Opinion, per DONAHUE, J. was upon the defendant to establish the truth of this averment by a preponderance of the evidence. It offered no evidence directed to that issue, but on the contrary admitted that Steve Korens was over 14 years of age. There was therefore nothing to submit to the jury touching this averment as to the violation of condition two of the policy of insurance. It is contended on the part of the defendant that the plaintiff violated the third condition of the policy of insurance, which reads as follows: "Third. Caused to or by any person employed by the insured contrary to law." This is denied by the plaintiff. No evidence was admitted on the part of the defendant in support of this averment. This of course ends the inquiry so far as the pleadings present an issue of fact touching the employment of Steve Korens by plaintiff contrary to law. The reply of the plaintiff, however, avers that Steve Korens was employed June 6, 1911, was injured on the 11th day of the same month, and that the public schools of Cleveland were not in session, having closed for the current school year May 23, 1911. This seems to be established by the stipulation with reference to the testimony of Sarah E. Hyre, and there appears to be no controversy touching any of these averments. The question is therefore fairly presented by this record whether it is contrary to law to employ during the summer school vacation, a minor between 14 and 16 years of age, without first procuring an age and schooling certificate as a con Opinion, per DONAHUE, J. dition precedent to such employment. Section 12994, General Code, imposes a penalty upon a person employing a minor between 14 and 16 years of age in a factory, workshop, business office, telephone or telegraph office, restaurant, bakery, hotel, apartment house, mercantile or other establishment, or in the distribution or transmission of merchandise or messages, without first procuring from the proper authority "the age and schooling certificate provided by law." This section, as it now reads, is general in its terms, and makes no exception whatever with reference to vacation of the public schools; but before this section can be properly construed it is necessary to inquire as to the age and schooling certificate provided by law. Sections 7765 and 7766, General Code, provide for an age and schooling certificate, authorizing the employment of a child under sixteen and over fourteen years of age during the school term and while the public schools are in session. That certificate is to be issued only upon satisfactory proof that the child is over fourteen years of age and has been examined and passed a satisfactory fifth grade test in the studies enumerated in Section 7762, General Code. It necessarily follows that "the age and schooling certificate provided by law," referred to in Section 12994, refers to the age and schooling certificate authorized to be issued under Sections 7765 and 7766, General Code; for there is no other certificate provided by law. That certificate, under the plain terms of the statute authorizing its issue, has no purpose or application except "during the Opinion, per DONAHUE, J. school term and while the public schools are in session." It is clear, not only from the language used, but also from the history of this legislation, that no other construction can be given it. On the 23d of April, 1904 (97 O. L., 321), the general assembly of Ohio passed an act, one of the purposes of which, as declared in its title, was "to make the minor labor law conform with the compulsory education law." That act required the age and schooling certificate provided in Section 4022-2, Revised Statutes, as a condition of employment of a child over fourteen and under sixteen years of age. This act was amended February 28, 1908 (99 O. L., 30), but the amendment retained this provision in identical language. Section 4022-2, Revised Statutes, provided that no child under sixteen years of age should be employed during the school term and while the public schools are in session, without first procuring the age and schooling certificate. The codifying commission changed the language of the original act, "the age and schooling certificate prescribed in Section 4022-2 of the Revised Statutes of Ohio," to read as follows, "the age and schooling certificate provided by law." This language necessarily means the same as the language found in the original act, especially in view of the fact that no section other than Sections 7765 and 7766 provides for the certificate. These sections are found in the chapter relating to compulsory education, and contain substantially the same provisions as Section 4022-2, Revised Statutes. It is therefore evident that this provision of Opinion, per Donahue, J. Section 12994, General Code, must receive the same construction as the similar provision found in the original statute, which by its title appears to have been passed for the purpose of making the minor labor laws conform with the compulsoryeducation laws of Ohio. The general assembly having solemnly declared that it was the purpose and intent in passing this act to make the laws relating to minors conform with the laws relating to compulsory education, a court should hesitate to ignore the intention of the legislature, expressed in clear and explicit language, and to declare these laws in conflict with each other. In this section, however, the phrase "provided by law" must necessarily be construed in connection with the statutes which provide for such certificate. Sections 7765 and 7766, General Code, which provide for the age and schooling certificate, require such certificate only "during the school term and while the public schools are in session." The fact that under the provisions of Section 7766, General Code, these certificates can be issued only upon satisfactory proof that the child has been examined and passed a satisfactory fifth grade test in the studies enumerated in Section 7762 necessarily confines the issuance of these certificates to the school term, for it would be practically impossible to hold such examination during vacation. This would mean the enforced idleness of a child legally entitled to be employed during the school vacation, merely because there are no means pro Opinion, per DONAHUE, J. vided by which the necessary certificate could be procured. The contention on the part of the defendant that these laws relating to the employment of minors do not conform to the laws relating to compulsory education, notwithstanding the declared purpose and intent of the legislature, is sought to be maintained upon the theory that it was the intent of Section 12994, General Code, to prevent the employment of a child between fourteen and sixteen years of age in the establishments described in Section 12993, General Code, and in the distribution and transmission of merchandise or messages, without some evidence of the mental capacity of the child to protect himself from the dangers incident to such employment. If the legislature had so intended, it would undoubtedly have provided for the procuring of a certificate of that character instead of the certificate provided in Sections 7765 and 7766, General Code, and would also have provided some means by which such a certificate could be obtained during the school vacation. However, an examination of Section 12993 furnishes a conclusive answer in the negative of this proposition. It includes business offices, telephone or telegraph offices, restaurants, hotels, apartment houses, mercantile or other establishments, and the distribution and transmission of merchandise or messages. These employments present no extraordinary danger. On the contrary, many of them are as safe as any employment in which a minor could engage. |