Patten v. Aluminum Castings Co. (105 Ohio St. 1, 1921)

Jones, J.

Section 35, Article II of the Ohio Constitution adopted September 3,1912, contains a provision that for the purpose of providing compensation to workmen for injuries occasioned in the course of their employment laws should be passed establishing a state fund to be created by compulsory contribution thereto by employers, which fund should be administered by the state; and that any or all rights of action or defenses might be taken away from employes and employers, but that no right of action should be taken away from any employe when the injury arose “from failure of the employer to comply with any lawful requirement for the protection of the lives, health and safety of employes.”

In conformity with this provision of the constitution the legislature passed what is now known as the Workmen’s Compensation Law. Complying with the constitutional provision quoted it passed Section. 1465-76, General Code (103 O. L., 84, amended 104 O. L., 194), which was in force at the time this accident occurred. Briefly stated this section provides that where a personal injury is suffered by an employe while in the course of his employment, and his employer has paid into the state insurance fund the premium provided for in the act, or is authorized directly to compensate such employe in compliance with the Workmen’s Compensation, Law, and in case such injury arises “from the wilful act of such employer or any of such employer’s officers or agents, or from the failure of such employer or any of such employer’s officers or agents to comply ivith cmy lawful requirement for the protection of the lives and safety of employees,” then, in such event, the civil liability of such employer shall not be affected, hut the injured employe may, at his option either claim compensation from the state fund or institute proceedings for damages on account of his injuries. It also provides that such employer shall not be liable for any injury to any employe except as provided in that section.

It is conceded by the record that the defendant in error had complied with all the provisions of the so-called Workmen’s C.ompensation Law. Under the section named the employer, therefore, obtained immunity from suit against it for personal injuries suffered by its employe in the course of his employment, unless the injury was occasioned by the employer’s failure to observe a lawful requirement within the meaning of the provisions of the constitution and the law enacted in pursuance thereto.

In this case Patten, the employe, claims that the employer did not comply with a lawful requirement, as provided in Section 1465-76, General Code, because it failed to observe the provisions of Section 12593, General Code. That section reads as follows: “Whoever, employing or directing another to do or perform labor in. erecting, repairing, altering or painting a house, building or other structure, knowingly or negligently furnishes, erects or causes to be furnished for erection for and in the performance of said labor unsuitable or improper seaf - folding, hoists, stays, ladders or other mechanical ■ contrivances which will not give proper protection to the life and limb of a person so employed'or engaged, shall be fined not more than five hundred dollars or imprisoned not more than three months; or both. ’ ’

It will appear from the allegations of the petition that the gravamen of the defendant’s negligence was in furnishing “unsuitable and improper scaffolding” which did not give proper ■ protection to life and limb; in providing and furnishing a plank which was worn and defective and wholly improper and unsuitable for the purpose for which it was to be used; and in failing adequately and properly to secure, support and brace said scaffolding so that the same would give proper protection to the life and limb of the plaintiff while using it.

We are, therefore, faced at the ouset with the duty of determining whether the statute quoted is a “lawful requirement.” It must be considered in this connection, that if plaintiff in error’s claim is sound, Section 12593, General Code, not only imposes a civil liability upon an employer who has fully complied with the workmen’s compensation law, but also imposes a penalty for failing to observe its provisions. And whether considered from its civil or criminal side, the law undoubtedly would impose, in either case, a drastic liability upon the employer. If considered from a civil angle, it means that although an employer has fully complied with the Workmen’s Compensation Law and paid his premiums into the state fund he may still be liable for damages at the option of the employe; if considered from the criminal angle, that if the statute quoted is such as contended for by counsel for plaintiff in error the employer is subject to a fine of not more than $500 or imprisonment for not more than three months, or both.

The arguments of counsel amount- to this. It is., urged by counsel for the defendant in error that the words of the statute imposing both civil and criminal liability are general, vague and indefinite, that to constitute a “lawful requirement” they should be sufficiently specific to advise the. employer of his exact. duty; and, on the other hand, counsel for plaintiff in error argue that while the language is general in terms it is sufficiently comprehensive to constitute “a lawful requirement” within the mean-; ing of Section 1465-76, General Code.

We are entirely unable to agree with the view of the plaintiff in error. Its application in cases of this character would produce great uncertainty and create doubtful results. How would the defendant in error be able to ascertain the exact requirement made of him as an employer in order to escape civil and criminal liability? Manifestly, it would be impossible for him to ascertain the extent of his duty, until after a jury, by its verdict, had determined that the employer had failed to provide a suitable scaffolding. What would be an “unsuitable or improper” scaffolding? The employer might endeavor honestly to conform to the provisions of the statute relating to suitableness, only to find later that a jury declared otherwise and that he had not performed his duty in that regard. Even different juries in similar cases, and upon the same facts, might not agree in their conclusion as to what would be suitable. No criterion of specific conduct is exacted by the law. No definite requirement is made. It prescribes merely a general course of conduct on the part of the employer in requiring him not to furnish scaffolding that is unsuitable and improper, and which will not give proper protection to the life and limb of the employe.

Let us take this case as a concrete example. The petition alleges that this scaffolding was approximately sixteen feet in height. Would a scaffold of that height be rendered unsuitable if it were not provided with a safety rail for the protection of the workmen? A jury might so find. On the other hand, assuming that this scaffold was two or three feet above the floor, would the same requirement of protection be required on the part of the employer? Yet under the construction of this section, as contended for by plaintiff in error, both instances might be submitted to a jury in order to determine whether or not the defendant had complied with a “lawful requirement” for the safety of his employes. It is impossible to construe the term “lawful requirement,” used in Section 1465-76, General Code, other than as a specific, definite requirement, or a standard of conduct which would advise the employer specifically of his legal obligations. Specific requirements for the safety of employes are elsewhere made in our Code, and doubtless will be made in the future as occasion requires. Originally the scaffolding act comprised both Section 12593 and Section 12594, General Code. The latter now reads as follows:

“Sec. 12594. If such scaffolding or staging as described in the next preceding section, swung or suspended from an overhead support or supports, is more tlian twenty feet from the ground floor it shall not be deemed to give proper protection to the life and limb of persons employed or engaged thereon unless, when in use, it has a safety-rail rising at least thirty-four inches above the floor or main portion extending along the outside thereof, and properly attached thereto, and is provided with braces strong enough to sustain the weight of a man’s body against it and to prevent such scaffolding or staging from swaying from the building or structure. ’ ’

The legislature has employed in this section specific methods or requirements, which, if followed, will relieve the employer from liability where the scaffolding is fastened from overhead supports and is more than twenty feet from the ground floor. Here a standard of conduct has been pointed out and the employer definitely advised wrhat the law requires to be done, else “it shall not be deemed to give proper protection to the life and limb.” There would be no necessity of passing this section relating to suspended scaffolding if reliance could be had upon the general and broad terms of the preceding section imposing upon the defendant a general course of conduct recognizable at common law. Furthermore, if the argument of counsel for plaintiff below be sound, it must be conceded that the legislature could destroy the usefulness of the Workmen’s Compensation Law by enacting a blanket section providing that employers must furnish suitable and safe places, or suitable and safe mechanical devices, in the operation of the various industries. It may not. be amiss to say here that the legislature confronted with a similar danger amended Section -1465-76, General Code (104 O. L., 194), by specifically defining the term “wilful act,” found in that section of tbe Code. Before this amendment it was found that suits were being brought upon allegations of wilful conduct or for such gross negligence as amounted to wilful conduct. ' So concerned was the legislature by reason of the insidious attack thus made in weakening the structure of the Workmen’s Compensation Law that in Febi'uary, 1914, it defined the term “wilful act,” employed in Section 1465-76, General Code, as one meaning “an act done knowingly and purposely with the direct object of injuring another.”

Notwithstanding this legislative check upon this assault upon the Workmen’s Compensation Law a smoke screen is being laid behind which another assault is now made, which is more insidious than the former, and more calculated to break down the entire Workmen’s Compensation Law. Counsel who make the attack upon the law practically concede this in their briefs. In their argument, under a topical heading, they ask: “Is there any ‘lawful requirement’ left upon the statute books of Ohio?” They answer: “There are very few such.statutes in Ohio.” Thereupon they cite-various sections of -the' Ohio code which would hamstring the Workmen’s Compensation Law, and leave only the bare skeleton for its operation.

The first attack was made in the Schorling case, supra. That attack was repulsed by a decision of this court. Of that decision the Ohio State Federation of Labor says in its brief: ‘ ‘ The wage earners of the state accepted with satisfaction the decision in the case of American Woodenware Co. v. Schorling. ”

So important is the principle involved in this case, and so momentous its effects npon the Workmen’s Compensation Law of Ohio, this court deemed it wise not only to grant a rehearing to the parties interested,. but permitted others to file briefs, pro and con, as friends of the court. The attorney general filed his brief on behalf of the state. The Ohio Manufacturers Association filed its brief on behalf of the Ohio employers, and the Ohio State Federation of Labor filed its brief on behalf of the wage-earning members of that association. Each of these filing a brief as amicus curiae, joined in asking this court to so construe the term “lawful requirement” as not to “menace the integrity of the Workmen’s Compensation Law.”

The attorney general, though conceding that the state itself is not a party, agrees that the question in this case “is of such importance and its decision will have such a vital effect upon the Ohio Workmen’s Compensation Act” that the filing of a brief by the state seemed imperative.

The Ohio Manufacturers Association concedes the great importance of the question involved, and agrees, in principle, with the legal views expressed by the Federation of Labor. Opening its argument in favor of the defendant in error the Ohio State Federation of Labor, through its counsel, says that if “The so-called ‘open liability’ * * * is to be widened to such an extent as to be tantamount to a return to the old order, in any considerable degree, it were far better to surrender and abandon it altogether.” It concedes that industry is unable to carry the double burden resulting from the two systems of compensation, and argues that “to force the employer to become an insurer for his employes and at the same time deny him immunity from civil liability for negligence is to take his property without due process of law and deny him the equal protection of the laws.” It insists that safety requirements “should be such as to reasonably advise the employer in advance as to the steps he must take and the methods he must pursue.” Finally, the Ohio State Federation of Labor in its brief says: ‘ ‘ The wage earners recognize that justice to the employers requires that ‘lawful requirements’ should be reasonably specific, and are apprehensive that to hold statutes to be such which simply enjoin care and caution in general terms would result in such a flood of litigation in the courts as that the old order, in a very considerable measure, would be restored. They deplore the possibility of such backward step.”

The interests of the Ohio Manufacturers Association and the Ohio State Federation of Labor do not always run in the same channel. Here their views coincide. We have reverted to these briefs not only as supporting the principle we announce in this case, but to show that, from a practical standpoint, their views coincide with our own, that any other construction would emasculate the present Workmen’s Compensation Law.

It is submitted that if a petition in an ordinary' action should merely allege that a defendant had negligently erected unsuitable or improper scaffolding, the court would require the plaintiff to state specifically wherein such scaffolding was unsuitable or improper. This statute Is a penal statute. If a jury found that a civil liability arose from its-viola,lion, the same or another jury might determine from the same evidence that the defendant had criminally violated the section, the only difference being that the criminal violation must be found beyond a reasonable doubt. Considering the statute from its penal side, can it be argued that its terms are sufficiently definite and certain to advise the defendant whether he has committed a criminal act? Does its criminality not depend upon the jury’s view whether such scaffolding would be unsuitable or improper?

The court of appeals reversed the instant case and entered final judgment for the defendant in error upon the authority of American Woodenware Mfg. Co. v. Schorling, 96 Ohio St., 305. There is no distinction in principle between this case and the Schorling case. In the latter, Sections 15 and 16 of the Industrial Commission Act were under consideration, and the allegations of the petition were predicated upon the failure to observe a “lawful requirement” as named in those sections. Briefly stated, the petition alleged that the defendant failed to provide a safe place to work. This court, confining itself to these two sections of the Industrial Commission Act, and to the case made in the petition, stated in proposition 2 of its syllabus: “The provisions of Sections 15 and 16 are not the lawful requirements referred to by, and within the meaning of, Section' 35, Article II of the Constitution.” The court held that these sections of the statute could be redeemed within the scheme of the Industrial Commission Act by imposing upon employers the obligation to obey “particular orders and requirements” made by the Industrial Commi'ssion. However, that feature of the case was not drawn into question by the allegations of the petition, since the petition was founded wholly upon the fact that the employer had not complied with the lawful requirement by reason of his failure to furnish a safe place to work. These sections, as does the scaffolding section in controversy, employed general terms and not specific requirements. In the third proposition of the syllabus of the Schorling case this court held: “The term ‘lawful requirement,’ as used in Section 35, Article II of the Constitution, and Section 29 of the Workmen’s Compensation Act (103 O. L., 84), does not include a general course of conduct, or those general duties and obligations of care and caution which rest upon employers and employes, and all other members of the community, for the protection of life, health and safety.”

Even orders of the commission, if made in the broad and general terms of the statute, might be ineffectual, but, as stated in the opinion in that case (page 321), if the order required “certain specific precautions to be taken and safeguards to be provided,” it would be held to be a “lawful requirement” within the meaning of Section 1465-76, General Code.

When the court of appeals certified the case upon a finding that its judgment was in conflict with the judgment of another court of appeals, it became the duty of that court to render judgment and incorporate it in its entry. Because of the reversal by the court of appeals plaintiff in error in that court was entitled to an entry of judgment. Furthermore, it is only the “judgments” of the court of appeals that this court is entitled to review. Crawford v. Weidemeyer, 93 Ohio St., 461.

Proceeding, therefore, to render the judgment the court of appeals should have rendered, this court renders judgment in favor of the defendant in error, who was plaintiff in error in the court of appeals.

Judgment for defendant in error.

Hough, Robinson and Matthias, JJ., concur.

Marshall, C. J., concurs in the judgment.

Hough, J.,

concurring. .1 adhere to the conclusion announced at the prior disposition of this case. The burden of the majority opinion upon the first hearing of the case rested largely upon the former holding of this court in the case of The American Woodevrware Mfg. Co. v. Schorting, 96 Ohio St., 305. Then, as now, the court was sharply divided, and a prompt and very forceful brief on application for rehearing was filed. The Schorling case was also decided by a divided court. One judge who dissented in that case also dissented in this. The author of the opinion in that case did not concur in the opinion of the majority in the Patten case. Because of this variety of views on the part of the members of the court, together with an appreciation of the importance of the questions argued, and with the idea, of obtaining more light upon the subject, I felt it my duty to support the application for rehearing. This was done and the case was resubmitted and re-argued, resulting in no change of position on the part of any of the members of the court.

Under such situation I deem it appropriate, in justice to myself, to briefly outline in the form of this concurring opinion my views on the issues presented.

The question to be determined is whether Section 12593, General Code, is a “lawful requirement for the protection of the lives and safety of employes,” within the meaning of Section 1465-76, General Code, and Section 35, Article II of the Constitution of Ohio as amended in 1912.

A compensation law existed in this state prior to the constitutional convention of 1912. In lieu of the term “lawful requirement,” used in the present Workmen’s Compensation Law, the former act used the clause, “any municipal ordinance or lawful order of any duly authorized officer, or any statute for the protection of the life or safety of employes.”

This court in passing upon that act, probably upon its constitutionality, used the term “lawful requirement” as descriptive of the above clause, and, then, when the constitution-makers proposed Section 35, Article II, for adoption, they borrowed the term “lawful requirement” as descriptive of that clause cf the then existing compensation law. Later the legislature adopted the term used in the constitution, and in this way the term “lawful requirement” was injected into the substantive law of this state.

Its meaning and scope is therefore derived from and limited to the language as written into the first compensation law. To be, then, within the exception of Section 29 of the Workmen’s Compensation Law (103 O. L., 84), there must be a failure to comply with some ordinance, statute, or lawful order of the commission.

If it be an order, it must be a lawful order; it must be such an order as the commission has the authority to issue; it must be reasonable,' in contradistinction to arbitrary, or one impossible of performance; and, if it be an ordinance or statute, it undoubtedly must be a valid ordinance or statute, an act having constitutional as well as effective operative power behind it.

Patten is so situated in relation to his employer that he comes within the purview of the Workmen’s Compensation Act, unless he may be taken outside its provisions by this term “lawful requirement.” It is his claim that he comes within this exception, and that Section 12593, General Code, gives him that right to so claim.

The section itself is penal in nature, but whether or not it is penally enforceable can in no way affect the question in this case. Neither is it important to determine whether it is enforceable in any degree, either for or against a party not so situated as to come within the terms of the Workmen’s Compensation Law.

