Davis v. Florida Power Co.

Whitfield, J. (after stating the facts.) — The demurrer to the original declaration was sustained by the — 262 — trial court on the ground that it wholly failed to state a cause of action under the statute, while the demurrer to the amended declaration was sustained on. the ground that the statute violates provisions of the State and Federal Constitutions. The main question presented is whether the following statute violates organic law by denying to the defendant corporation due process of law or equal protection of the laws to its detriment: “3147. Death of minor child by wrongful act. — Whenever the death of any minor child shall be caused by the wrongful act, negligence, carelessness or default of any private association of persons, (or by the wrongful act, negligence, carelessness or default of any officer, agent or employee), or by the wrongful act, negligence, carelessness or default of any corporation, or by the wrongful act, negligence, carelessness or default of any officer, agent or employee of any corporation acting in his capacity as such officer, agent or employee, the father of such minor child, or if the father be not living, the mother, as the legal representative of such deceased minor child, may maintain an action against such (individual), private association of persons or corporation, and may recover not only for the loss of service of such minor child, but in addition thereto such sum for the mental pain and suffering of the parent or parents as the jury may assess.” • This statute was first enacted as Section 1, of Chapter 4722, Acts of 1899, and in its original terms as shown by the enrolled bill on file in the office of the Secretary of State was as follows: “Section 1. Whenever the death of .any minor child shall be caused by the wrongful act, negligence, carelessness or default of any (individual, or by the wrongful — 263 — act, negligence, carelessness or default of any) private association of persons, or by tbe wrongful act, negligence, carelessness or default of any officer, agent or employe (of any private association of persons acting in his capacity as such officer, agent or employe), or by the wrongful act, negligence, carelessness or default of any corporation, or by the wrongful act, negligence, carelessness or default of any officer, agent or employe of any corporation acting in his -capacity as such officer, agent or employee, the father of such minor child, or if the father be not living, the mother, as the legal representative of such deceased minor child may maintain an action against such individual, private association of persons or corporation, and may recover not only for the loss of services of such minor child but in addition thereto such sum for the mental pain and suffering of the parent or parents as the jury may assess.” From Section 1, of Chapter 4722 as printed, are omitted two portions of the section as it is enrolled and duly authenticated and filed in the office of the Secretary of State, and when the General Statutes of 1906 were adopted, the section was incorporated therein as it appears in the printed laws of 1899 and not as it appears in the original enrolled bill. The result is that Section 3147 of the General Statutes is the same as Section 1, Chapter 4722, as it is printed in the acts of 1899, from which is omitted two portions of the original act on file with the Secretary of State. While the original act of 1899 gives a parent a remedy for the death of a minor child caused by the wrongful act or default of corporations, private associations of persons and individuals, the effect of the omission of portions of the original act from Section 3147 of the General Statutes of 1906, is to give the remedy only against cor — 264 — porations and private associations of persons and not against persons in their individual capacity who severally may cause such wrongful death. As all statutes and parts of statutes of a general and permanent nature not included in the General Statutes or not recognized and continued in force by reference therein were repealed by the enactment of the General Statutes, the omitted portions of the original act must be regarded as repealed as they are material and constitute substantive law, and therefore cannot be supplied by intendment. The omitted portions of the original law are not recognized and continued in force by reference or otherwise in the General Statutes. See dissenting opinion in Pensacola Electric Co. v. Soderlind, 60 Fla. 170, 53 South. Rep. 722. Omitted substantive provisions should be supplied by the legislature. See Buck v. Spofford, 31 Me. 34, text 36; 36 Cyc. 1127 note 53; Johnson v. Barham, 99 Va. 305, 38 S. E. Rep. 136. If the words “or by the wrongful act, negligence, carelessness or default of any- officer, agent or employee,” contained in the fourth and fifth lines of Section 3147 of the General Statutes, as indicated above by brackets, do not refer to the preceding provisions as to “private associations of persons,” such quoted words are meaningless, and should be treated as surplusage. Likewise the word “individual” in the latter part of section 3147 may be regarded as surplusage. Where the subject-matter and the purpose of a legislative enactment is ascertained, the language used should be construed so as to give effect to the lawmaking intent, such intent being the vital force of the enactment. Words, contained in the