— It is contended for appellant — defendant below — that the act “For the protection of the travelling public,” &c., approved February 28th,' 1887 — Sess. Acts, 87 —is unconstitutional, on two grounds: First, in declaring that the examinations in reference to color blindness, for which it makes provision, shall be “at the .expense of the railroad companies.” The second ground urged is, that while the statute specifies and declares certain rules' for conducting examinations and granting certificates, it nevertheless provides “that the State Board of Health may, from time to time, make such alterations in, or additions to these rules and requirements, as they may deem just and proper.”
We do not consider the decision of either of these questions jiecessary in this case. The first will arise, and properly arise, when the railroad corporation is sought to be held accountable for the fee. Its refusal to pay does not relieve the physician, accepting appointment as examiner, of the duty of examining and certifying as to the qualifications of applicants who come properly before him. — Baldwin v. Kouns, 81 Ala. 272. Nor can the second of the questions arise, until the State Board of Health attempts to make alterations in, or additions to the rules for examination of applicants for license. It is not pretended that they have yet attempted to do so.
If either or both of these provisions should be declared invalid, or even unconstitutional, such ruling will not impair the unity of the statute, or work its destruction. It can *76still be executed in the spirit in which it was framed. 3 Brick. Dig. 127.-8, §§ 18, 23, 25, 26, 27.
An argument has been made before us, based on the word employ (“employing”) as used in the statute. The contract under which the services of the conductor were obtained in this case, was made in the State of Tennessee — the State in which the corporation has its domicil and principal office. The argument is, that the legislature of this State can not prescribe rules for making contracts in another State. The conclusion is just, if the premises justify it. But they do not. The provision has no reference to the mere contract under which the services were obtained. It relates to and regulates the services procured to be performed for the corporation. Its meaning in this statute is, to make use of, to intrust with some agency or duty; making use of, intrusting with some agency or duty. — Worcester’s Dictionary. There is nothing in this argument.
' The remaining questions argued in this case have been considered and settled adversely to appellant, both by this court and by ‘the Supreme Court of the United States. McDonald v. State, 81 Ala. 279; Smith v. State, (recently) U. S. We have no wish to reopen the discussion.
The judgment of the Circuit Court is affirmed.