I know of no reason by which the constitutionality of the act can be assailed. The argument is made that if the statute is not available to Patten in this ease, it must be unconstitutional. This is not true. A law may be in harmony with various provisions of the constitution, and yet fail to be operative, or enforceable, or applicable to a given situation.

The Schorling case, supra, decided that the term “lawful requirement” as used in Section 35, Article II of the Constitution, and Section 29 of the Workmen’s Compensation Law (103 O. L., 84), “does not include a general course of conduct, or those general duties and obligations of care and caution which rest upon employers and employes, and all other members of the community, for the protection of life, health and safety.”

This is a definite announcement of law as it exists in this state today. The court there had under consideration whether or not Sections 15 and 16 of the Industrial Commission Act (103 O. L., 95), were lawful requirements, and the court held in effect that those sections simply represented the groundwork and machinery for putting the Workmen’s Compensation Law and the Industrial Commission Act into operation. Those sections represented the authority for the commission and its duly authorized officers to issue general and special orders concerning places of employment, to secure the lives, health and safety of the employes.

The abstract proposition quoted above of course applies to the state of facts that existed in the Schorling case, and must be so construed. But, further, and beyond that case, it announced a rule of law definitely and concisely, and that rule of law is that the term “lawful requirement” as used in the constitution and in the statute does not include or refer to a cause of action that was formerly recognized as a common-law action. To my mind this is a very salutary rule, establishing a definite line of demarcation for the guidance of the general public. If a cause of action is founded on general negligence and nothing else, and the right of action accrues to one coming within the terms of the Workmen’s Compensation Law, he must look to that law for relief, and he must not take advantage of an act of the legislature on the statute books, or an ordinance, unless the terms of that act furnish him something as an element of his cause of action above and beyond the pale of that which was formerly contemplated by the common law.

In examining the elements of negligence charged in the petition, and the proof submitted thereunder in the bill of exceptions, in the present case, and analyzing both in the light of the provisions of Section 12593, General Code, I am able to find nothing over, above, or beyond a simon-pure common-law action for negligence.

If there were a specific requirement in that section, upon which was fastened an allegation of failure or refusal to comply, supported by proof, the conclusion would necessarily be different. Any other rule adopted, or position taken, would permit the Workmen’s Compensation Law to drift into an unconstitutional operation. As it stands now, its constitutionality approved by this court, and by the United States supreme court, it is a fair protection to both employer and employe, and it represents an approved policy of this state, as exemplified by the action of the legislature and the subsequent approval of this court.

My conclusion therefore is that Section 12593, General Code, for the purposes of this action is unenforceable as a lawful requirement, such as intended under the exception in Section 29 of the Workmen’s Compensation Law, and Section 35, Article II of the Constitution of Ohio. And I resent the imputation or insinuation that the provisions of the constitution are any less sacred to me or regarded in any less solemn light, by me than by any other member of this or any other court.

Maeshadl, C. J.,

dissenting. While I have styled this opinion a dissenting opinion, I wish to state at thé outset that I concur in the judgment rendered by the majority of the court in this case solely upon the ground that there is no evidence shown by the record to support the verdict and judgment.

While for that reason I concur in the judgment of the majority of this court, I dissent from the reasoning in the majority opinion.

In the majority opinion, written by Judge Jones and concurred in by Judges Matthias, Bobinson and Hough, the judgment of affirmance was directly based upon the principles declared in American Woodenware Mfg. Co. v. Schorling, 96 Ohio St., 305, and it was stated in the syllabus that the Schorling case was approved and followed.

Judge Johnson wrote the opinion in the SchorUng case, and that judgment was concurred in by all the members of the court except Judges Donahue and Wanamaker. Judge Johnson has published a dissenting opinion in this case, in which he seeks, to distinguish it from the Schorling case, but fails to convince the majority that there is any distinction in principle.

Judge Wanamaker in a vigorous opinion dissented from the judgment in the Schorling case, and in an equally vigorous opinion dissents from the judgment in the instant case. In his dissenting opinion in the instant ease he declares that the question decided in this case is identical in principle with the question decided in the Schorling case.

On the reargument of this cause, counsel for plaintiff in error employed nine pages of his printed brief in attempting to state what he believed to be the true meaning and the proper application of the principles laid down in the Schorling case. He earnestly argued, both in brief and orally, that the Schorling case, when properly construed, understood and applied, fully sustains the contentions of the plaintiff in error in this cause. Counsel for defendant in error was equally earnest in contending that the Schorling case contains sound doctrine, but that it fully sustains the contentions of the defendant in error. Counsel appearing as friends of the court, representing the Ohio State Federation of Labor, filed a brief arguing that the judgment in this cause should be affirmed upon the authority of the Schor.ling case, and expressed the fear that any different declaration of principles from the declarations contained in the Schorling case would be subversive and destructive of the Workmen’s Compensation Law. Counsel appearing as a friend of the court, on behalf of the. Ohio Manufacturers Association, filed a brief approving the Schorling case and arguing that that case was conclusive of the present controversy and that therefore the judgment should be affirmed. Other counsel having a case pending in the district court of the United States for the northern district of Ohio, and therefore interested in having this-judgment reversed, filed a brief in which it was sought to distinguish the Schorling case and to show that it was not decisive of the present controversy. A brief is also filed by the Cleveland Building Trades Council, and while in it there is no discussion of the Schorlmg case, or any other judicial authority, issue is taken with the wishes expressed by the Ohio Manufacturers Association and Ohio State Federation of Labor, and it is strongly urged by the Cleveland Building Trades Council that Section 12593, General Code, be sustained as a lawful requirement.

