
    State v. Nelson.
    
      Screens for protection of electric street car motormen — Laws of general nature and uniform operation — Constitutional law— Validity of act of April SO, 1893 {90 Ohio Laws, SSO.)
    
    The act of the General Assembly, entitled “An act requiring persons, associations and corporations, owning or operating street cars, to provide for the well being of employes,” 90 Ohio Laws, 220, is not in conflict with section 26, article II of the Constitution of this state, which provides that “All laws of a general nature shall have a uniform operation throughout the state.” ’ Neither is it in conflict with section one of the fourteenth amendment ■ to the constitution of the United States.
    (Decided December 11, 1894.)
    Exceptions by Prosecuting Attorney of Clark county.
    At the January term ■ 1894, of the court of common pleas of Clark county, Samuel L. Nelson was indicted, for permitting an electric street car to remain without the screen required by statute for the protection of the motorman.
    Mr. Nelson demurred to the indictment, on the ground that the statute under which the indictment was found was unconstitutional. The court of common pleas sustained the demurrer, and discharged Mr. Nelson. The prosecuting attorney excepted to the ruling of the court, and on leave of this court, now presents his exceptions here for the purpose of testing the constitutionality of the statute.
    
      Chase Stewart, Prosecuting Attorney, for the state.
    That the legislature has power to pass acts for the protection of the health of employes, is well settled. Sections 8767 and 8766, Revised Statutes, requiring manufacturing establishments to provide seats for employes, and similar laws, wqre passed by the legislature upon the theory of the right to provide for the health and protection of employes.
    An act almost identical in its terms for the protection of motormen, as the above, was passed in the state of Minnesota in 1893. American Digest, page 2741, act April 16, 1893.
    The power of the legislature under article 13, section 2, of the Constitution of Ohio, adopted in 1851, was greatly enlarged so far as altering and changing laws forming corporations were concerned. Said articles providing that corporations may be formed under general laws, but all such laws may, from time to time, be altered and repealed. Under the constitution of 1802, the legislature did not have such power as that conferred under said article 13, section 2; sec. 2711, Giaque’s Revised Statutes, and the authorities cited.
    It is claimed that the statute is unconstitutional for the reason that being class legislation, it does not operate alike upon all the members of the ■ class, to govern which the same was enacted. It is upon this ground that the court below sustained the demurrer to the indictment. It is claimed by the state that it is for the legislature to decide whether this law shall apply to all kinds of street railways; whether the common good requires that it should apply to all kinds of street railways. The legislature on the passage of this act may have concluded that the same should not apply to cable cars, for the reason that on most of the cable cars, the gripman has his station near the middle of the forward ear, from which point, surrounded by passengers, he controls the movement of the car. Evidently from the very character of the construction of the car upon which he is located, he is not exposed to the wind and storm like the motermen who stand on the forward end.
    There are reasons likewise why the driver of a horse car should not be surrounded by a screen or other material in the same manner as a motorman.
    
      First — Because in order to manage the horses he is driving, with advantage, and with safety to passengers, he should not have any barrier between himself and the horses over which he has control.
    
      Second — The electric car travels with much greater speed than the horse car, and the exposure is much greater to the motorman than to the driver of the horse car. For these as well' as other reasons, the legislature may naturally conclude that these different kinds of street cars do not come in the same category. Railroad Co. v. Iowa, 94 U. S., 155.
    It was proper therefore to provide in some way for an adaptation of the rates to the circumstances of the different roads, and the general assembly, in the exercise of its legislative discretion has seen fit to do this by a system of classification. Whether this was the best that could have been done, it is not for us to decide. Our province is only to determine whether it can be done at all under any circumstances. If it could, the legislature must decide for itself, subject to no control from us, whether the common good requires that it should be done.
    The rule applied in this case leaves it to the legislature to decide whether it would not be unjust to require this law to apply to street railways having cable cars constructed upon a different plan entirely from that of an electric; as the result in most cases would be to require an entire reconstruction of the cable car, and possibly an entire change of the machinery of same. Likewise it is left to the legislature to decide as to whether the common good is not better subserved by having the law not to apply to horse cars. .
    
