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 continuоusly 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 immеdiately 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 thе 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,
“"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 рart 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.,
“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 princiрal 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 exрressed 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,
“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 рossible 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, оr 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,
“Is it true that this is the sensе 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 affаirs 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.,
This court, in construing our exemption statute in Stewart v. McClung,
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 nеcessity 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.