The foregoing narration demonstrates not only the seriousness of the state of the law concerning lawful requirements, but it also demonstrates that the efforts of this court so far have resulted in further confusing the situation, and that the Schorlmg case, as the parent case, in attempting to unravel this apparently hopeless tangle, is so little understood and has been so confusing to the bar of the state, and to the lower courts, and even to the members of this court, that its decision must be held to have rendered the situation worse instead of better. After the able reargument of this cause in this court, and after full consideration of the briefs of counsel who appeared as friends of the court, there is no change in the alignment of this court upon the judgment previously rendered. With different courts of appeals reaching different conclusions, and therefore certifying causes to this court for review, with trial courts widely differing in their rulings upon pleadings and instructions to juries, with the bar of the state arguing pro and con as to the true meaning of the Schorlmg case, and the members of this court unable to agree upon its true meaning and application, the situation is indeed confused.

In 1912, by constitutional amendment, this court was limited in its jurisdiction, and was given such measure of control over the volume of its business, and of the kind and character of the causes to be heard and determined, as to make it possible to reduce the number of cases to be heard, so that the court might keep the docket from congestion and at the same time retain full jurisdiction to authoritatively declare the law upon all important principles of law and issues arising under the Constitutions of the United States and the state of Ohio; and to declare the proper construction and interpretation of the statutes of the state of Ohio; and to declare the law upon all important questions of general law, where there is a want of uniformity in the decisions of the courts of appeals of the state of Ohio; and, finally, to declare the law upon all questions of public and great general interest. It was the spirit of that amendment to give to litigants one trial and one review, and since its adoption the primary function of this court is not to secure justice to the immediate parties; its ultimate end is to maintain uniformity of the decisions in the intermediate courts, to determine constitutional questions, and to make the law clearer for thé general public. Uniformity and simplification are the first great essentials in the interpretation, administration and enforcement of law. The simplest and therefore the best definition of law is the definition of Sir William Blackstone which declares it to be a rule of action commanding what is right and prohibiting what is wrong. “Rule” is defined to be a condition of uniformity. Law therefore uniformly commands the right and uniformly prohibits the wrong. The constitutional convention of 1851 recognized this principle in declaring that all laws of a general nature should have uniform operation throughout the state. The sound and salutary doctrine of stare decisis is as old as jurisprudence itself. It being recognized, therefore, that it is the province of this court to standardize, to clarify, to simplify and to make uniform the meaning and the application of rules of the common law, statutes.^and constitutions, what shall be said of the present situation of the subject of lawful requirements ? If six judges could agree, the offending statute could be declared unconstitutional. Where a statute is not declared unconstitutional, four judges might concur in a judgment which would settle the law as a rule of action for the guidance of the lower courts, the bar and the general public, provided the declarations of the majority were made so clear as not to be the subject of controversy. What shall be said, however, of a decision where the judge who wrote the majority opinion places a construction upon his own language which not only differs from those who concurred with him but also those who dissented from him?

Based upon the foregoing observations and measured by the foregoing standards, let us examine the situation presented by the various opinions on file in this case, and compare them with former adjudications of this court and with decisions of the supreme court of the United States.

Inasmuch as the Schorling case is the basis of the discussion in the opinions in the instant case, and also in nearly all the briefs on file, it should be stated at the outset that I disagree with the majority opinion in the Schorling case, and it seems necessary to make brief reference to it. That case involved the construction of Sections 871-15 and 871-16, General Code, and held that the purpose and intent of those sections was to bring all employers within the scope and jurisdiction of the commission, and to impose upon them the obligation to comply with the orders and requirements of the commission when made, and that the provisions of those sections are not the lawful requirements referred to by and within the meaning of Section 35, Article II of the Constitution. It was held that they are not lawful requirements, because that term does not include a general course of conduct or those general duties and obligations of care and caution which rest upon employers for the protection of life, health and safety. It is evident that the majority were of the opinion at that time that any other construction of those sections would render them unconstitutional, because on page 331 of the opinion we find the following: “It seems inconceivable that the framers of the amendment, Section 35, Article II, used the term ‘lawful requirement’ in a sense that would render the statute passed pursuant to it invalid.” No. statement fis made or opinion expressed as to what provision of the constitution would thereby be violated, rendering the statute invalid. The discussion does, however, lead to the inference that it would be invalid because of not being sufficiently specific and definite to advise parties to a criminal proceeding of the nature and cause of the accusation, and, in a civil proceeding, because it would be conferring upon courts and juries legislative powers, permitting each court and jury to fix a separate standard of conduct.

While there has been much discussion of the meaning and application of the Schorling case, it must be admitted that the third paragraph of the syllabus in that case, as elucidated by the statements on page 321 of the opinion, has caused the bench and bar generally to feel that the spirit of the Schorling case is fairly stated in the syllabus of the instant case. The inquiry is therefore resolved into the question as to how definite and specific must be the statement of a requirement to render it lawful. It is true that in the Schorling case Sections 15 and 16 of the Industrial Commission Act were not declared unconstitutional, but as that case has been understood by the bench and bar its effect is to render those sections unconstitutional. That decision was supported only by five members of thi3 court, and they were therefore powerless to declare those sections unconstitutional, and it seems reasonable to suppose therefore that if there had been six votes instead of five the Schorling case would have been disposed of in that manner.

