Petition for rehearing denied October 24, 1933 ON PETITION FOR REHEARING (25 P.2d 1055) Department 2. On petition for rehearing. The respondent, in his petition for a rehearing, asserts that the workmen's compensation law applies to and protects only such employees as can be legally employed, and in support of this contention numerous well-reasoned decisions from many courts are cited. He then directs our attention to several sections of our code relating to the employment of minors, and argues that a minor of ten years of age cannot, under any circumstances, be legally employed.
Section 49-413, Oregon Code 1930, provides as follows:
"The board of inspectors of child labor may in its discretion allow children between the ages of twelve and fourteen to be employed in any suitable work during any school vacation extending over a term of two weeks and may issue permits therefor. It shall be the duty of such board to exercise careful discretion as to the character of such employment and its effect on the physical and moral well-being of the child."
The foregoing section was enacted as a part of chapter 208, General Laws of Oregon, 1905. Sections 2 and 3 of that act as amended are as follows: *Page 669
"No child under fourteen years of age shall be employed, permitted, or suffered to work in, or in connection with, any factory, work-shop, mercantile establishment, store, business office, restaurant, bakery, hotel or apartment house. No child under the age of sixteen shall be employed, permitted or suffered to work in the telegraph, telephone, or public messenger service." (§ 49-401, Oregon Code 1930.)
"No child under the age of fourteen years shall be employed in any work, or labor or [of] any form for wages or other compensation to whomsoever payable, during the term when the public schools of the town, district, or city in which he or she resides are in session." (§ 49-402, Oregon Code 1930.)
Other sections of the act provide for attendance at schools, working hours of minors, the issuance of schooling certificates and other matters affecting the employment of minors. There is, however, in the act referred to, no prohibition against the employment of minors during school vacation, except the prohibitions contained in section 49-401. Nor have we been able to discover, in any other law, any provisions against the employment of a minor of the age of ten years in the work in which young King was engaged at the time of the accident.
Section 49-413, on which respondent relies, must be read in connection with the other sections of the act of which it is a part, and when so considered it is apparent that the legislature intended to grant to the board of inspectors of child labor authority to permit children between the ages of 12 and 14 to be employed, for short periods, during school vacations and at suitable work in those industries in which the employment of children under certain ages is prohibited by the act. This is the construction which those who have *Page 670 been charged with the administration of the act have placed on this section.
Respondent argues that since section 49-413 empowers the state welfare commission (formerly board of inspectors of child labor) to allow children between the ages of 12 and 14 to be employed at certain times and at suitable work, therefore under the familiar rule of law, "expressio unius est exclusio alterius," children under 12 years of age are absolutely forbidden to work at any time at any employment. Applying this same line of reasoning, it might be contended with the same plausibility that children over 14 years of age were also prohibited. Had the legislature intended to make the employment of minors under a certain age at any work during vacation time illegal, it would have said so, definitely and unmistakably, as it did in the sections already quoted, with reference to certain industries.
Respondent had attempted to introduce in evidence in the circuit court what purported to be a circular issued by the state welfare commission, dated July 14, 1931, containing the orders of its predecessor, the industrial welfare commission. The objection of the defendants to its introduction was sustained. Respondent now contends that we ought to take judicial notice of all orders and regulations promulgated by state boards and commissions, and that we should consider the order of August 12, 1919, promulgated by the industrial welfare commission, set forth in the circular above referred to, and reading as follows:
"No child under sixteen (16) years of age can be employed in the state of Oregon unless he or she has acquired the ordinary branches of learning taught in the first eight years of the public schools." *Page 671
The view which we take of this order makes it unnecessary to pass on the question of whether or not this court will take judicial knowledge of its contents. The order recites that it is issued pursuant to the authority vested in the industrial welfare commission by chapter 62, General Laws of Oregon, 1913. No such authority is vested in that commission by the law last referred to or any other law of the state coming to our attention. The purpose of the 1913 enactment was "to provide for the fixing of minimum wages and maximum hours and standard conditions of labor for" women and minors.
We have been unable to find any law which made illegal the employment of David King in the work he was performing at the time of the accident. The petition for a rehearing is therefore denied.
RAND, C.J., and CAMPBELL, J., concur; BEAN, J., not participating in this opinion. *Page 672