Aylward v. Industrial Commission

The following opinion was filed December 3, 1929 : Rosenberry, C. J. Normal compensation in this case has been paid. The question presented here is whether or not the claimants are entitled to increased compensation by reason of the fact that the deceased Arthur L. Lemke was employed without a permit, and that in turn depends upon whether or not a minor between the age of fourteen and seventeen years is required to have a permit in order to be lawfully employed in digging a sewer. Sec. 102.09 (7), Stats. 1925, provides in part: “When the injury is sustained by a minor illegally employed, compensation and death benefits, as provided in sections 102.03 to 102.35, shall be as follows: “(a) Double the amount otherwise recoverable, if the injured employee is a minor of permit age, and at the time — 173 — of the accident is employed, required, suffered or permitted to work without a written permit issued pursuant to section 103.05, except as provided in paragraph (b).” Sec. 103.05 (4) (a), Stats. 1925, provides in part: “No child between the ages of fourteen and seventeen years unless indentured as an apprentice, as provided in section 106.01 of the statutes, shall be employed, or permitted to work at any time in any factory, workshop, store, hotel, restaurant, bakery, mercantile establishment, laundry, tele- ' graph, telephone or public messenger service, or the delivery of any merchandise, or at any gainful occupation, or employment, directly or indirectly, or, in cities wherein a vocational school is maintained, in domestic service other than casual employment in such service, unless there is first obtained ... a written permit authorizing the employment of such child in such employment within such time or times as the said industrial commission or a judge or other person designated by said commission may fix; , , , ” Sec. 103.05 (1), Stats. 1925, provides: “The terms . . . ‘employment’ ... as used in sections 103.05 to 103.15, inclusive, shall be construed as defined in section 101.01 of the statutes.” Sec. 101.01 (2), Stats. 1925, provides: “The term ‘employment’ shall mean and include any trade, occupation or process of manufacture, or any method of carrying on such trade, occupation, or process of manufacture in which any person may be engaged, except in such private domestic service or agricultural pursuits as do not involve the use of mechanical power.” The specific question is, Does employment in the digging of a sewer come within the term “any gainful occupation” as used in par. (a) of sub. (4) of sec. 103.05, Stats. 1925 ? Looking at the statute as it stands and applying the ordinary rule of construction, we should be obliged to interpret it “or at any other gainful occupation,” etc., applying the rule of noscitur a sociis. But the history of the statute which — 174 — should be considered in its construction leads to a puzzling situation. In sec. 103.05 (4) (b), immediately following the section using the language “gainful occupation,” we find the following: “No child under the age of fourteen years shall be employed, or permitted to work at any gainful occupation or employment, except that during the vacation of the public or equivalent school in the town, village or city where any child between the ages of twelve and fourteen years resides, it may be employed in any store, office, mercantile establishment, warehouse, telegraph, telephone or public messenger service, in the town, village or city where it resides and not elsewhere; provided that it shall have first obtained a permit in the same manner and under the same conditions as prescribed in paragraph (a) of subsection (4) of this section.” Here the legislature used the words “gainful occupation” in an all-inclusive sense, making no enumeration of occupations. Sec. 103.05 (4) (a) first appeared-as ch. 519, sec. 9, of the Laws of 1889: “No child under thirteen years of age shall be employed or allowed to work by any person, company, firm or corporation at labor or service in any shop, factory, mine, store, place of manufacture, business or amusement except as hereinafter provided.” Ch. 109, sec. 1, of the Laws of 1891 provided: “No child under fourteen years of age shall be employed at labor or service in any mine, factory, workshop or place of public entertainment or amusement, in this state, except upon permit as hereinafter provided.” It is to be noted that the words “place of public entertainment” have been added and “store, place of manufacture, business” have been dropped from the statute. Ch. 274, sec. 1, of the Laws of 1899 provided: “No child under fourteen years of age shall be employed at any time in any factory or workshop or in or about any — 175 — mine. No such child shall be employed in any mercantile establishment, laundry or in the telegraph, telephone or public messenger service, except during the vacation of the public schools in the town, district or city where such child is employed.” Ch. 349, sec. 1, of the Laws of 1903 provided: “No child between the ages of fourteen and sixteen years shall be employed at any time in any factory or workshop, bowling alley, bar room, beer garden, in or about any mine, store, office, hotel, mercantile establishment, laundry, telegraph, telephone, public messenger service or work for wages at any gainful occupation at any place, unless there is first obtained ... a written permit.” Here for the first time the words “gainful occupation” appear in this section. Instead of using these words in an all-inclusive sense as they were used in sec. 103.05 (4) (b), the legislature enumerates and adds eleven specific employments which would certainly otherwise have been included under the term “gainful occupation” and omits the words “or place of public entertainment or amusement” which appear in the Statutes of 1898, being ch. 109 of the Laws of 1891, which would have been included in “gainful occupation.” Did the legislature intend to leave them out and put them in by the same act? Ch. 338 of the Laws of 1909, after the words “or at any gainful occupation,” added the words “directly or indirectly.” This chapter, however, omitted the words “for wages at any place” and also omitted the words “bar room, beer garden, office.” The argument is that if the legislature intended the words “any gainful occupation” to include all employments, why should it enumerate any number of occupations and exclude several occupations which had been in the statutes before? Ch. 479, sec. 1, of the Laws of 1911 provided: “No child between the ages of fourteen and sixteen years shall be employed, required, suffered or permitted to work — 176 — at any time in any factory or workshop, store, hotel, restaurant, bakery, mercantile establishment, laundry, telegraph, telephone or public messenger service, or the delivery of any merchandise or at any gainful occupation, or employment, directly or indirectly, unless there is first obtained ... a written permit.” Here the words “bowling alley and mine” are omitted, and although the words “gainful occupation” are used, the legislature adds to the former enumeration “restaurant, bakery, or the delivery of any merchandise,” which it is argued would indicate the legislative intent to require- a permit in those employments specifically designated and not in other gainful occupations. Ch. 674 of the Laws of 1917 amended the prior enactment by adding after the word “indirectly” the following: “or, in cities wherein a vocational school is maintained, in domestic service other than casual employment in such service.” If the statute prior to 1917 did not require permits in all gainful occupations, it is difficult to see the purpose of the 1917 amendment because domestic service was not one of the enumerated occupations. By ch. 434 of the Laws of 1921, sec. 1728a was added— now sec. 103.05 (6) (d) — which specifically exempted children employed in agricultural pursuits from the necessity of securing a permit before being allowed to engage in such work, from which it is argued that the words “gainful occupation” include other employments than those specifically enumerated, otherwise it was not necessary to create by legislative enactment the exception by ch. 434 of the Laws of 1921. It is further persuasively argued that the general purpose of the law was to protect child life and prevent exposure to risks and hazards such as those to which the deceased in this case was exposed, without first having the matter passed upon by public authority, and that the employment of sewer digging certainly is much more dangerous than many of the — 177 — specific employments enumerated, and for that reason and to give effect to the legislative intent the words “gainful occupation” should be so construed as to include the employment of sewer digging. To that there is the reply that the legislature had all of those considerations before it, yet when it enacted the law for minors under fourteen years .of age it used the words in an all-inclusive sense. Had it intended to use the words in the same sense in the section under consideration there would have been no necessity for an enumeration and that therefore they must have been used in a different sense. These and other considerations leave the members of the court sitting equally divided as to the legislative purpose, and the judgment appealed from must therefore be affirmed. We have indicated the difficulties which are presented in the construction of this statute with the hope that the legislature will at the first opportunity clarify it. By the Court. — Judgment affirmed. The following opinion was filed June 23, 1930: