed in terms no less general than this statute. The Schaeffer case, supra, was decided in 1917. I am unable either with telescope or microscope, logical, chemical or legal analysis, to find any distinction of substance between the generality of the terms in the scaffolding statute, Section 12593, and the generality of the terms in the automobile section of the Schaeffer case, If a criminal statute be a constitutional statute, certainly every similar civil statute in terms not more indefinite must likewise be constitutional, so far as sufficient definiteness and certainty are concerned. If it be a constitutional statute, its provision is a constitutional lawful requirement, and no legal legerdemain or judicial jugglery can make it otherwise.

In the court’s opinion in this case, no practical, workable rule is laid down touching the indefiniteness or uncertainty necessary to void a statute, to nullify it, and no case is cited announcing any such cloctrine.

The difficulty in this case arises from the fact that the court is confusing general comprehensive language broad enough to include “any lawful requirement” with language so uncertain and indefinite that its meaning cannot be ascertained by applying ordinary sense to ordinary words by the usual rules of construction.

Of course if applying all the recognized rules of construction the court is unable to determine the meaning of the statute so as to make it practically enforceable, such statute must fail simply because its meaning cannot be ascertained upon the application of these generally recognized rules and principles. Numerous Ohio cases have dealt with this question. In Lessee of Cochran’s Heirs v. Loring 17 Ohio, 409, the syllabus reads:

“Though a law is imperfect in its details, it is not void, unless it is so imperfect as to render it impossible to execute it.”

Surely there is nothing imperfect about the constitutional provision “any lawful requirement.” What this court really complains about is that it is too perfect, in that it is too broad, too inclusive,, too comprehensive, and places too much liability upon the employer; gives the employe too much protection.

Judge Peter Hitchcock in the Cochran case, supra, says at page 427:

‘ ‘ The imperfection of a law will not render it void, unless it is so imperfect as to render it utterly impossible to execute it.”

In State, ex rel. Hibbs, v. Board of County Commissioners of Franklin County, 35 Ohio St., 458, it is held in the syllabus;

“An act will not be declared void for uncertainty, if by resort to the recognized aids in the construction of statutes, it is possible to ascertain its meaning.”

In Gordon v. State, 46 Ohio St., 607, the Cochran case, supra, is cited with approval.

In a much later case, Beverstock, a Taxpayer, v. Board of Education, 75 Ohio St., 144, Judge Price in his opinion uses this language at page 149:

“It is urged for plaintiff in error that its language [the statute] is vague and uncertain, and so much so, that it is not susceptible of reasonable interpretation, * * * That is the equivalent of asserting that that part of the section is void for uncertainty.
‘ ‘ This view does not meet with our approval. It is true that the provision is imperfectly, and even bunglingly drawn, and exhibits negligence and perhaps ignorance in its phraseology, but these marks should not defeat the operation of the statute, if we can, by the fair use of its language, arrive at the true legislative purpose. * * * It is the duty of the court when called upon to deal with the legislation of a coordinate department of our government, to so construe a statute, if possible, as to give it a sensible effect and make it of binding force. A statute can not be held void for uncertainty, if any reasonable and practical construction can be given to its language. * * * It is the bounden duty of courts to endeavor by every rule of construction to ascertain the meaning of,- and give full force and effect to, every enactment of the General Assembly not obnoxious to constitutional prohibition. This proposition is advanced and upheld in Pennsylvania Co. v. State, 142 Ind., 428-434; St. Louis Dalles Improvement Co. v. Nelson Lumber Co., 43 Minn., 130-132; Lewis’ Sutherland Statutory Construction, Volume I, Section 86.”

Judge Price also cites with approval the Cochran case, supra, State, ex rel., v. Commissioners, supra, and Gordon v. State, supra. See also 26 Am. & Eng. Ency. Law (2 ed.), 656.

These eases are in no wise referred to in the majority opinion in this case.