statute should be interpreted with reference to the main purpose designed and the limitations imposed by the fundamental law. See State ex rel. — 265 — Minneapolis, St. T. & S. S. M. R. Co. v. Railroad Commission, 137 Wis. 80, 117 N. W. Rep. 846. Where it is apparent that substantive portions of a statute have been omitted and repealed by the process of revision and re-enactment, courts have no express or implied authority to supply the omissions that are material and substantive and not merely clerical and inconsequential, for that would in effect be the enactment - of substantive law. The statute in’ such a case should be effectuated as the language actually contained in the-' latest enactment warrants; and words that were a part of the omitted substantive provisions, but are useless as-re-enacted may be disregarded as being mere surplusage; and appropriate effect should he given to the connected and complete terms and provisions as they appear in the re-enacted statute, when it can be done without violating the organic law or the legislative intent. See Hayes v. Walker, 54 Fla. 163, 44 South. Rep. 747; Harper v. Galloway, 58 Fla. 255, 51 South. Rep. 226, 19 Ann. Cas. 235. This leads to a consideration of the validity of Section 3147 of the General Statutes with reference to the organic guarantees of due process of law and equal protection of the laws, the purpose of the law being to provide a remedy for death by. wrongful act where no remedy existed at common law. In determining the legality and effect of a statutory regulation, the court should ascertain the legislative intent and if the ascertained intent will permit, the enactment should be construed and effectuated so as to make it conform to rather than violate applicable provisions and principles of the State and Federal Constitutions, since it- must be assumed that the Legislature intended the enactment to comport with the fundamental law. The — 266 — Abby Dodge, 223 U. S. 166; State ex rel. Gubbins v. Anson, 132 Wis. 461, 112 N. W. Rep, 475. While it is the duty of the court to give effect to the State and Federal Constitutions when a statute sought to be enforced clearly and irreconcilably conflicts with constitutional limitations, and consequently to decline to enforce such a statute; yet a duly enacted statute whose provisions are not in undoubted conflict with organic law, is binding on the courts; and in consideration of the latitude the Legislature has in the exercise of its law making powers and discretion, and in deference to a coordinate department of the government, the courts will not decline to give effect to a statute on the ground that it is unconstitutional, unless it clearly appears beyond a reasonable doubt that if the statute is given a construction and effect that will conform to the legislative intent it will positively conflict with organic law, which renders the statute inoperative as a constitutional regulation, and not within the province of the court to enforce. See State v. Butler, 105 Me. 91, 73 Atl. Rep. 560, 18 Ann. Cas. 484; Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549. The requirements of due process of law and of equal protection of the laws are satisfied if there is no unauthorized arid merely arbitrary exercise of the powers of government to the detriment of the people or of some of them. Ozan Lumber Co. v. Union County Nat. Bk., 207 U. S. 251. Due process of law requires that legislative regulations shall not be a merely arbitrary exertion of the powers of government or violate the provisions and principles of fundamental law on the subject; and equal protection of the laws requires that legislative regulations shall not violate constitutional inhibitions or be merely arbitrary — 267 — in applying to some persons and not to others under similar conditions. The discretion of the Legislature when exercised for public welfare in selecting the subjects of police regulations and in determining the nature and extent of such regulations, is limited only by the requirements of the fundamental law that the regulations shall not invade private rights secured by the constitution, and shall not be merely arbitrary in applying to some persons and not to others similarly conditioned. Where a statute does not violate the Federal or State constitution, the legislative will is supreme, and its policy is not subject to review by the courts, whose province is not to regulate, but to effectuate the policy of the law as expressed in valid statutes. State v. Atlantic Coast Line R. Co., 56 Fla. 617, 47 South. Rep. 969, 32 L. R. A. (N. S.) 639. Equal protection of the laws requires that in governmental regulations, every person shall be accorded rights, privileges, exemptions and remedies substantially similar to those that are given to others under practically similar circumstances and conditions; that all discriminations made shall not be forbidden by organic law and shall have some valid, substantial basis in real, practical differences affecting the subjects regulated; and that no essentially unjust or merely arbitrary discriminations of a substantial nature shall be made between persons who are in reality similarly situated or conditioned with reference to the regulation and its practical consequences. A legislative classification is not reviewable unless it is palpably arbitrary. Toyota v. Hawaii, — U. S. —, 33 Sup. Ct. Rep. 47. Legislation which, in carrying out a public