| Ark. | Jun 15, 1908
(after stating the. facts.) The questions are presented on-appeal: Does the act apply to the conditions shown to exist at Van Burén? Does the act violate the Constitution of the United States or the Constitution of Arkansas ?
I. The jury found, and correctly, under the facts, that the work done at Van Burén on the repair tracks was such as was contemplated by the act. The use of the word “permanent” in the act is inapt. The first use of it, “where such work is permanently done,” means “constantly”; and “constant” is one of its synonyms. The second use of it, “all men permanently employed” in the repair of cars, is equivalent to “all men regularly employed.” Taking the act as a- whole, and reading it in connection with its title and the evident purpose thereof, its meaning is reasonably clear. It is the duty of the court to disregard inapt words used and to enforce it according to its intent gathered from the whole act, and not from any particular word or words therein. Even if the literal use of the word “permanent” is accepted, the work done at Van Burén is within it, for repairs which were made there were usually as permanent as those made elsewhere. For instance, as one of the witnesses illustrated, if a sill was put in, it was as permanent as if done at Baring Cross. But this literal interpretation was not intended by the Legislature.
II. Was the act constitutional? The contention of counsel is thus stated: “A brief analysis of the act discloses its fatally arbitrary classification. It applies only to any railroad company or corporation or other persons who own, control or operate' any lines of railroad in the State of Arkansas engaged in the building, construction or repair of railroad equipment at every division point. Any other corporation or other person engaged in the building, construction or repair of railroad equipment within this State may avoid the burden imposed by this act and engage in the building, construction or repair of railroad equipment without limit and Compel those engaged 'in this work to pursue their labor without shelter during snow, sleet, rain and other inclement weather.”
'It is not shown here, as it was in Cotting v. Kansas City Stockyards Co., 183 U.S. 79" date_filed="1901-11-25" court="SCOTUS" case_name="Cotting v. Kansas City Stock Yards Co.">183 U. S. 79, that as a matter of fact the law operated only upon one corporation, although others in like and similar conditions were not affected by it, owing to a classification based entirely upon volume of business. Nor was it shown here, as in Yick Wo v. Hopkins, 118 U.S. 356" date_filed="1886-05-10" court="SCOTUS" case_name="Yick Wo v. Hopkins">118 U. S. 356, that, although fair on its face, yet the practical operation of the law made it fall unequally upon persons' similarly situated.
The contention here is that the act shows upon its face an arbitrary selection of railroad corporations who own, control and operate lines of railroad in the State, engaged in the building, construction or repair of railroad equipment at division points to bear the burden imposed, and excludes by this selection any other persons or corporations who may be engaged in the construction, building or repairing of railroad equipment. It is stated at the bar that there are no such corporations or persons engaged in such business in this State, and, so far as the court knows from such sources as it is proper for it to take information from, this statement is true. It is asserted, and probably the court could take cognizance of it as a matter of common knowledge, that there are persons and corporations in other States engaged in the building, construction and repair of rail-road equipment who do not own or operate any lines of railroad.
The argument is that, under this act, it, is possible for a commercial corporation or private individual to engage in this business in Arkansas, and when that happens, which may occur at any time, then the act will fall unequally upon persons similarly situated and engaged in like occupations, and thereby be offensive to the equal protection of the law provision.
The court in Williams v. State, 85 Ark. 464" date_filed="1908-03-09" court="Ark." case_name="Williams v. State">85 Ark. 464, 471, said: “The Legislature, in framing this statute, met a condition which existed, and not an imaginary or improbable one.” While it is not improbable that some commercial • corporation may engage in this business in this State, yet that is a supposed and imaginary objection to the operation of the act, and it was “a condition, not a theory,” which called forth this legislation.
The Supreme Court of the United States, in Ozan Lumber Co. v. Union County Bank, 207 U.S. 251" date_filed="1907-12-02" court="SCOTUS" case_name="Ozan Lumber Co. v. Union County Nat. Bank of Liberty">207 U. S. 251, in referring to a statute of this State which exempted from its terms “merchants and dealers who sell patented things in the usual course of business,” said:
“Exceptional and rare cases, not arising out of the sale of patented things in the ordinary way, may be imagined where the general classification separating the merchants and dealers from the rest of the people might be regarded as not sufficiently comprehensive, because in such unforeseen, unusual and exceptional cases the people affected by the statute ought, in strictness, to have been included in the exception. See opinion of circuit court herein, 127 Fed. Rep., supra. But we do not think the statute should be condemned on that account. It is because such imaginary and unforeseen cases are so rare and exceptional as to have been overlooked that the general classification ought not to be rendered invalid. In such case there is really no substantial denial of the equal protection of the laws within the meaning of the amendment.
“It is almost impossible, in some matters, to foresee and provide for every imaginable and exceptional case, and a legislature ought not to be required to do so at the risk of having its legislation declared void, although appropriate and proper upon the general subject upon which such legislation is to act, so long as there is no substantial and fair ground to say that the statute makes an unreasonable and unfounded general classification, and thereby denies to any person the equal protection of the laws.”
The difference between the classification which does not cover every supposed case, and yet is valid, and one where the classification 'applies to a large number of people in like and similar conditions, and is consequently invalid, is well illustrated in the Ozan Lumber Company case and Connolly v. Union Sewer Pipe Co., 184 U.S. 540" date_filed="1902-03-10" court="SCOTUS" case_name="Connolly v. Union Sewer Pipe Co.">184 U. S. 540.
“There is no objection to legislation being confined to a peculiar and well defined class of perils, and it is not necessary that they should be perils which are shared by the public, if they concern the body of citizens engaged in a particular work.” Minn. Iron Co. v. Kline, 199 U.S. 593" date_filed="1905-12-18" court="SCOTUS" case_name="Minnesota Iron Co. v. Kline">199 U. S. 593. Illustrating and applying this principle, see Holden v. Hardy, 169 U.S. 366" date_filed="1898-02-28" court="SCOTUS" case_name="Holden v. Hardy">169 U. S. 366; Missouri Pac. Ry. Co. v. Mackey, 127 U.S. 205" date_filed="1888-04-23" court="SCOTUS" case_name="Missouri Pacific Railway Co. v. MacKey">127 U. S. 205; Minneapolis & St. L. Ry. Co. v. Beckwith, 129 U.S. 26" date_filed="1889-01-07" court="SCOTUS" case_name="Minneapolis & St. Louis Railway Co. v. Beckwith">129 U. S. 26.
The court is unable to find the classification here made offensive to the equality clause of the Constitution as construed by the Supreme Court of the United States, whose decisions are binding on this subject.
It is also contended that the act is void on account of the unreasonable penalties provided for its violation, and the recent case of Ex parte Young, decided by the Supreme Court of the United States on March 3d, is cited to sustain it. See 209 U.S. 123" date_filed="1908-03-23" court="SCOTUS" case_name="Ex Parte Young">209 U. S. 123. An examination of the act there condemned and the act here will show the entire inapplicability of the doctrine there announced.
The judgment is affirmed.