Surely there is nothing uncertain, nothing ambiguous about the language “any lawful requirement,” where the statutory obligation is imposed upon the employer. If the statute is constitutional, the requirement is constitutional, and creates an obligation upon the employer upon which, if he fails. the employe may predicate his action against him on the ground of negligence, granted and guaranteed by the constitution itself.

Consequences on This Judgment. The principle of causation is inherent in all natural law, and is intended to inhere in all civil law. Like begets like. Cause and effect are naturally and necessarily of like warp and woof. A just law will not be followed generally by unjust effects. A just judgment will not be followed generally by unjust consequences. What are the consequences of this judgment?

1. This court has usurped the power to amend the Constitution of Ohio, especially Section 35, Article II, under the mask of construction, reading into the constitution “specific and definite [enough] to advise an employer of his legal obligations.”

2. This court has placed Section 35, Article II, over and above Section 34, Article II, notwithstanding Section 34, Article II, concludes with these words, “and no other provision of the constitution shall impair or limit this power,” that is, the power of conservation by legislation.

3. This court has thus made compensation paramount to conservation, when by all the laws of nature, justice, and the clear intent of the constitutional provision, full conservation is placed paramount to what must of necessity be only partial compensation.

4. This court has violated almost every known rule of construction in arriving at this judgment. It has injected uncertainty of meaning into certainty nf meaning. It has said that the term “any lawful requirement,” which every layman understands to at least include a valid statute, is not plain, but is so uncertain and indefinite that it must be construed by a court, and, after giving the constitution and the statute a hypodermic injection of doubt, the court proceeds, under the mask of construction, to place a limitation upon a grant of power that is unlimited and paramount.

5. This court has construed two sections, 34 and 35, of Article II of the Constitution, from the viewpoint of the employer, when they were made and adopted from the viewpoint and interest of the employe.

6. This court under pretext of safeguarding the compensation law of Ohio has so undermined the conservation law of Ohio that it has put both provisions in a hopeless state of confusion, and bred incalculable dissatisfaction among the working men and working women of Ohio, that will necessarily add fuel to the present unhappy state.

7. This court has done by mere dictum what it cannot accomplish by demonstration. It is an instance of “thus saith the court.” I hold that it should be “thus saith the constitution,” the constitution as it is, in plain phrase of the people, who said what they meant, and meant what they said.

8. This court unfortunately reflects the legal sentiment existing in the convention at the time of the adoption of these progressive amendments. I regret exceedingly that the representatives of the bar in the constitutional convention were against the. progressive amendments of that constitution, but that does not justify the profession in continuing to oppose these amendments.

9. This court by this decision holds the most reactionary and at the same time revolutionary doctrine advanced in any decision of the last ten years. It has practically nullified all conservation statutes, which must of necessity by their very nature be made in general terms. You cannot deal specifically with all the varied machinery, appliances, and places of employment. General words alone, describing the degree of safety, are all that the situation and circumstances will permit. Yet, all such statutes are practically nullified by this decision. This court has held, and still holds, that the civil liability of ordinary care is sufficiently definite and certain to impose a liability upon the employer, which has been the rule of the common law in England and America from time immemorial, but now holds that when the statutes of Ohio, pursuant to the new, constitution, raise that degree of care to the extent of the language of the statutes of 1913, to the “highest practicable care,” the latter measure of duty is too indefinite, too uncertain, to constitute a lawful requirement.

Wanamaker, J.,

dissenting after rehearing. Were the majority judges, Jones, Matthias, Robinson and Hough, content to rest the final judgment of this case upon the opinion previously prepared and announced by them, I should be equally content to rest the dissent upon the former state of the record. The reargument has only reinforced my convictions.

