
    CONSTITUTIONAL LAW*
    [Butler Circuit Court,
    1902.]
    Swing, Giffen and Jelke, JJ.
    State ex rel. Gard v. E. H. Harmon, District Examiner.
    1 Act 94 O. L. 33, as to Licensing Engineers, Invalid.
    The act of March 1,1900, 94 O. L. 33, See. 4364r-891, Rev.-.Stat., et seq., providing- ' ■ for the licensing of stationary engineers, in that it exempts from examination for licenses those who have been continuously employed as engineers for the-three years next preceding its passage, to-wit, from March 1,1897, to March 1, 1900, arbitrarily exempts from its operation, by the time limit im- - posed, a large,- fixed, particular number or set of engineers, and excludes all others not within the time limit designated therein, thereby contravening ¡ ' Sec. 2, Art. 1 of the bill of rights and-Sec. 36, Art. 2.of.the constitution of the .. state,- ■ i
    
      2. Unconstitutionality op Sec. 7 Invalidates the Whole Act.
    Section 7 of the above act, by excepting a certain class of engineers, constituting as they do a large proportion thereof, affects the scope of the whole law, and therefore the whole act is unconstitutional.
    J. M. Sheets (Attorney General), and S. W. Bennet (special counsel) for the demurrer.
    Warren Gard, W. M. Ampt and James E. Neal, against the demurrer.
   JELKE, J.

The only objection to the law herein involved, viz: “An act for the better protection of life and property against injury or damage resulting from the operation of steam engines and boilers by incompetent engineers and others, and to repeal an act therein named,” 94 O. L. 33, Sec. 4364-891 to 4364-89w, Rev. Stat., which gives us serious consideration is ' that urged to the provision of Sec. 7, which reads as follows:

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

It is contended that this section arbitrarily exempts from the requirements of the act a large, fixed, particular number of engineers who would naturally belong to the class sought to be regulated by the general provisions of the law and hence is in contravention of Sec. 2, Art. 1 of the bill of rights, and Sec. 26, Art. 2 of the constitution.

The particular engineers who can substitute three years’ continuous employment in lieu of an examination are fixed once and for always by the passage of the act. They are those who have been continuously employed as engineers between March 1,1897, and March 1,1900, and none other. Here is a particular class marked off by an arbitrarily fixed time limit from the general class, and Into this particular class no one thereafter can ever enter. A little reflection will make apparent that this particular class is large.

There is no objection within the legislative wisdom to making three years’ continuous employment the equivalent of an examination, but the privilege of tendering this equivalent must not be given to a particular set of engineers.

The Supreme Court said, per Spear, C. J., in State v. Gardner, 58 Ohio St. 599, 610 [51 N. E. Rep. 136; 41 L. R. A. 689; 65 Am. St. Rep. 785]:

“ Our bill of rights prohibits the granting of privileges to one which are denied to others of the same class, and the imposition of restrictions or burdens upon certain citizens from which others of the same class are exempt, and Sec. 26 of Art. 2 of the constitution requires that all laws of a general nature shall have a uniform operation throughout the state. A statute, therefore, which imposes special restrictions or burdens, or grants special privileges to persons engaged in the same business under the same circumstances, cannot be sustained because it is in contravention of the equal right which all are entitled to in the enforcement of laws, and in the enjoyment of liberty, and in the enjoyment of an equal right in the acquisition and possession of property, and so is not of uniform operation.

“The constitutional objection to this statute is that it operates unequally in that it imposes the burden of an examination and license fee upon certain persons, and exempts others of the same class, pursuing the same business in the same way.”

Also see State v. Gravett, 65 Ohio St. 289.

At first we considered declaring Sec. 7 invalid and letting the remainder of the law stand, but the exception of Sec. 7 is so large that it affects the scope of the whole law.

The general assembly may not have legislated on the subject at all had it realized that it could not make the exceptions provided for in Sec. 7.

We do not think the fourteenth amendment of the federal constitution applies to this subject matter.

The other objections to this law are not, in our opinion, well taken. We are of opinion that this law is invalid.

Demurrer to petition overruled.  