      Oscar T. Martin, appointed to argue against the exceptions.
    The law under which this act was framed, is part of that misfit legislation which is too often the result of hasty and ill-considered action. It was evidently intended at first to operate upon and include all street’cars, as the act was entitled “An act requiring persons, associations and corporations owning’ or operating’ street cars to provide for the well being of employes.” Pending final action on the bill, through process of amendment, no doubt, the word “electric” was inserted, which made a wide divergence between the title and the subject of the act. While it is true that the constitutional requirement, to have the subject clearly expressed in the title is directory merely, yet in endeavoring to determine what is the object of the bill, we are 'authorized to look at its title. Bronson v. Oberlin, 41 Ohio St.,403.
    Here the subject is distinct from the title. The latter includes all the former but one kind of street cars.
    The claim of the state that the legislature can thus arbitrarily create classes without reference to the circumstances and conditions of the subject constituting the class, is a new and startling doctrine. Nor are the reasons suggested, which the legislature may have had in view, sufficient for such classification.
    It is the distinction between members of the same class similarly situated which constitutes the vice of such legislation. It is a violation of the rule, that uniform operation requires that the law shall bear equally in its burdens upon persons standing in the same category. Senior v. Ratter-man, 44 Ohio St., 678.
    I submit the following propositions and authorities:
    
      Fvrst — The statute is invalid, for, though general in form, it is not so in operation, in that it selects the electric street car as the object of restriction, and exempts the other street cars from the same. Cons. Art. 2, sec. 26; Cooley’s Const. Lim. (6th ed.), 484; Youngblood v. Trust Co., 12 S. Rep., 530; Carter v. Coleman, 4 S. Rep., 151; Adler v. Whitbeck, 44 Ohio St., 565; Smith v. Railroad Co., 75 Ala., 449; L. & N. Co. v. Baldwin, 5 S. Rep., 313; 128 U. S., 96; State v. McGill, 34 Ohio St., 238; Bronson v. Oberlin, 41 Ohio St., 481.
    
      Second — All persons similarly situated must be affected alike, otherwise there is a discrimination not warranted by the Constitution and against public policy. Bartle v. Connelly, 113 U.S., 27; Railroad Co. v. Beckwith, 129 U. S., 26; Gulf Ry. Co. v. Ellis, 21 S. W., 935; State v. Goodwin, 33 West Va., 179; Millett v. People, 117 Ill., 294; Elevated Railroad Co., 70 N. Y., 350; Frorer v. People, 141 Ill., 171.
    
      Tlvird — The occupation of the street by an electric street car is not a different' use from that of other street cars. It is the nature of the use, not the motive power, which determine! whether • the road belongs to one class or the other. Clement v. Cincinnati, 16 Bull., 355; Fulton v. Transfer Co., 85 
      Ky., 640; 4 S. W. Rep., 332; Briggs v. Railway Co., 79 Me., 363; Taggart v. Ry. Co., Rh. Is. Sup. Ct. (7 St. Ry. Decisions, 67).
    
      Fourth — The legislature, in the exercise of its police powers, may pass laws restricting an individual in the use of his property, when such use may result in injury to others. Provided the restraining statute does not discriminate in favor of one person or class of persons over another. State v. Tennant, 14 S. E., 388; State v. Moon, 10 S. E., 143; State v. Storall, 8 S. E., 900; Dent v. State, 129 U. S., 114; Cooley’s Const. Lim. (4th ed.), 198; City of Wellington, 19 Pac., 719.
    
      Fifth — The legislature cannot, in the name of the police powers, adopt any arbitrary classification, but that must arise from the business or occupation itself. State v. Sheriff, 51 N. W., 112; 48 N. J. L., 88; State v. Harrison, 42 N. J. L., 440; Johnson v. Railway Co., 45 N. W., 157.
    
