Turner v. Tylee Land & Timber Co.

259 Mo. 15 | Mo. | 1914

OPINION.

BOND, J.

(After stating the facts as above.) — We cannot take jurisdiction pf this appeal unless some constitutional question was validly raised on the trial and undecided by us at the date of the appeal, since the amount in dispute is within the appellate jurisdiction of the St. Louis Court of Appeals, in whose territorial jurisdiction the judgment was rendered. [Dickey v. Holmes, 208 Mo. 664.]

The section of the statute in vogue when the cause of action arose was first enacted in 1891. [Laws 1891, p. 159.] It has been upon the statute books with the slight addition contained in the present revision (R. S. 1909, sec. 7828) for a little less than a quarter of a century. Its beneficent character and general constitutionality were commended and affirmed by Gantt, J., speaking for Division Two in 1901. “The constitutionality of such laws is no longer in doubt. Laws like this, created for the safety of those whose necessity compels them to submit to hazards which they would otherwise be unwilling to assume, have been sustained in all the States of the Union, such as provisions for fire escapes, inspection of boilers, ventilation of mines, and for covering and otherwise protecting machinery. [Durant v. Lexington Coal Co., 97 Mo. 62; People ex rel. v. Warden City Prison, 144 N. Y. 529; People v. Smith, 108 Mich. 531.]” [Lore v. Am. Mfg. Co., 160 Mo. l. c. 622.]

Again, in Lohmeyer v. Cordage Co., 214 Mo. 685, decided in 1908, constitutional objections similar to these in the present case were urged in the fourteenth ground of a motion for a new trial. [Special Legislation, 14th Amendment, U. S. Const., and want of due process.] And this Division, while holding that such objections were not properly preserved, yet” adopted and reaffirmed the language above quoted as an answer to the contentions.

Each of these two cases, in the respective divisions of this court, had put at rest any question as to the validity of the particular section of the factory act upon which this suit was based, before the taking of the present appeal. It is evident that the case of Williams v. Railroad, 233 Mo. l. c. 682, cited by appellant, does not aid its contention that the section involved in this case is unconstitutional. That case did not refer to the section under review here at all. The suit there was not based on the section now invoked for the constitutionality of this section had been previously determined as shown above. [See dissenting opinion in Simpson v. Iron Works, 249 Mo. l. c. 397.] The Williams case referred only to a provision of the factory act which related to railway structures. Necessarily its ruling in that respect had no bearing on the constitutionality of the distinct and independent section requiring the guarding of machinery in manufactures and mechanical establishments, which was the basic idea of the factory act and has been uniformly upheld and enforced in this court (Huss v. Bakery Co., 210 Mo. 44; Simpson v. Iron Works, 249 Mo. l. c. 391) and in the court of appeals (Colliott v. Am. Mfg. Co., 71 Mo. App. 163; Lohmeyer v. Cordage Co., 137 Mo. App. 624).

Our conclusion is that the constitutionality of the section under which the present action is framed was not an open question when defendant took its appeal from the judgment of the trial court, and the cause is therefore transferred to the St. Louis Court of Appeals.

All concur.