purpose, is limited in its application, if within the sphere or its operation it affects alike all persons similarly situated. — 268 — is not violative of the constitutional guaranty of equal protection of the laws. Barbier v. Connoly, 113 U. S. 27, 5 Sup. Ct. Rep. 357; Grainger v. Douglas Park Jockey Club, 148 Fed. Rep. 513, 18 Ann. Cas. 997; Central Lumber Co. v. Dakota, Sup. Ct. U. S., Dec. 2, 1912. The right to equal protection of the laws is not denied by a State enactment, when its provisions are not forbidden by the constitution, and it is apparent that the same law is applicable to all persons in the State under similar circumstances and conditions. Tinsley v. Anderson, 171 U. S. 101, 18 Sup. Ct. Rep. 805. The inhibition that no State shall deprive any person within its jurisdiction of the equal protection of the laws, was designed to prevent any person, or class of persons from being singled out as a special subject for arbitrary and unjust discrimination and hostile legislation. Pembina Con. Silver Mining & Milling Co. v. Pennsylvania, 125 U. S. 181, text 188, 8 Sup. Ct. Rep. 737. If legislation is not palpably arbitrary and operates uniformily on all within a distinct class, it does not deny equal protection of the laws within the meaning of the constitution. Mutual Loan Co. v. Martell, 222 U. S. 225; State v. Davis, 157 N. C. 648, 73 S. E. Rep. 130, 39 L. R, A. (N. S.) 136. Where there is a reasonable and practical ground of classification for legislative regulations under the police power, the classification should be sustained, even though some other classification or the absence of specific classifications would appear to some minds to be more in accord with the general welfare, since the discretion of selecting the subjects of police regulations and the nature and extent of such regulations must be left to the general law making power where there is no undoubted and irreconcilable -conflict between the regulations and the provisions and principles of organic law. See Red “C.” — 269 — Mfg. Co. v. Board Agriculture of N. C. 222 U. S. 380; 207 U. S. 338. That there is a reasonable and practicable basis for a legislative classification that includes all corporations and all private associations of persons, and does not include individuals acting severally, in statutory regulations giving a right to recover damages for the wrongful death of a minor child, seems to be clear; and such a. classification appears to be salutary and appropriate, in view of the increased capacity for wrong doing and the possible division of responsibility and attending burdens, and a consequent lessening of the care observed in action taken or omitted by or for a corporation or a private association of persons. The regulation extends alike to all persons who are associated together as a corporation or as a private association. This complies with the rule that a classification should include all persons similarly conditioned with reference to the subject regulated. See Hammond Packing Co. v. State of Arkansas, 212 U. S. 322. The mere failure of the Legislature to extend the regulation to single individuals does not render the regulation invalid as to those affected by it, when those so included are not injured by an arbitrary exertion of the powers of government. If those associations of persons that are included in the regulation perpetrate negligent injuries they cannot justly complain that individuals in their several capacity as such individuals are not subject to similar liability. For aught that is made to appear, the Legislature may have made such provisions as will in its judgment protect infants from injuries- caused by the negligence of single individuals. The regulations here considered are the means adopted by the law making power of the State to accomplish a — 270 — public purpose under the police power, viz: affording a remedy for a negligent injury; and even if deemed unwise or imperfect, such means are not to be condemned or disregarded by the courts, since they are not forbidden by paramount law and have a proper relation to the purpose designed, and they are applicable alike to all persons who are associated together as a corporation or as a private association of persons, so that the regulations in the particulars considered do not deny to any one due process of law or the equal protection of the laws in violation of the State and Federal Constitutions. See Rosenthal v. N. Y. —, U. S. —, 33 Sup. Ct. Rep. 27; Chicago, R. I. & P. Ry. Co. v. State of Arkansas, 219 U. S. 453; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61; Provident Institution for Savings v. Malone, Attorney General of the Commonwealth of Massachusetts, 221 U. S. 660; Keeney as Adm’r. v. Comptroller of the State of New York, 222 U. S. 525; Finley v. People of the State of California, 222 U. S. 28; King Lumber & Mfg. Co. v. Atlantic Coast Line R. Co., 58 Fla. 292, 50 South. Rep. 509; Peninsular Industrial Ins. Co. v. State, 61 Fla. 376, 55 South. Rep. 398; Taylor v. Prairie Pebble Phosphate Co., 61 Fla. 455, 54 South. Rep. 904; Goldstein v. Maloney, 62 Fla. 198, 57 South. Rep. 342; Fidelity Mut. Life Ass’n. v. Mettler, 185 U. S. 308, 22 Sup. Ct. Rep. 662; Patterson v. State, - Olda. —, 124 Pac. Rep. 942; Consumers’ League of Colorado v. Colorado & S. Ry. Co., — Colo. — , 125 Pac. Rep. 577; Louisville & N. R. Co. v. Melton, 218 U. S. 36; Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. Rep. 