(Dissenting). — The opinion of the court deals with the construction of the complaint and of subdivision (8), paragraph 3156, of the Revised Statutes of 1913. It is my view that the complaint states a cause of action under this subdivision. But the question of the more importance is the interpretation placed upon the statute, which has a bearing not only upon the subdivision especially under consideration but upon other subdivisions of the same paragraph. The subdivision, with the first lines of the paragraph, which must be read into each subdivision in order to make a complete sentence, is as follows:
“3156. The occupations hereby declared and determined to be hazardous within the meaning of this chapter are as follows: . . .
“ (8) All work in or about quarries, open pits, open cuts, mines, ore reduction works and smelters.”
If this sentence means what it says, then all work done in and about a smelter is “hazardous” within the definition of the statute, whether the employer be the owner or operator of the smelter, or someone working for the owner or operator as contractor or otherwise. Of course, it does not include someone who merely “happens” to be in the smelter. That situation is not applicable to the facts-of this case, as the plaintiff was not there by chance, but by regular and legitimate employment by a contractor operating for o and under the owner of the smelter. It can hardly.be contemplated that a different liability attaches to the owner who employs labor about his *42smelter than attaches to a contractor, or that the laborer, in order to secure protection under the statute, must determine by what title or in what capacity his employer is carrying on the business. If the subdivision means what it says, one kind of work done within a smelter is protected by the same liability that protects any other work in the smelter. The statute makes no distinction between work done in the actual operation of the smelter and work done in its repair or construction, provided the smelter is at the time in actual existence. That question is decided in the case of United Verde Extension Mining Co. v. Littlejohn (C. C. A.), 279 Fed. 223, and there is no authority to the contrary.
If the legislature did not intend this subdivision to mean what it says, that intention must be written somewhere in the statute, and in the opinion of my learned associates such intention appears in paragraph 3155, which is as follows:
“3155. The labor and services of workmen at manual and mechanical labor, in the employment of any person, firm, association, company, or corporation, in the occupations enumerated in the next section hereof, are hereby declared and determined to be service in a hazardous occupation within the meaning of the terms of the preceding section.
“By reason of the nature and conditions of, and .the means used and provided for doing the work in, said occupations, such service is especially dangerous and hazardous to the workmen therein, because of risks and hazards which are inherent in such occupations and which are unavoidable by the workmen therein. ’ ’
This paragraph limits the. operation of the Employers’ Liability Law to those engaged in manual and mechanical labor when such labor is done for anyone carrying .on any of the “occupations” ehumerated in paragraph 3156. One of the occupations there enumerated is all work in a smelter. I am unable *43to find anything in paragraph 3155 which so limits the effect of subdivision (8) as to make it apply to only a part of the work, nor do I find anything there which requires the employer to be either the owner or the operator of the smelter itself. If there is any inconsistency between these paragraphs so that one might be held to qualify the other, it arises from the differing functions of the two paragraphs. The first is a general, and the latter a specific classification of hazardous occupations. In such instances the specific prevails over the general, and the generalization of 3155 must yield to the particulars stated in 3156. 2 Lewis’ Sutherland on Statutory Construction, 345.
The legislature in defining the various occupations which it has declared to be hazardous has in some instances made the hazard depend upon the particular class or character of work done, and in other instances has made the hazard depend upon the physical location in which the work is done. Both of the dangers upon which recovery is sought in this instance depend upon location, rather than upon the character of the work done. The hazard, as clause (5) defines it, exists whenever the work is done upon a scaffold, whether that work be painting, bricklaying, or what not else. Clause (8) also defines the hazard by the proximity of the work to certain dangerous localities.
Unless this classification of hazards is unreasonable or arbitrary, or in conflict with some constitutional provision, it must be enforced by the courts as it is written. This statute has many times by this court been found to be neither unreasonable, nor arbitrary, nor in conflict with the Constitution of this state. The Supreme Court of the United States has likewise found that the law is not repugnant to the Constitution of the United States, and that the classification of hazards is not arbitrary nor unreasonable. *44Arizona Employers’ Liability Cases, 250 U. S. 400, 63 L. Ed. 1058, 6 A. L. R. 1537, 39 Sup. Ct. Rep. 553.
