In the cases in other states holding the Workmen's Compensation Law inapplicable there was question as to what the legislature had in mind — whether it intended to deal with contracts of employment that were prohibited by law. As illustrative, I refer to the following:
In Hetzel v. Wasson Piston Ring Co., 89 N.J.L. 201,98 A. 306, 307, L.R.A. 1917D, 75, a leading case, the court says: "It can hardly be doubted that the Legislature * * * had in mind contracts which were valid in law or, at least, contracts the making of which was not prohibited by express legislative enactment; * * *."
Kruczkowski v. Polonia Pub. Co., 203 Mich. 211, *Page 326 168 N.W. 932, 933, holds: "In our opinion the better rule is that, to permit a minor employe to be regarded as within the meaning and provisions of the Compensation Act, there must be a valid contractual relation, and a contract to be employed in the work in which he was injured; that a contract which is illegal, or in violation of a statute, will not suffice.
"A valid contract of employment in the work in which the minor was injured is essential in order that such a person may be an `employe' under the Act."
Wlock v. Fort Dummer Mills. 98 Vt. 449, 459, 129 A. 311,314, says: "Since the plaintiff was not an employee within the true intent and meaning of the Workmen's Compensation Act, she was not subject to the provisions thereof, nor was the remedy there provided applicable in seeking damages for the injuries suffered."
In Nebraska the compensation law declares itself as "including minors who are legally permitted to work under the laws of the state, who for the purpose of making election of remedies under this code shall have the same power of contracting and electing as adult employes." (Comp. St. 1922, sec. 3038.) The court there in interpreting that provision and applying it to an injured minor whose employment was such as prohibited by law, says, inBenner v. Evans Laundry Co., 117 Neb. 701, 222 N.W. 630, 631, that "The law does not compel such a minor in such circumstances to be classified [as within its provision]", pointing out that the law calls for lawful employment as the basis of its application.
In Indiana the court has said: "We think that a fair construction of the Indiana Workmen's Compensation Act requires us to hold that in enacting the law with reference to the rights and remedies of employers and employes the Legislature referred to legal employment." And in case of a workman employed in violation of a statute, "the employment was illegal, and he is not embraced within the provisions of the Workmen's Compensation Act," and he could maintain a common-law action. (New Albany Box Basket Co. v. Davidson, 189 Ind. 57, *Page 327 125 N.E. 904, 907.) And in Mid-West Box Co. v. Hazzard, 195 Ind. 608,146 N.E. 420, 422, the controlling factor was that the employment was not lawful, and the common-law action was not barred by the compensation law. The court says in the latter case: "Since plaintiff suffered the injury sued for, the Legislature has amended the Workmen's Compensation Act by inserting the word `lawfully' in the provision under consideration which is thus made to read as follows: `Employee shall include every person, including a minor, lawfully in the service of another under any contract of hire or apprenticeship,' * * *. But as it read before the amendment was made the provision quoted necessarily implied a lawful employment." Other state courts hold the same way.
Our statute has overridden the hindrance met with in these other states; all doubt is removed as to the inclusion of cases of minors engaged in prohibited hazardous employment. As amended in 1925, the statute, section 2863, Rev. Codes, says that the words "`Employee' and `workman' are used synonymously and mean every person in this state, including * * * aliens and also including minors, whether lawfully or unlawfully employed * * *." In these other states, for a minor to come under the compensation law, the employment must be lawful. Here it may be either lawful or unlawful. All minors employed, including those engaged in hazardous occupation prohibited to them by law, are classified as employees. And given that classification, they are bound by the Workmen's Compensation Law regardless of the violation of the Child Labor Law, and even though by that law their employment is illegal.
I concur in the majority opinion.