357. The decision in Smith v. Louisville & N. R. Co., 75 Ala. 449, was by a divided court,, and does not appear to be in accord with the later decisions of the Supreme Court of the United States upon a subject as to which the latter court is the final arbiter. See Smith v. Woolf, 160 Ala. — 271 — 644, 49 South. Rep. 395, where more liberal rules are announced. In Ballard v. Mississippi Cotton Oil Co., 81 Miss. 507, 34 South, Rep. 583, the classification was confined to corporations and did not include other associations of persons. See Mobile, J. & K. C. E. Co. v. Hicks, 91 Miss. 273, 46 South. Rep. 360, affirmed in Mobile, J. & K. C. R. Co. v. Turnipseed, Adm’r. 219 U. S. 35. In Seaboard Air Line Railway v. Simon, 56 Fla. 545, 47 South. Rep. 1001, 20 L. R. A. (N. S.) 126, the regulation was held to be not justly applicable only to railroad common carriers. A duly enacted statute may authorize damages for mental pain and suffering of the plaintiff to be assessed by a jury without limiting or restricting the amount that may be so assessed. Such a proceeding is not a denial of due process of law within the meaning of the organic law on that subject. Due process of law is observed when the governmental action taken is in substantial accord with the principles which require that the official or tribunal that undertakes or assumes, to determine the rights of parties or to impose or enforce governmental burdens or regulations, shall have jurisdiction or the right and power to act in the premises; that unless duly waived or not required there shall be appropriate notice to and a reasonable opportunity for a full hearing given to the parties at some stage of the proceedings before final judgment or conclusive .action is taken; that the notice shall have fair reference to the proceeding to be had and shall correspond to the hearing; that the proceedings shall not violate any fundamental rights and shall be in substantial compliance with general principles of law; that the judgment rendered or action taken shall be appropriate to the notice — 272 — and the procedings and be in accord with the law and the evidence; and that the enforcement of the judgment or action taken shall be in accordance with law. Ordinarily due process of law is an observance of those general rules established in the law for the security of private rights. The statute gives the elements of the damages that may be assessed. Other provisions and principles of law govern the amount to be determined by the jury from the evidence under appropriate instruction from the court as to the law applicable to the evidence; and the verdict rendered is subject to approval by the trial court and to such appellate review as may be provided by law for the correction of material and prejudicial errors, if any occur in the trial of the cause. See 2 Sedgwick on Damages (9th ed.) §582. The other grounds of the demurrer do not merit discussion here since, though the declaration is unduly prolix and contains many unnecessary allegations, it does state a cause of action. As to the necessary allegations in an action for a negligent injury, see Warfield v. Hepburn, 62 Fla. 409, 57 South. Rep. 618. The judgment is reversed and the cause is remanded for appropriate procedings. Taylor, J., concurs. Hocker, J., concurring. I am of opinion that Section 3147 of the General Statutes of 1906, is not unconstitutional because of the omission by the Revisors of the word “individual” in the first clause of the section imposing liability for the — 273 — wrongful act, negligence, carelessness,or default of any private association of persons, corporations, etc. The last part of the section does permit the father or mother to maintain an action for the loss of services of a minor child, and for mental pain and suffering, etc., against “such individual.” What do the words “such individual” mean in this connection? It seems to me we are obliged to resort to the original act which was revised, to discover the meaning of these words. The first section of Chapter 4722 Acts of 1899, as it was enrolled, is the statute that was revised. It reads as follows: “Whenever the death of any minor child shall be caused by the wrongful act, negligence, carelessness or default negligence carelessness or default of any individual or by the wrongful act, negligence of any private association of persons or by the wrongful act, negligence,” etc.,. (¥o.r the rest of the enrolled act see the main opinion.) It seems to me that in leaving the phrase “such individual” in the latter part of section 3147, Gen. Stats, of 1906, the Revisors have created an ambiguity, and that it is therefore proper to go back to the original- enrolled act for an explanation of this section. It seems to me that the Revisors did not intend to cut out the liability of individuals, or else they would have omitted the word individual from the last as well as the first part of the section. The omission in the first part of the act was clearly a mistake. I am therefore of the opinion that it is necessary to read it back into section 3147 Gen. Stats, of 1906, to express the intent of the Legislature. This relieves the section of all question as to an improper classification and as to its unconstitutionality on that ground. 2 Lewis’ Sutherland Statutory Construction (2nd ed.) Sections 376, 450, 451; Quin v. O’Keeffe, 10 Irish C. L. Rep. 393; Brinsfield v. Carter, 2 Ga. 143; 36 Cyc. 1127.