The words “in or about” any object seem plainly enough to refer to physical locality. It is very common in laws of this character to classify a hazardous occupation by its proximity to things or processes known to be dangerous and the words have always been interpreted, so far as any precedents have been cited or examined, as relating to the presence of danger from the locality, rather than from the particular work carried on. Bevard v. Skidmore-Patterson Coal Co., 101 Kan. 207, 165 Pac. 657; United Verde Extension Mining Co. v. Littlejohn (C. C. A.), 279 Fed. 223. In the present instance, bricklaying was being done in a smelter then in operation. The brick was being laid into a flue which was designed for service in the operation of smelting or reducing ore, and to meet the needs and uses of the smelter. It was not something foreign to the smelter’s business.
The occupation in which plaintiff was engaged comes within the limits of the occupations defined in said clause (8). This conclusion is authorized by the construction given to the same statute by the Ninth (Circuit Court of Appeals in United Verde Extension Mining Co. v. Littlejohn, 279 Fed. 223. Littlejohn, at the time of the accident, was carrying an iron bolt across a plank spanning an open pit. The plank broke, and precipitated Littlejohn into the pit, causing the injury complained of. The pit was being constructed as an addition to a sample mill, an adjunct of a smelter. In the opinion of the court, Littlejohn was employed in a hazardous occupation within the scope and purpose of clause (8); that is to say, he was employed in work “in and about an open pit in an additional construction to the sample mill, and this sample mill was to be used to crush ore for the smelter. The work of construction in *45which, the plaintiff was employed was necessary to enable the defendant to carry on its business of smelting ores, and the work was in and about an open pit, ore reduction works and a smelter.”
The same opinion also says the work was necessary and appropriate to enable the defendant to carry on its business of smelting ores, and work was being done in and about the defendant’s smelter. Littlejohn, like the plaintiff in this case, was engaged in construction work. Neither was doing anything in connection with the operation of the smelter, but both were in the location declared by the statute to be dangerous, and both were injured by an accident due to the conditions of their employment. It is not the function of the court to assume judical knowledge of what sort of labor is peculiar and appropriate to be done in a smelter. The legislature has assumed that responsibility and declared that “all work in or about a smelter” is hazardous. Much less is it the function of the court to assume to take judicial knowledge that bricklaying is not hazardous when carried on in a smelter. Boody v. K. & C. Mfg. Co., 77 N. H. 208, Ann. Cas. 1914D, 1280, L. R. A. 1916A, 10, 90 Atl. 859; Pellerin v. International Cotton Mills, 248 Fed. 242, 160 C. C. A. 320.
The fact that bricklaying is not under all conditions or in all locations a hazardous occupation does not militate against the plaintiff’s right of recovery, if otherwise he comes within the provisions of the statute. It is no uncommon thing for an accident to entitle the workman to recover under this liability statute which might in other surroundings and circumstances be wholly without the protection of the law. In the Egich Case, 22 Ariz. 543, 199 Pac. 132, for instance, the recovery was on account of an injury caused by the head of a hammer coming loose from the handle, hurting plaintiff’s toe. A similar accident might have occurred in many occupations *46not declared by the statute to be hazardous, and have afforded the plaintiff no ground of relief.
In the case of In re Larsen, 218 N. Y. 252, 112 N. E. 725, the plaintiff was found entitled to recover on account of an injury suffered by him while engaged in putting up a shelf in a factory used for the manufacture of drugs and chemicals. The hazardous nature of the business in which the plaintiff in that case was employed consisted in the manufacture of drugs and chemicals. The plaintiff, in attempting to put up a shelf, lost his balance and fell down the elevator shaft. For that he claimed compensation, which was opposed on the ground that the claimant, at the time of the accident, was not engaged in any act immediately connected with what might be deemed the hazardous and characteristic feature of the business, although such act was incident to the employment, and necessary in prosecuting and carrying forward the business. The plaintiff was found entitled to recover.
It is admitted that the accident happened while the plaintiff was doing the work which he was hired to do in the place where he was hired to do it, and that he was working “in or about ore reduction works and smelter.” The recital of facts seems to indicate, too, that the accident was due to a twisting or turning of the scaffold upon which his work required him to stand, which is equivalent to saying that it was due to the conditions of his employment.
The laborer who can read the English language has a right to rely upon the plain import of this subdivision when he goes into a smelter to work, by whomsoever engaged, and he has a right to hold that employer to the liability by which the statute undertakes to shelter and protect him.
I can find no reason for reversing the judgment.