Changes made in the majority opinion may be classified as follows:

1. Old matter subtracted.
2. New matter added.

Iii the former opinion of the majority several decisions by the supreme court of the United States were cited, and the reasons in support of them, whereby it was claimed that the judgment in the present case was justified. I undertook to answer those authorities, and to show in my opinion that they not only did not support the majority view in this case, being based on criminal statutes involving criminal prosecutions, but, upon the contrary, that the various doctrines touching definiteness and certainty as held by the supreme court of the United States actually and conclusively supported this dissent. The majority now retreat from those federal cases, and withdraw them from their opinion, thereby at least confessing that if they do not support the dissent they do not support the majority.

For this admission I am grateful. I shall not, however, change my former opinion to conform to their change, in order that their voluntary retreat may have a fitting memorial upon the record of this court, and for other reasons, later apparent in this opinion.

There is another case by the supreme court of the United States as to civil liability, which I quoted, to which they make no answer whatsoever. That is the ease of Miller v. Stahl, 239 U. S., 426, decided in 1915, which case involved a statute of Nebraska, Section 3104, relating to the liability of innkeepers. This was the language of the statute: “It shall be the duty of every proprietor, or keeper of such hotel, or lodging house, in case of fire therein to give notice of same to all guests and inmates, thereof at once and to do all in their power to save such guests and inmates. ’ ’

Direct and urgent objection was made to the language, “all in their power,” as being too indefinite and uncertain to create a legal liability against the hotelkeeper. Justice McKenna’s answer is quoted in my former opinion, but in view of the entire silence of the majority in failing to answer this doctrine I want to repeat this much from Justice Mc-Kenna’s opinion, at page 432 of the report:

“The command of the statute is that in case of a fire keepers of hotels must give ‘notice of the same to all guests and inmates thereof at once, and to do all in their power to save such guests and inmates. ’ Could the statute exact less? It is the dictate of humanity,” etc.

Further along Justice McKenna says at page 434:

“Rules of conduct must necessarily be expressed in general terms * * *. It is manifest that rules could not be prescribed to meet these varying qualities * * *. And what better test could be devised than the doing of ‘all in one’s power,’ as determined by the circumstances.”

This reasoning is clear and convincing, and demonstrates that in the judgment of the supreme court of the United States, in a proper case, the Ohio scaffolding statute would be upheld as creating a legal obligation, in exactly the same way as the Nebraska statute created a legal obligation.

The language of the scaffolding statute, Section 12593, General Code, is as follows, so far as pertinent:

“Whoever, employing * * * another to do or perform labor in erecting, repairing, altering or painting a house, building or other structure, knowingly or negligently furnishes, erects or causes to be furnished * * * unsuitable or improper scaffolding, * * * which will not give proper protection,” etc.

The language of the statute is clear and concise; has been in force for half a century and upheld by the courts as humane, just, clear and constitutional; in short as a lawful statute.

Now. it is held that the statute falls; that it is not embraced within the constitutional language, “any lawful requirement,’,’ and hence is not a lawful statute ; for if it be a lawful statute, it must be a lawful requirement.

It is impossible to reconcile the decision of the United States supreme court on the Nebraska statute with the decision of a majority of the supreme court of Ohio on the Ohio statute. One or the other must be fundamentally and radically wrong. In view of the fact that the Ohio statute found additional support in a special constitutional provision adopted in 1912, while the Nebraska statute was not so supported, is it not the. more likely that the supreme court of the United States is not the one in the wrong? '

But there is still a later case, just recently decided by the supreme court of the United States, dealing with general terms in creating civil liabilities, Edgar A. Levy Leasing Co. v. Siegel, 42 S. C. Rep., 289, decided March 20, 1922. In the opinion of Mr. Justice Clarke the following appears:

“It .is also urged that chapter 944 is invalid because the provision that ‘it shall be a defense to an action by a landlord that the rent demanded is unjust and unreasonable, and that the agreement under which it is sought to be recovered is oppressive/ is too indefinite a standard to satisfy the due process of law clause of the Constitution.
“The report of the Marcus Brown Case shows that this contention was urged in briefs by the same counsel presenting it here, and it is apparent that the standard was impliedly approved as valid in that ease, as it was very clearly approved in the Kirsch Case, supra, the court saying: ‘While the act is in force there is little to decide except as to whether the rent allowed is reasonable, and upon that question the courts are given the last word. ’
‘ ‘ The standard of the statute is as definite as the ‘just compensation’ standard adopted in the Fifth Amendment to the Constitution, and therefore ought to be sufficiently definite to satisfy the Constitution. United States v. L. Cohen Grocery Co., 255 U. S., 81, * * * dealing with definitions of crime, is not applicable. ’’

This holding by the supreme court of the United States, as late as March 20, 1922, declares and demonstrates that the federal criminal cases, referred to by the majority in connection with the federal civil cases decided by the supreme court of the United States, not only justify but demand at the hands of this court a judgment exactly contrary to the judgment herein rendered.

The Ohio supreme court stands solitary and alone in this nullification of conservancy statutes because not sufficiently specific and definite in terms. This requirement makes the enactment of protective statutes practically impossible.

In addition to the significant silence of the majority in failing to answer or even discuss the Nebraska case, supra, and in failing to attempt to distinguish it from the Levy case, supra, their silence is equally significant in failing to answer the cases cited in my former opinion from our own court, concerning indefiniteness and uncertainty in statutory law, particularly the following: Lessee of Cochran’s Heirs v. Loring, 17 Ohio, 409, with a most able opinion by Judge Hitchcock; State, ex rel. Hibbs, v. Bd. of County Commrs. of Franklin Co., 35 Ohio St., 458; Gordon v. State, 46 Ohio St., 607; Beverstock, a Taxpayer, v. Board of Education, 75 Ohio St., 144; and the still later case of State v. Schaeffer, 96 Ohio St., 215.

The latter case involved Section 12603, General Code, which was challenged for unconstitutionality by reason of indefiniteness and uncertainty. The part of the statute involved was as follows:

“At a speed greater than is reasonable or proper, having regard for width, traffic, use and the general and usual rules of such road or highway; or so as to endanger the property, life or limb of any person. ’

This was held to be a valid statute, and that holding is put into the syllabus, and the following judges concurred in that syllabus: Nichols, Newman, Jones, Matthias and Johnson.

There is no answer attempted by the majority to these Ohio cases. It cannot be through inadvertence. The only conclusion is that the cases are unanswerable; that they do not in any wise support the majority opinion.

It is not and cannot be seriously claimed that the meaning of the scaffolding statute is not plain, not clear. The real fundamental objection is that it means too much, imposes too great a duty upon the employer. The measure of that duty has always been recognized as a legislative act. It is now made not a legislative act, but a judicial act.

The supreme court of the United States having held under the Nebraska statute that the language “to do all in their power to save such guests and inmates” is sufficiently definite and certain to conform to the constitutional requirement “due process of law,” and is therefore a lawful requirement, and having held later in the Levy case, supra, that the words “unjust and unreasonable” in connection with the rent, and the word “oppressive” in connection with the agreement between the landlord and the tenant, are also sufficiently definite and certain to comply with “due process of law” and are therefore lawful requirements, and our own supreme court in the Schaeffer case, supra, having held that the language, “speed greater than is reasonable or proper, * * * or so as to endanger the property, life or limb of any person,” is also sufficiently definite and certain to constitute a lawful requirement, how shall it now be held in all consistency and logic that the scaffolding statute, using the words “unsuitable or improper scaffolding * * * which will not give proper protection,” is too indefinite and uncertain, when these latter terms are in no wise more indefinite or more uncertain than similar terms in the other statutes held good by our own supreme court, no less than by the supreme court of the United States! It is a technical distinction with no substantial difference.