It has been contended by those who seek to draw a distinction between the Patten case and the Schorling case that the language of Section 12593, General Code, is more definite and specific than the language in Sections 15 and 16 of the Industrial Commission Act. It is true that if Sections 15 and 16 are read without reference to any other sections, such views are well founded. But when Sections 15 and 16 are read in the light of the definition contained in paragraph 11 of Section 13, a different situation is presented. If, instead of using the word “safe” in Sections 15 and 16, we substitute the definition of that word found in Section 13, they will read as follows: “Section 871-15, Every employer shall furnish employment which shall be as free from danger to the Ufe, health, safety or welfare as the■ nature of the employment will reasonably permit for the employes therein, and shall furnish a place of employment which shall be as free from danger to the life, health, safety or welfare as the nature of the employment will reasonably permit for the employes therein, and for frequenters thereof, and shall furnish and use safety devices and safeguards causing freedom from danger to the life, health, safety or welfare of employes or frequenters as the nature of the employment will reasonably permit and shall adopt and use methods and processes, follow and obey orders and prescribe hours of labor r easonably adequate to render such employment and places of employment as free from danger to the Ufe, health, safety or welfare of employes or frequenters as the nature of the employment will reasonably permit, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employes and frequenters.”

It is unnecessary to paraphrase Section 16, because the same result would be produced.

Let us now compare the language of Section 15, paraphrased as’ above, with the language of Section 12593, to determine whether the latter section is more definite and specific than the former:

“Sec. 12593. Whoever, employing or directing another to do or perform labor in erecting, repairing, altering or painting a house, building or other structure, knowingly or negligently furnishes, erects or eauses to be furnished for erection for and in the performance of said labor unsuitáble or improper scaffolding, hoists, stays, ladders or other mechanical contrivances which will not give proper protection to the life and limb of a person so employed or engaged, shall be fined not more than five hundred dollars or imprisoned not more than three months, or both.”

It is apparent that the difference, if any, is clearly favorable to Sections 15 and 16.

The error in the SchorUng case is further emphasized, and the difficult situation thereby rendered further intensified, when it is pointed out that the Schorling case was decided May 22, 1917, and that at the same term of this court, on April 17, 1917, the case of State v. Schaeffer, 96 Ohio St., 215, wa's decided, in which Judges Nichols, Jones, Matthias, Newman, Johnson and Wanamaker concurred, holding that a charge of manslaughter can be predicated upon a violation of Section 12603, General Code, the pertinent language of which is as follows: “Whoever operates a motor vehicle * * * at a speed greater than is reasonable or proper, having regard for width, traffic, use and the general and usual rules of such road or highway, or so as to endanger the property, life or limb of any person. ”

A stricter rule, so far as being definite and specific is concerned, is necessarily required in a criminal prosecution, because of the constitutional requirement that a person has a right to be advised of the nature and cause of the accusation against him.

We further point out that on March 6, 1917, the case of Neave Bldg. Co. v. Roudebush, Admr., 96 Ohio St., 40, was decided by the concurrence of Judges Nichols, Wanamaker, Johnson and Newman, and in that case a negligence suit was predicated upon an ordinance of the city of Cincinnati as follows: “In every fireproof or semi-fireproof building now in existence or hereafter erected every window above the second story thereof shall be equipped with a suitable device which will permit the cleaning of the exterior of such windows without endangering life and limb. Provided, however, that such device need not be placed on any window that can be easily cleaned from within.” Surely the language which was the subject-matter of both of these latter cases was less specific and definite than the language of Sections 15 and 16 of the Industrial Commission Act, as defined by Section 13 of the act.

Another case indicating the even trend of the minds of this court is that of Leis v. Cleveland Ry. Co., 101 Ohio St., 162, in which, by unanimous judgment of the court, on April 6,1920, this court upheld the validity of certain ordinances of the city of Cleveland as follows:

“Any motorman or other person or persons having the charge or control of any motor or other car being operated upon any track or any street railroad in the city of Cleveland shall exercise all possible care and vigilance upon approaching any other car which has stopped for the purpose of receiving or letting off a passenger or passengers.

“Any car approaching another car which has been stopped for any purpose, and any car approaching a curve shall do so with the greatest care; and shall be under complete control of the person running the same.”

It should further be added that one of the results of the failure of the bench and bar to properly unde'rstand and apply the Schorlmg case has been that attorneys have frequently brought eases to this court for certification and review which were believed to turn upon the principle of the Schorlmg case, and several of these motions have been sustained while others have been overruled. The procedure therefore under the lawful requirement statute is wholly lacking in that certainty and uniformity which should characterize the proceedings of this court.

In view of the fact that this court has declared in the Roudebush case, supra, that the window-cleaning ordinance of Cincinnati is valid, and in the Leis case, supra, that the Cleveland motor-car ordinance is valid, and has also declared that manslaughter can be predicated upon Section 12603, General Code, and it being beyond dispute that the language in those ordinances and in Section 12603 is less definite and specific than the language in Sections 15 and 16 of the Industrial Commission Act and in Section 12593, General Code, it must follow that any action brought by an employe against his employer for- the failure to observe the provisions of those ordinances, or Section 12603, General Code, must necessarily result in the court’s holding that such a suit could be maintained.

I have already referred to the difficulty which must necessarily be experienced by the bench in ruling upon these matters in pending suits, and the difficulties which must be experienced by the bar .in properly and safely advising their clients.; but a problem much greater and more mystifying is presented to the employers of the state, not versed in the. law, and yet presumed to know the law. With no authority to whom they can turn, and no statute or decision well enough understood or clearly enough defined to enable them to steer between Scylla and Charybdis, what answer shall be made to them? There are a large number of statutes in Ohio, and a larger number of ordinances in the cities and villages of the state, which are the subject-matter of lawful requirements. Some of them have been declared valid, others have been declared invalid, though all of them seem to be couched in the same general form of expression. Until each and every statute and ordinance has been passed upon, what obligation rests upon the employers of the state?

