I concur in the affirmance of the judgment but I cannot persuade myself that the doctrine of ejusdem generis has any application.
The question here is whether or not the language of section *Page 334 3095, Revised Codes, prohibits the employment of children under the age of sixteen years, in, on, or about threshing machines.
If section 3095, Revised Codes, does prohibit the employment of children in such occupations then the defenses of contributory negligence and assumption of risk are not available to the defendant (Daly v. Swift Co., 90 Mont. 52, 300 P. 265) and such defenses and the instructions pertaining thereto should not have been submitted to the jury.
On the other hand, if section 3095, Revised Codes, does not prohibit the employment of children under the age of sixteen years in, on, or about threshing machines, then such defenses are available and the trial court properly instructed the jury with respect thereto.
The legislature possesses the right to include employment in, on and about threshing machines in the prohibited occupations if it so desired. The question is: Did it use such language in the statute as to definitely prohibit such employment?
So far as material here the section (3095, Rev. Codes) reads: "Any person * * * engaged in business in this state, * * * who shall knowingly employ or permit to be employed any child under the age of sixteen years, to render or perform any service or labor, * * * in, on, or about any mine, mill, smelter, workshop, factory, * * railroad, or passenger or freight elevator, orwhere any machinery is operated, or for any telegraph, telephone, or messenger company, or in any occupation not hereinenumerated which is known to be dangerous or unhealthful, or which may be in any way detrimental to the morals of said child, shall be guilty of a misdemeanor."
The above statute is penal in character; it defines a crime. Such statutes should not be extended by construction beyond their natural meaning. (Shubat v. Glacier County, 93 Mont. 160,18 P.2d 614.) This court in Burk v. Montana Power Co.,79 Mont. 52, 255 P. 337, held the words of the statute reading"in any occupation * * * known to be dangerous," so uncertain as to kind and nature of occupations intended to come within the prohibited class, as to render such quoted words void. *Page 335
The statute makes no mention of threshing machines, but it is urged that after prohibiting employment in certain definite and specified occupations the phrase "or where any machinery is operated" includes a threshing machine operation, and prohibits the employment in, on or about same. However this being a penal statute, the dividing line between the lawful occupations and the unlawful occupations cannot be left to conjecture.
"The dividing line between what is lawful and unlawful cannot be left to conjecture. The citizen cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different constructions. A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue. Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another." (United States v.Capital Traction Co., 34 App. D.C. 592, 19 Ann. Cas. 68.)
Can it be said that a reading of the statute will disclose to a threshing machine operator that he is subject to the penalties of the law? We think not. In H. Earl Clack Co. v. PublicService Commission, 94 Mont. 488, 22 P.2d 1056, 1059, we said:
"`Laws which create crime ought to be so explicit that all man subject to their penalties may know what acts * * * to avoid.' (United States v. Brewer, 139 U.S. 278, 11 S. Ct. 538,35 L. Ed. 190.) `In order to constitute a crime, the act must be one which the party is able to know in advance whether it is criminal or not. The criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness and certainty.' (Tozer v. United States, C.C., 52 Fed. 917.) `If the legislature undertakes to define by statute a new offense, and provide for its punishment, it should *Page 336 express its will in language that need not deceive the common mind. Every man should be able to know with certainty when he is committing a crime.' (United States v. Reese, 92 U.S. 214,23 L. Ed. 563. Burk v. Montana Power Co., 79 Mont. 52,255 P. 337, 339.)
"`That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.' (Connally v.General Construction Co., 269 U.S. 385, 46 S. Ct. 126, 127,70 L. Ed. 322)."
The statute specifically and definitely prohibits the employment of children under the age of sixteen years in, on, or about any (1) mine, (2) mill, (3) smelter, (4) workshop, (5) factory, (6) railroad, (7) passenger or freight elevator, or for any (8) telegraph company, or (9) telephone company, or (10) messenger company. The phrase "or where any machinery is operated" occurring in the statute is most indefinite and uncertain. It is entirely too general language to define, specify or point out the particular occupation or occupations in addition to those specifically designated to which the act is to apply. This particular phrase and part of the statute must therefore be condemned, and its general and uncertain language cannot be held to include threshing machine operations. (See the authorities cited by this court in Jarvella v. Northern P. R. Co.,101 Mont. 102, 53 P.2d 446, and H. Earl Clack Co. v. PublicService Commission, 94 Mont. 488, 22 P.2d 1056; see alsoState v. Menderson, 57 Ariz. 103, 111 P.2d 622 andState ex rel. State Board v. Nagle, 100 Mont. 86, 45 P.2d 1041.)
The particular phrase, "or where any machinery is operated," *Page 337 being void for uncertainty, the doctrine of ejusdem generis does not apply. (Burk v. Montana Power Co., 79 Mont. 52,255 P. 337; Arizona Superior Min. Co. v. Anderson, 33 Ariz. 64,262 P. 489; 2 Lewis' Sutherland Statutory Construction, 2d Ed., sec. 437; 59 C.J., sec. 581, pp. 983, 984.)
The legislature having omitted from its specified list of prohibited occupations, employment in, on or about threshing machines, neither the trial court nor this court may supply that omission. The jury decided against recovery and while the plight of the injured boy is one which calls strongly upon our sympathy we are powerless to do other than enter an order of affirmance.
Rehearing denied May 13, 1943.