      Sixth — The statute is an invasion of the internal affairs of the company, interferes with its right to make contracts upon the same basis as others, and is not supported upon considerations of public necessity, convenience or welfare. Booth St. Ry. Law, 229; Thomlittle v. City of Cincinnati, 4 Cir. Ct., 357; Railroad Co. v. Brooklyn, 37 Hun., 413.
    The Constitution having directed the legislature to provide for the organization of municipal corporations by general laws, and in pursuance thereof, such general laws having been enacted and specific powers having been granted, among which was the power to fix the terms upon which street railways may be constructed, operated and extended, and the municipal corporation having exercised that power, the authority to further regulate the operation of the street railway, remains with'the municipal corporation, until such power is taken from it. State ex rel. v. Cincinnati, 20 Ohio St., 36; Ency. Law, vol. 15, p. 974; McConty v. Denning, 51 Conn., 422; State v. Clark, 54 Ill., 17; 12 Ohio St. 377; 27 Ohio St., 426; Revised Statutes, 3433, 1692; section 6, article XIII, Const. Ohio; Bliss v. Kraus, 16 Ohio St., 54; 36 Ohio St., 250; 43 Mich., 146.
    I submit the following proposition from the Ohio ,Decisions: An act passed by the General Assembly (80 O. L., 70), requiring county commissioners in any county ‘having’ a population at the census of 1880 of 43,788, and containing a city of the second class, third g’rade, to provide a depositary for the public funds, was held void, because a law of general nature and not of uniform operation. State ex rel. v. Ellet, 47 Ohio St., 90.
    Under the operation of this statute, acts which in one county are innocent, in another are grave crimes. McGill v. State, 34 Ohio St., 247.
    A statute authorizing incorporated villages having within their limits a college or university, to provide against the evils resulting from the sale of intoxicating liquors, was sustained, because it groups in a class all incorporated villages in the state having within them a college or university. Bronson v. Oberlin, 41 Ohio St., 481.
    The Dow law was claimed, among other things to be invalid, because being a law of a general nature, it was not of uniform operation, as it did not include the manufacture of intoxicating liquors and sale thereof in quantities of one gallon or more; and that it applied to the retailer and not the wholesaler.
    But the court held that it was uniform in its operation upon the same principle that • larceny was divided into grand and petit larceny, by the creation and definition of categories, and because the legislature bad drawn an obvious distinction between the ’distillery and the brewery on one hand, and the saloon on the other. Adler v. Whitbeck, 44 Ohio St., 575. Had it made a class among the saloons by some arbitrary distinction, which would have burdened some and exempted others, the law could not have been upheld. The law which sought to impose upon railroad companies a fee of one dollar per mile for each mile of track, was held invalid, because it contravened the Constitution in this: that it subjected a railroad company to a taxation to which other property was not subjected. Railroad Co. v. State, 49 Ohio St., 198.
    An act authorizing villages to levy special assessments for sidewalks, and which by its terms was limited to any villag’e in any county, containing a city of the first grade of the first class, in which no sidewalks have already been constructed under sections 2334a, b, c, held invalid as making a classification of villages unwarranted by the Constitution. 88 Ohio L., 311; Costello v. Wyoming, 49 Ohio St., 209.
    The clause of the Constitution (article II, section 26) providing that all laws of a general nature shall have a uniform operation throughout the state, is mandatory and not directory merely. Falk ex parte, 42 Ohio St., 638; Kelly v. State, 6 Ohio St., 269; State v. Smith, 48 Ohio St., 218.
    The principle of uniform operation requires simply that the law shall bear equally in its burdens upon persons standing in the same category. A law is uniform in its operation where every person who is brought within the relation and circumstances provided for, is alike affected by the law. It must have a uniform operation upon all those in-eluded within the elass upon which it purports to operate. Senior v. Ratterman, 44 Ohio St., 678. The supreme court of Minnesota in upholding the validity of the vestibule law recognizes the principle upon which .the demurrer was sustained in this ease by the court below. State v. Hoskins and State v. Smith, 59 N. W. Rep., 545.
   Burket, J.

The statute in question is as follows :

“An Act
“Requiring persons, associations and corporations owning or operating street cars, to provide for the well being of the employes.
“Section 1. Be it enacted by. the General Assembhf of the State of Ohio, That every electric street car, other than trail cars, which are attached to motor cars, shall be provided during the months of November, December, January, February and March of each year, at the forward end, with a screen constructed of glass or other material, which shall fully and completely protect the driver or motorman or gripman, or other person stationed on the forward end guiding and directing the motor power by which they are propelled, from wind and storm.
“Section 2. Any person, agent or officer of any association or corporation violating the provisions of this- act, shall, on conviction, be fined in any sum not less than $25.00 nor more than $100, for each day each car belonging to and used by any such person, association or corporation is directed or permitted to remain unprovided with the screen required in section 1 of this act; and it is hereby made the duty of the prosecuting attorney of each county in this state to institute the necessary proceedings to enforce the provisions of this act.
“Section 3. This act shall take effect and he in force on and after November 1, A. D. 1893.”
It is claimed that this act is in conflict with that part of section 26 of article II of the Constitution which provides that “All laws of a general nature shall have a uniform operation throughout the state. ’ ’