Enough has been said of the Schorling■ case, but something further should be added relative to the erroneous views of the majority in the instant case. If the views of the majority are correct, then Section 12593, General Code, is invalid, and the legislature has exceeded its constitutional authority, and therefore the judgment of this court should not rest upon the judgment of four judges. The failure to have the concurrence of six judges, under the circumstances, and upon the reasoning declared in the majority opinion, should have resulted in this case being reversed.

The judgment of this court, agreed in by a bare majority, rendering the provisions of Section 12593, General Code, null and void, even though the decision does not in terms declare it to be unconstitutional, nevertheless constitutes a distinct transgression upon the constitution, because that section cannot be unenforceable upon any grounds other than its unconstitutionality, unless the language of the section itself is meaningless or not capable of being understood. Section- 1465-76, General'Code, contains the expression “lawful requirement.” It does hot contain the expression found in the first paragraph of the syllabus cf the majority in the instant case, “lawful, specific and definite requirements.” Surely any statutory requirement becomes a lawful requirement, unless (a) the statute is meaningless and unintelligible, or (b) the statute is unconstitutional. What is the test of unlawfúlness in a requirement? The majority answer that the test is whether the statute is so specific and definite as to advise an employer of his legal obligations. If this is the true test, and if this statute will not stand such a test, then it is clearly unconstitutional. This is clearly the declaration of the supreme court of the United States in the case of United States v. L. Cohen Grocery Co., 255 U. S., 81. It was held in that case that because the Lever Act, maMng it unlawful to mate any unjust or unreasonable rate or charge in dealing in necessaries, fixed no ascertainable standard of guilt, it “amounted to a delegation by congress of legislative power to courts and juries to determine what acts should be held to be criminal and punishable.” True, that was a federal statute being construed by a federal court. But the Constitution of Ohio delegates all legislative power to the legislative branch of the government and forbids its exercise by either of the other branches. The majority opinion published after the first argument of the instant case evidently recognized the force of that federal decision, and not only made a reference to that case but a rather lengthy quotation from it. The majority of this court evidently observed the fatal position in which they were placed by any reference to that case, and snch reference has been stricken out of the revised opinion since the reargument. That case may be taken out of the opinion of this court, but its fatal effect cannot be eliminated from the judgment of this court. A judgment which holds Section 12593, General Code, unenforceable in a civil proceeding must for a stronger reason hold it unenforceable in a criminal prosecution, and therefore the whole statute, not only in its criminal but also in its civil remedy, is rendered unconstitutional. The fact that the majority opinion has carefully avoided the use of the word unconstitutional does not by any means affect the result. Neither does such careful avoidance obviate the fact that a statute has been declared unconstitutional by less than the number of concurrences required by Section 2, Article IV of the Constitution as amended in 1912.

To further illustrate the unfortunate situation of this entire subject it should be pointed out that there are at this time a number of cases involving the same subject-matter, under different statutes, which cases have been submitted to this court and not yet finally disposed of. It so happens that some of these statutes were declared unenforceable by the court of appeals, thereby making it necessary to have only four votes in this court for an affirmance of those judgments, resulting in declaring those particular statutes unconstitutional in a proper way. In other cases, like the instant case, six concurrences are required. Numerous suits are still pending in courts of appeals, and it is conceivable that a large number of other suits will traverse the lower courts. Although it is apparent that all such statutes are couched in much the same language, it is fair to suppose in the future as in the past that some of these statutes will be upheld and others declared unenforceable.

While there is a wide divergence of opinion concerning the meaning and application of the Schorling case there can be no difference of opinion as to the principles declared by the syllabus and majority opinion in the instant case. A majority of this court undoubtedly have the right to declare the law upon all propositions, except that .of declaring a .statute unconstitutional in reversal of a judgment of the court of appeals. The pronouncement of a majority would ordinarily be accepted as final. Their pronouncements cannot, however, be accepted as a finality in the face of so many decisions involving identical principles which have been decided directly to the contrary.

If the former decisions of this court upon this general subject were uniform and harmonious I would be willing to accept the established doctrine and concur therein regardless of any convictions I might have on the subject, in the interest of uniformity and out of deference to the doctrine of stare decisis. There is, however, in this situation, such lack of uniformity, and such contradiction in principle, that it is my duty as a member of this court to declare my belief that the declarations of the Schorlmg case and the declarations of the majority in the instant case are unsound and that the true doctrine is declared in the other three eases herein discussed.

This discussion has painted a dark picture, and the question naturally arises: What is the remedy? The answer is difficult; but it may be suggested, first, that the provisions of the constitution requiring the concurrence of six judges in order to declare a law unconstitutional should be observed both in the spirit and to the letter; second, that it is the clear duty of this court to so modify the declarations found in a, number of its recent decisions as to make, them consistent and uniform. It is the duty of this court to so unify, to so simplify and to so construe the statutés of the staté of Ohio, and to so harmonize the decisions of the courts of Ohio, that not only the people will be able to understand and know the law, but that the bar will be able to expound the law, and the lower courts be able to construe and apply the law. If it'is impossible for this court to bring about such a state of affairs, then' it must be held that the remedy lies alone with the legislature:

Johnson, J.,

dissenting. I hold a different view concerning the scaffolding statute involved in this case than that entertained by the. majority of the court.

I join in. the high appreciation everywhere entertained of the Workmen’s Compensation Law. And I conceive it to be the sacred duty of the court to uphold and enforce that law in its letter and spirit. Experience has shown that it provides a beneficent, workable plan to compensate injured workmen and their dependents in accordance with humane and scientific principles, and offers a very substantial escape from the evils which were enmeshed in worn-out, mischievous and wasteful methods so long in use.