Now as to the second change in the opinion of the majority by reason of the rehearing. The new matter added begins with this paragraph, which I quote in full:

“Notwithstanding this legislative check upon this assault made upon the workmen’s compensation law, a smoke screen is being laid behind which another assault is now made, which is more insidious than the former, and more calculated to break down the entire Workmen’s Compensation Law. Counsel who make the attack upon the law practically concede this in their briefs. In their argument, under a topical heading, they ask: ‘Is there any “lawful requirement” left upon the statute books of Ohio?’ They answer: ‘There are very few such statutes in Ohio. ’ Thereupon they cite various sections of the Ohio Code which would hamstring the Workmen’s Compensation Law, and leave only the bare skeleton for its operation. ’ ’

This language involves a most serious charge against all opponents of this decision, but it must be conceded that if it be true that its opponents are engaged in an attack upon the Workmen’s Compensation Law, as authorized by the constitution, the charge is a just one.

The language here, to my mind, is somewhat amusing. It reminds me of the old question: When did you get out of the penitentiary? The question may be a proper and pertinent one, but it presumes or assumes that you were in the penitentiary, which may be a most vicious falsehood. So here we have the presumption or assumption that we are attacking the Workmen’s Compensation Law.

This I deny, and demand the proof. The statute does not make the employer exempt from all negligence when he contributes to the workmen’s compensation fund. Section 35 of the Constitution clearly and expressly forbids the legislature to exempt the employer who is a contributor to the workmen’s compensation fund from a suit at law where he fails to make proper safeguards required by the law for the life, limb, health and safety of the employes.

Obviously the conservation of life, limb, health and safety of the workmen in shops, factories and mines is very largely dependent upon what the employer does toward safeguarding machinery and protecting the workmen from all preventable and dangerous hazards. If the employer observes all lawful requirements, which certainly include any valid statute, he is exempt; the employe must be content with the partial compensation furnished from the workmen’s compensation fund. But, if the employer fails or refuses to provide these safeguards, upon what principle of justice, equity, or humanity should he claim immunity fi’om an action at law?

There was once a “certain lawyer,” and he was a big lawyer, putting big questions in a big way, who asked the great “Judge” of all the following question: “Master, what shall I do to inherit eternal life?” The Judge’s reply was: “What is written in the law?” But the Judge did not stop there. That was only question No. 1. Then came question No. 2, which is really the important question, the one question that distinguishes one judge’s law from another judge’s law, though they both read the same language: “How readest thou?” (Luke 10:25, 26.)

Question No. 1, as applied to this ease, is: “What is written in the law” in Ohio’s Constitution as amended in 1912?

Question No. 2, “How readest thou?” is the question put to every judge, of this court.

The conservation policy of the constitution, as found in Section 34, Article II, is made paramount to all other provisions of the constitution by the express language of that section. Let us read it again.

“Sec. 34. Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employes; and no other provision of the constitution shall impair or limit this power.”

Was this provision, put into the constitution for the first time in 1912, intended to wipe out all protective laws for employes, as is now done by the decision of this court in this case; or was it intended to enlarge the power, to safeguard the power, of the legislature of Ohio touching the conservation of human life, even as against the decisions of this court?

It seems to me this is a pertinent question, for there is nothing left of Section 34 that is practical under this decision limiting a law dealing generally with industrial life to specific and definite terms. Common knowledge and experience, and particularly the above-quoted language from the opinion of Justice McKenna of the United States supreme court, show that it is impossible to put a general statute dealing with general conditions in anything else than general terms.

Now, the sovereign people of Ohio settled this question, or thought they did until this court unsettled it, by expressly providing that when cmy lawful requirement is imposed upon the employer of labor, whether he be a contributor to the workmen’s compensation fund or not, he shall be liable in a common-law action for the injury caused by failure to observe the statute, or perchance the order of some commission created by statute.

Does this court hold that this scaffolding statute is not a lawful statute ? It has been held lawful by our state and federal courts for a half century. What is the holding of this court now? It does not expressly say; and yet the only inference is that it is not a valid statute, because the court says it is not a lawful requirement. If it is a lawful statute, and by all the lawful tests heretofore knoAvn it is and has been so held, then I maintain that it is likewise of necessity a lawful requirement and comes within the constitutional provisions of both Sections 34 and 35.