The act in question is clearly of a general nature, so that the only inquiry left is whether it is of uniform operation throughout the state. And here again it is equally clear that the law is in operation throughout every part of the state, uniformly as to all classes therein named. Is this sufficient? Soon after the adoption of the Constitution it was said by this court that the scope and purpose of this section was to prevent laws of a general nature from being in force in some counties and not in others, and these early cases have been followed ever since.

So held in Cass v. Dillon, 2 Ohio St., 607, 617; Lehman v. McBride, 15 Ohio St., 573; McGill v. State, 34 Ohio St., 228, 248 and Falk ex parte, 42 Ohio St., 638, 641.

In McGill v. State, 34 Ohio St., Boynton, J., on page 238, quotes what was said by Thurman, J., in Cass v. Dillon, 2 Ohio St., 617, and after referring to the debates of the constitutional convention, as to this section of the constitution, says:

“A general law, that land should not be sold upon execution for less than two-thirds of its appraised value was excluded from operation in several counties by local enactment. There were different laws in different counties respecting the descent and distribution of intestate property. Some statutes defining legal offenses were excluded in their operation from a large part of the state; and different penalties for a violation of the same act, were, in some instances, provided for different localities. These are examples of the legislation, to prevent which in the future, and the mischief resulting from it, this provision of the Constitution was adopted. But no wider scope was claimed for it than to guard the future against the evils and inequalities resulting from legislation of the character complained of. ’ ’

Of late years an effort has frequently been made to claim for this section of the Constitution a wider scope than to guard against the evils, resulting from legislation of the character mentioned by Thurman, J., in Cass v. Dillon, Scott, J., in Lehman v. McBride, Boynton, J., in McGill v. State, and Okey, J., in Falk ex parte, but such efforts have uniformly failed. The only statutes which have been declared in conflict with this section of the Constitution, are statutes making different classes of different parts of the territory of the state, such as cities, villages, etc.

This section of the Constitution requires that laws of a general nature shall have not only an operation, but a uniform operation throughout the state, that is the whole state, and not only in one or more counties. The operation must be uniform upon the subject matter of the statute. It cannot operate upon the named subject matter in one part of the state differently from what it operates .upon it in other parts of the ■state. That is, the law must operate uniformly on ■the named subject matter in every part of the -state, and when it does that it complies with this section of the Constitution. That this is the scope and purpose of this section appears front its language, the debates of the constitutional convention, and the uniform construction placed thereon by this court in the cases above cited, and others hereinafter referred to.

As the statutes affecting different cities and villages of different classes practically do not operate in every part of the state, but only where a city or village of the particular class is found, it might seem that such laws do not operate uniformly throughout the state. A moment’s reflection will show that this is not so. If a new city or village of a particular class should be built up in the wildest spot in the state, the statutes applicable to such class of city or villages would be found to be in force there, and in that sense all statutes applicable to different classes of cities and villages, are in uniform operation in every part of the state. The classification of cities and villages is in its nature territorial, and this court has uniformly held that such classification must be reasonable and not arbitrary.

On the other hand, statutes as to rights of persons and property usually are, and in their nature must be, arbitrary.

Very few statutes apply equally to every person in the state. Some apply only to males, some ■ to females, some to minors, some to persons of unsound .mind, some to office holders and some to criminals. As pointed out by Minshall, J., in Adler v. Whitbeck, 44 Ohio St., 539, such classes are arbitrarily formed by the general assembly, and “if the legislature has erred in not including what has been excepted from the operation of the law, it is simply an error of judgment in the exereise of its authority, and cannot be reviewed by the courts. ’ ’

In Adler v. Whitbeck, supra, an effort was made to have the statute, there under consideration, declared unconstitutional because its classification included saloons, and excluded distilleries and breweries, but the effort failed.