Impressed with this sense of duty this court, in many cases, carefully considered, has construed and upheld the. law. Its validity has been sustained and its provisions have been liberally construed in favor of its beneficiaries.

Concerning the term “lawful requirement,” an analysis was made of the constitutional provision and the statute in American Woodenware Mfg. Co. v. Schorling, 96 Ohio St., 305. It was in that case declared that (a) statutes of the state, (b) municipal ordinances, and (c) orders made by the industrial commission prescribing means or methods to protect the lives, health, safety and welfare of employes, are lawful requirements within the meaning of Section 35, Article. II of the Constitution, and of the "Workmen’s Compensation Law passed thereunder.

In this case it is conceded that the defendant had. complied with the provisions of the Workmen’s Compensation Law and had paid the required premiums into the state insurance fund. The plaintiff, Patten, rests his case on the alleged failure of the employer to comply with a lawful requirement for the protection of the life, health and safety of employes, and his specific claim in that regard is that the company failed to comply with the provisions of Section 12593, General Code.

The pertinent part of that section is as follows:

“Whoever, employing * * * another to do or perform labor in erecting, repairing, altering or painting a house, building * * * knowingly or negligently furnishes, erects or causes to be furnished for erection for and in the performance of said labor unsuitable or improper scaffolding, hoists, stays, ladders or other mechanical contrivances which will not give proper protection, ’ ’ etc. The majority of this court now holds that the provisions of that section do not constitute a lawful requirement within the meaning of the constitution and statutory provisions touching the subject. They are of the opinion that the terms of the statute are indefinite and not sufficiently specific to bring them within the provision of the constitution and the statute.

Section 35, Article II of the Constitution adopted September 3, 1912, authorizes the passage of laws establishing a state insurance fund to be created by compulsory contribution thereto by employers and taking away any and all rights of actions or' defenses from employes and employers, but no right of action “shall be taken away from any employe when the injury, disease or death arises from failure of the employer to comply with any lawful requirement for the protection of the lives, health and safety of employes.”

The rationale of the entire plan is that experience has demonstrated that upon just and scientific considerations injuries received by employes in the course of their employment, not wilfully self-inflicted, should be a charge upon the business in which they ai’e engaged — the business being in the line of causation — and provisions for taking away rights of action against employers who were compelled to contribute to the insurance fund were regarded as equally just and essential to the validity of the plan, unless the injury was caused by the wilful act of the employer or his agents, or from failure to comply with any lawful requirement for protection of employes.

In American Woodenware Mfg. Co. v. Schorling, supra, the employe complained of the negligence of his employer in permitting a load of lumber to be piled on a truck so that it toppled over and injured him while in the performance of his work. It was contended that this act of negligence constituted a failure to comply with a lawful requirement, within the meaning of the constitutional provision above referred to and within the provisions of Sections 15 and 16 of the Industrial Commission Act, 103 Ohio Laws, 95.

In the opinion the constitutional amendment and the commission act were discussed, and this court said, at page 313: “If the failure to comply ‘with a lawful requirement’ includes an act which was actionable negligence simply because of the rules of common law, then the portion of the section [Section 35] which authorizes the taking away of any or all rights of action or defenses of employes and employers would be practically meaningless and inoperative. We should be holding that embodied in the same section was power to take away nil rights of actions or defenses of employes and employers, and also a practical denial of power to take away cmy right of action.” Other reasons equally conclusive were pointed out in the statute, and it was held in the third proposition of the syllabus that “The term ‘lawful requirement’ as used in Section 35, Article II of the Constitution, and Section 29 of the Workmen’s Compensation Act (103 O. L., 84), doés not include a general course of conduct, or those general duties and obligations of care and caution which rest upon employers and employes, and all other members of the community, for the protection of life, health and safety.”

As to Sections 15 and 16 of the Industrial Commission Act the court held in the second proposition of the syllabus that “The Industrial Commission Act (103 O. L., 95) provides for the creation of an administrative board with power to supervise all places of employment, to prescribe general rules and requirements concerning all employments and places of employment and particular orders and requirements for particular employers and places of employment, to secure the lives, health, safety and welfare of every employe in such employments, and every frequenter of such places of employment. The purpose and intent of Sections 15 and 16 of the act was to bring all employers within the scope of the jurisdiction and authority of the commission and to impose on them the obligation to comply with the orders and requirements of the commission when duly made. The provisions of Sections 15 and 16 are not the la'wful requirements referred to by, and within the meaning of, Section 35, Article II of the Constitution. ”

It was also held that “By the provisions of Section 25 of the Industrial Commission Act an order made by the industrial commission to employers generally or to a particular employer, with reference to safe employment or place of employment, is a lawful requirement (until altered in the manner provided for in the act), for failure to comply with which, or with any statute or municipal ordinance prescribing means or methods required to be used to protect the lives, health, safety and welfare of employes, the employer under the proviso contained in Section 35, Article II of the Constitution, and Section 29 of the Workmen’s Compensation Act, is liable to an employe injured by reason of such failure. ’ ’

It is. perfectly clear that the framers of th;e constitutional amendment intended to provide for the creation of a fund to which employers should be compelled to contribute, and that, at the same time, in recognition of. such contribution, rights of actions against them should be taken away, except for the failure of the employer to comply with any lawful requirement for the protection of the employes, or for the employer’s wilful acts.

It is equally manifest that as above shown it was not intended that, the term “lawful requirement” should include the duties and obligations of care and caution which rest upon employers for the protection and safety of employes under the common law, because in that case the provision for taking away rights of action would be absolutely inoperative and meaningless. Such holding would violate every canon of constitutional construction. It would be compelling employers to malee contrib