I dissent. To my mind there are two possible constructions that may be placed on the language of section 2863, Revised Codes, that we are here considering. The one construction is that placed upon it in the majority opinion promulgated after the filing of the petition for rehearing. That construction *Page 328 denies to the survivors of the minor killed while employed contrary to the Child Labor Law any recovery at law. That construction nullifies the expressed purposes of several groups of statutes dealing with minors. So far as the Child Labor Law is concerned and the many cases construing it, the majority's view as to the effect of the amendment of 1925 is in direct conflict with the principles underlying that legislation. The civil penalties denying to the employer certain defenses where he employs minors contrary to the Child Labor Law shows how strong has been our policy for the purpose of discouraging the employment of minors. Under the view of the majority now the employment of minors is encouraged. And this is particularly true for in the usual case as here nothing is payable under the workman's compensation laws either as ordinarily the minor has no dependents, and if he has the degree of dependency is small. It is hard for me to believe that by the enactment of the amendment of 1925 the legislature sought to bring about this result.
Another effect of the majority opinion is to repeal so far as workmen's compensation cases are concerned, and where children are illegally employed, the many statutes founded on common sense and experience which provide that children under certain ages are not competent to contract. To me it is also incredible that the legislature intended by this amendment to bring about such a result.
Then, too, the majority construction, it seems to me, makes the Act so far as minors are concerned one to relieve the employer of liability rather than one to furnish protection to employees and their families. It would seem to me that the legislature would intend to furnish more protection for minors than for adults rather than less. This interpretation reaches a contrary result. To me the result reached is a shocking one. A child of thirteen is employed contrary to the Child Labor Law, running a highly dangerous piece of machinery, an elevator. The law expressly forbade her employment. Within a few days after she was on the job she was killed in operating the elevator, how we do not know except that she was found dead in the *Page 329 shaft some time the next morning. Her employer is not liable to any one for her death and apparently no workman's compensation will ever be received by her parents as she had not worked long enough to draw even her first check.
The majority agrees that the result reached is undesirable but it takes the view that there is but one possible construction to be placed on section 2863, as amended. It says that the court may do nothing as the legislature has used language that admits of but one construction. If there are two possible construction it is well settled that it is our duty to adopt the construction that will do justice in the particular suit and that will serve to harmonize all of the statutes dealing with the subject, and that will carry out the purpose of the whole Act, I believe that the amended Act is open to two possible constructions. I believe that the correct and logical construction is that placed upon the amended Act in the original opinion prepared by the majority prior to the petition for rehearing. In the application of the Act in our original opinion, all of the statutes setting out the primary purposes of all of the Acts dealing with employment of minors, with capacity of minors to contract and with the basic theories of the Workmen's Compensation Act, are harmonized and all are given effect. I do not feel that the interpretation placed on section 2863 is a strained one nor do I think the language of the amended section precludes the construction there placed upon it.
In my opinion the original opinion should be adhered to, and the judgment of dismissal appealed from should be reversed.