A similar effort was made in Senior v. Ratterman, 44 Ohio St., 681, because wholesale dealers and manufacturers were not included within the same class, and the effort again failed.

A similar effort was made in State v. Turnpike Co., 37 Ohio St., 481, as to the classification of turnpikes? and the effort again failed.

The court of appeals of the state of New York, under a similar provision as to general laws, holds that the courts cannot control such classifications made by the legislature.

In re New York Elevated Railroad, 70 N. Y., the court, on page 351, say: ‘ ‘ Can a court take proof for the purpose of showing a statute valid and regular upon its face to be unconstitutional? And does the validity of a law which is required to be general, and which is general in its terms, depend upon the number of subjects upon which it can operate, or upon the size of a class to which it applies ? . These questions must be answered in the negative. ’ ’

In Iowa the language of the constitution is as follows : ‘ ‘ All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens. ”

It will be noticed that the words “ throughout the state ’ ’ are not contained in the Iowa constitution, and that unlike our Constitution, it prohibits the General Assembly from granting to any citizen, or class of citizens, privileges or immunities, which upon the same terms, shall not equally belong to all citizens.

In this latter regard the scope of the Iowa constitution is broader than our own. Decisions under the Iowa constitution, therefore, can throw no light upon the proper construction to be placed upon this section of our constitution.

The constitution of California provides in this regard as follows : ‘ ‘All laws of a general nature shall have a uniform operation.” As to this part of the California constitution, and as to the similar provision in our own, Okby, J.,in Falk ex parte, 42 Ohio St., 641, says: “And in this connection it is proper to refer to the origin of the constitutional provision in question. We find that it was suggested by a provision in the constitution of California, which provision, however, had not been construed when our Constitution was adopted: but the California constitution did not contain the words, “throughout the state;” they were added to our Constitution, on motion, while the provision was under consideration in the convention (2 Debates579); and the absence of thosewords was made the ground of decisions in California which would never have been made if the constitution of that state had contained those words.”

This quotation from the opinion of Okey, J., shows that the decisions under the California constitution, can not be regarded as criteria in the interpretation of our own, as to this section. The words ‘throughout the state’ imply a limitation in one respect, and give an extended scope in another, not possessed by constitutions of other states not having those words.

The scope and force of this section of our Constitution being as herein indicated, it is clear that the statute in question is not in conflict therewith. The statute is in operation in every part of the state, and operates uniformly upon the classes of persons therein designated, in every part of the state. The act is clearly authorized as a police regulation to protect the health and promote the comfort of those engaged in operating electric cars.

If there are other persons requiring protection, ■such protection should be sought through the General Assembly by increasing the protected class, rather than by removing all protection, through the action of the courts.

There is another reason why this statute can not be declared unconstitutional. While a statute must stand or fall by its operation, rather than by its mere form, yet in passing upon the constitutionality of a statute, a court can judge of its operations only through facts of which it can take judicial notice. A court cannot take testimony to determine the operation of a statute, and thereby declare it unconstitutional. Neither can a court judicially know that a cable car, or a horse car, is so constructed and operated as to require the same means of protection for the operatives as is required on electric cars.

The appliances and construction of cars, and in fact all kinds of machinery, are continually changing, and it is within the exclusive authority of the General Assembly, in the exercise of its police power, to determine, by general laws, what if any, regulations are required for the protection of the health, safety and comfort of the operatives.

Many citations have been made, in the briefs of counsel, from the federal courts, under the first section o‘f the fourteenth amendment to the constitution of the United States.

The force and scope of this section is very different from section 26 of article II of the Constitution of our own state.

Without going into an extended examination of this amendment, it is .sufficient to say that the statute in question is not in conflict therewith, as clearly appears from the following authorities: Barber v. Connolly, 113 U. S. 27-31; Bell's Gap R. R. Co. v. Pa., 134 U. S., 238; Giozza v. Tiernan, 148 U. S., 657, 662; The “Truck Store” cases in Illinois (141 Ill., 171), and the “Script” cases in West Virginia (33 W. Va., 179, 188), have no application to the question in this case.

The conclusion therefore is that the act in question is a valid law, and that the court of common pleas erred in sustaining’ the demurrer to the indictment.

The exceptions of the prosecuting attorney axe, therefore, sustained.  