145 P. 647 | Or. | 1915
delivered the opinion of the court.
“No person shall he employed in any mill, factory or manufacturing establishment in this state more than*402 ten hours in any one day, except watchmen and employees when engaged in making necessary repairs, or in case of emergency, where life or property is in imminent danger; provided, however, employees may work overtime not to exceed three hours in any one day, conditioned that payment be made for said overtime at the rate of time and one half the regular wage.”
The question for determination is whether or not the defendant is guilty of the violation of this statute upon the facts as stipulated and found by the court. The findings of fact of the trial court have the force and effect of a jury’s verdict, and it is necessary only to examine the conclusion of law deduced therefrom. The question arises as to the construction of the words “necessary repairs.” If it was the legislative intent that necessary repair work should not be included in those employments which when continued for more than ten hours were denounced by the legislature, then the defendant is not guilty. In the brief of the Attorney General the case is stated thus:
“If the phrase ‘necessary repairs,’ as there used, means the usual and ordinary repairs regularly and continuously required in all mills, factories and manufacturing establishments to keep the machinery and equipment in that good working order which is necessary for their most economical operation, "William Harvey was within the exception of the statute; the provision requiring the payment of time and one half the regular wage for all time worked in excess of ten hours was inoperative (as to him), and the conviction of the defendant for his failure and refusal so to pay Harvey must be set aside. On the other hand, if the phrase ‘necessary repairs,’ as used in the section quoted, means only such repairs as are indispensable to the immediate and continued operation of a mill, factory, or manufacturing establishment, and for the*403 want of which snch mill, factory, or manufacturing establishment would immediately be forced to close down and cease operations entirely, William Harvey was not within the exception of the statute. * * ”
The cardinal point in the construction of a statute is to ascertain the intention of the legislature. Such intention and the object aimed at controls the literal interpretation of particular language in a statute, and an expression capable of more than one meaning must be taken in the sense harmonizing with such intent: State v. Simon, 20 Or. 365 (26 Pac. 170); Northern Counties Trust v. Sears, 30 Or. 388 (41 Pac. 931, 35 L. R. A. 188); 26 Am. & Eng. Ency. Law (2 ed.), 597. By' the first general rule of statutory construction- we are not permitted to interpret that which has no need of interpretation. It is only when the act in question is of doubtful or ambiguous meaning that the province of construction or interpretation begins: 26 Am. & Eng. Ency. Law (2 ed.), 597, 598; Hamilton v. Rathbone, 175 U. S. 421 (44 L. Ed. 219, 20 Sup. Ct. Rep. 155). It was held by this court in Dutro v. Ladd, 50 Or. 120 (91 Pac. 459), that, when the language of a statute is clear and unambiguous, the court should declare the meaning imported, and not resort to rules of construction for some other meaning. Prom a review of the statute it would seem that there is no necessity for applying to it any of the rules of construction. The language is plain and unambiguous, and should be applied according to its obvious meaning without the application of any of the artificial rules of construction. Prom the whole context it appears that the law inhibits generally employing a person in a mill, factory, or manufacturing establishment more than ten hours in one day. Excepted from this provision are: (1) watchmen; (2) employees when engaged in
“"When the technical terms are used with techincal precision, the distinction between a proviso and an exception is this: An exception exempts absolutely from the operation of an enactment, while a proviso defeats its operation conditionally. An exception takes out of an enactment something which would otherwise be part of the subject matter of it; a .proviso avoids it by way of defeasance or excuse. There is also a well-known distinction between an exception in the purview of the act and a proviso in this respect. If there be an exception in the enacting clause of a statute, it must be negatived in pleading, but a separate proviso need not be, and that although it is found in the same section of the act, if it be not referred to and engrafted on the enacting clause.”