If this court were as much concerned about the actual attack upon the constitution, Section 34 and the latter part of Section 35, as it seems concerned about the attack upon the compensation law passed by the general assembly, this judgment would be quite contrary to what it is now. If the position of the minority be an attack upon the workmen’s compensation statute, then the Ohio Constitution itself is an attack upon the statute, because the constitution itself imposes upon the employer a duty to observe cmy lawful requirement which the legislature sees fit to impose, and does not give the employer immunity from common-law actions, though he be a contributor to the fund. Neither the statute passed by the legislature nor the construction of the statute by the supreme court of Ohio has á right to invade and overrule this plain provision and limitation put into the constitution by the sovereign people of the state.

The majority seem concerned not with “what is written in the law, ’ ’ the constitution, but with what is written in the briefs of counsel. It is a novelty indeed to undertake to support an opinion prepared in compliance with the provisions of our Ohio Constitution as to “reasons therefor” (referring to the judgment) by quoting the law from the briefs of counsel. Counsel’s briefs are very often helpful in calling attention to the legal questions involved, and the principles and authority by which they are sustained. They are often used as admissions of fact, but I never knew the Marshalls, the Cooleys, the Ranneys or the Thurmans to use them in support of the law or logic by which a judgment is justified.

Slaughter oe the Statutes.

In my former opinion I called attention to the legal consequences of this judgment. The following language was therein used:

“It [this court] has practically nullified all conservation statutes, which must of necessity by their very nature be made in general terms. You cannot deal specifically with all .the varied machinery, appliances, and places of employment. General words alone, describing the degree of safety, are all that the situation and circumstances will permit. Yet, all such statutes are practically nullified by this decision.”

No answer has been made or attempted to this indictment against the majority opinion.

I renew, the charge.

Section 1027, General Code, is introduced by this language: “Provisions to prevent injury to persons who use or come in.contact with machinery.”

The first sentence of the section reads: “The owners and operators of shops and factories shall make suitable provisions to prevent injury to persons who use or come in contact with machinery therein or any part thereof as follows. ’ ’ Then follow some fifteen different paragraphs dealing in general terms, general language, with the duty of the employer in safeguarding machinery, places to work, shafting, shifts, hallways, emery wheels, and almost every kind and variety of dangerous devices and situations in all the various kinds of shops and factories. This statute directly affects and safeguards the life, limb, health and safety of the great majority of men, women and children who work in the shops and factories of the state. By this decision, this statute is literally and logically wiped out of the books, and the majority in effect admit that it is so wiped out, in the opening paragraph of the new matter inserted in their opinion, particularly by this question, “Is there any ‘lawful requirement’ left upon the statute books of Ohio?” And its answer : ‘ ‘ There are very few such statutes in Ohio. ’ ’ The majority do not deny that conclusion as the result of this judgment.

By the same logic it follows that all other similar statutes likewise fall, and the workingmen and workingwomen of the state of Ohio to-day are wholly without any statutory protection, either criminal or civil, as a result of this decision. Their safety and health are to be put in constant danger, their lives and limbs slaughtered, and their redress is the pittance provided in the Workmen’s Compensation Law, $5,000 for the loss of life.

Many years ago the general assembly of Ohio passed an act limiting the amount to be recovered in an action for wrongful death at $10,000. The Constitutional Convention of 1912 said that that was a gross outrage, an unfair and unreasonable limitation. It therefore provided an amendment to the Bill of Bights, Article I, Section 19a, as follows:

“The amount of damages recoverable by civil action in the courts for death caused by the wrongful act, neglect, or default of another, shall not be limited by law.”

Clearly this nullified that old statute and deprived the legislature of all power to again limit the amount to even $15,000, $20,000, or any other sum. Yet, by this decision of the majority of this court, as to all contributors to the workmen’s compensation fund, this limit for wrongful death caused by the violation of any statute is now not $10,000, but $5,000.

This, after all, is only another illustration that the sovereign people may make all the constitutional provisions they please, and the supreme court, under the mask of construction, may so change those constitutional provisions that they are almost beyond identification.

A man killed in the street by violation of the automobile traffic statute may recover $20,000, but the workman in the shop who has been killed by a violation of the statutes providing safeguards for machinery, where his employer is a contributor to the workmen’s compensation fund, as nearly all of them are, may recover only the $5,000 provided for in that statute. What becomes of the constitutional provision “Equal protection of the laws?”

But the vice in this judgment is not limited merely to those statutes enacted for the protection of the workingman in the workshops, mines and factories. Every statute imposing a duty, civil or criminal, is challenged and jeopardized by the law and logic declared by the mere majority of this court.

You cannot have one rule of definiteness as to one class of people, and another rule of definiteness as to another class of people, when it comes to construing statutes. Scarcely a statute of Ohio but what may be subject to a new challenge against its validity because written in broad general terms, and of necessity so. The whole state of our statutory law is put into hopeless confusion instead of being simplified and stabilized as it should be.

The majority opinion undertakes to say that the Ohio Federation of Labor in its brief filed in this court is quite content with the conclusion reached in this case. When the industrial army of the state of Ohio fully realize what has happened to the conservation statutes of Ohio by virtue of this decision, that their lives and limbs have been further endangered, that henceforth their employers need take no care nor expend any money for the safeguarding of dangerous machinery, or dangerous places to work, or dangerous appliances, that the workmen at most will be limited to what they are to get out of the Workmen’s Compensation Law, and that the employers are free from any suit at law, then I fear that the workmen of Ohio will not look with such supreme satisfaction upon this ¡judgment as 'the opinion of the majority of the court seems to indicate.

Surely the great industrial army of Ohio do not approve of the further endangering or cheapening of human life and limb in our factories and workshops. I gladly concede to the majority an honest difference of opinion. That honest difference in opinion does not arise out of the question, “What is written in the law?” We all know that. We all have read the constitution. We all have read the statutes. We all have read the various decisions of the courts, state and federal. The primary and paramount differences, however, grow out of the second question, “How readest thou?” Do we read it as the constitution-makers intended it, as the constitution-makers plainly put it? Do we read it from the standpoint of the employe, whose life, limb and health were intended to be protected, or do we read it from the standpoint of a small circle of coldblooded employers, who prefer their cash to the life and limb of the workingman?

The dictates of humanity, justice, and sound reasoning call for a contrary judgment.

Many big constitutional questions have been before this court during the past year. The emergency clause of the late reorganization bill aroused much interest. This court was seriously divided, and by a vote of four to three the statute providing for reorganization was sustained. The majority opinion made vigorous appeal in favor of sustaining statutes, as shown by the opinion. Now, by this júdgment, not one, but a multitude of statutes are stricken down by the same division of the court. They are not only stricken down for the present, but the doctrine announced in this case, so long as it shall stand upon the records of this court, makes practically impossible the enactment of any other statutes for the protection of the life, limb, safety and health of the workingman.

The zeal of this court for the reorganization statute is in marked contrast to its indifference to the many statutes on our books designed for the protection of human life and limb, health and safety, that would seem to be primary and paramount considerations of constitutional government, all of which must fall as the result of this decision.

Ohio stands alone in the announcement of this new doctrine, whereby the safety statutes of Ohio are successfully submarined, and become only a byword and a memory.

The claim of the majority that the duty imposed by the scaffolding statute is merely common-law duty T emphatically deny. Else why the statute? It is not a codification, but a new statement of a new and higher duty, all of which I will discuss in the Sniegowski case, post, 161, involving the statute against unguarded, dangerous machinery, decided on this same date.  