In Campbell v. Jackman Bros., 140 Iowa, 475 (118 N. W. 755, 27 L. R. A. (N. S.) 288), a case involving the construction of the liquor laws of the State of Iowa, in which it was insisted that in the use of an exception it should not receive a construction that
“The effect of any sweeping general statutory provision which is followed by, or coupled with, an express exception naturally and necessarily depends upon the nature and extent of the exception, and, if this be of such character as to emasculate the principal clause or render any of its terms meaningless, the courts are nevertheless required to give effect to such exception, whatever they may think of the candor or want of candor which controlled the phraseology of the law. * * The office of an exception in the statute is, generally speaking, to take or exclude from the operation of the statute certain things or subjects which would otherwise be included therein (see Bouvier’s Law Dictionary), and, where the exception is clearly expressed and is within the constitutional power of the legislature, those wh'o question its justice, wisdom, or policy must seek the remedy at the hands of the legislature itself.”
The Supreme Court of Oklahoma, in Leader Printing Co. v. Nicholas, 6 Okl. 302 (50 Pac. 1001), in de-. termining the effect of a double exception, held that a double exception or proviso which is capable of two constructions, the one of which would render the use of the first exception meaningless, and the other of which would give effect to both exceptions, should receive a construction that would give effect to both. In the case under consideration, if the legislature had intended to require the payment of time and one half for overtime to employees engaged in necessary repair work, there would have been no need to have included in the section the words ‘ ‘ except watchmen and employees when engaged, in making necessary repairs,” for the reason that the proviso for time and one half coveréd every class of employment in a mill, factory or manufacturing establishment. In other
“The office of a proviso, generally, is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it, as extending to cases not intended by the legislature to be brought within its purview.”
The word “necessary” must be construed in the connection in which it is used. It is a word susceptible of various meanings. It may import absolute physical necessity, or that which is only convenient or useful or essential: 5 Words and Phrases, p. 4705. The courts have many times construed the word “necessary,” and it has almost universally been held to mean needful or convenient; especially is this the case where the word is used in conjunction with other and stronger terms. In McCulloch v. Maryland, 4 Wheat. 413 (4 L. Ed. 579), Mr. Chief Justice Marshall, holding the authority vested in the United States Congress to pass necessary laws to carry into effect the powers granted to that body, had the following to say in regard to the meaning of the word “necessary”:
“Is it true that this is the sense in which the word ‘necessary’ is. always used? Does it always import an absolute physical necessity so strong that one thing to which another may be termed necessary cannot exist without that other? We think it does not. If*407 reference be had to its nse, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or, useful, or essential to another. * * ”
See, also, People v. Mauran, 5 Denio (N. Y.), 389; Nicoll v. New York & E. R. Co., 12 N. Y. 121; Northern Pac. Ry. Co. v. McAdow, 44 Mont. 547 (121 Pac. 473); Butte A. & P. Ry. Co. v. Montana, U. Ry. Co., 16 Mont. 504 (41 Pac. 232, 50 Am. St. Rep. 508, 31 L. R. A. 298); Chicago, I & L. Ry. Co. v. Baugh, 175 Pad. 419 (94 N. E. 571, 573).
This court, in construing our exemption statute in Stewart v. McClung, 12 Or. 431 (8 Pac. 447, 53 Am. Rep. 374), held that the exemption from execution of the “necessary wearing apparel owned by any person to the value of one hundred dollars” does not mean that it is such apparel as is indispensable, but that necessary means convenient and comfortable: Kinser Const. Co. v. State, 204 N. Y. 381 (97 N. E. 871).
It is contended by counsel for the state that necessary repairs can only mean those extreme cases in which failure to repair machinery .would tie up the plant or imperil life; that the labor ordinarily and daily employed in maintaining reasonable efficiency was not intended to be excluded from the application of the act. With this contention we are not able to agree. We cannot believe from the language of the act that the lawmakers intended that, in the trial of eases for an alleged infraction of the statute, an issue should be litigated in regard to which different minds might disagree as to the necessity of making repairs; but, rather, that the word “necessary” is used to prevent the matter of making of repairs from being used as a subterfuge to defeat the purpose of the law; that is, according to the legislative intent, “necessary re
The judgment of the lower court will therefore be reversed and the defendant discharged.
Reversed. Dependant Discharged.
