Galveston, H. H.R. Co. v. Anderson , 229 S.W. 998 ( 1920 )

The argument of the appellee upon rehearing, although at much greater length than I should myself have written it, so well elaborates my original view on the questions here involved — confirmed as they have been on reconsideration of the cause — that I venture this adoption of it as my further dissenting opinion:

"Was plaintiff's case abated by the act of 1917? If it was, it is wholly immaterial whether the Legislature intended to prohibit railroads from employing children in and about a death-dealing switching yard.

"The opinion of the majority holds that the word `establishment,' as used in the act, did not mean, and was not intended to mean, a railroad yard; no authority is cited to support the conclusion reached.

"Whether the question involved has been passed on adversely in other states we little know; we are satisfied if the Texas construction is with us. The distinction we contend for was pointed out by the late Judge Reese in Stirling v. Bettis, in this court, June 16, 1913, 159 S.W. 915, by a unanimous opinion. In that case the plaintiff was employed by the defendant under the act of the 28th Legislature, c. 28, approved March 6, 1903, and the suit was filed October 156, 1910, and tried May, 1912, after the act of 1911 went into effect. On the date of the trial, therefore, the act which was the law at the time of the injury, October 3, 1910, was no longer the law generally, except in so far as it was a law by continuation into a new act of practically, if not actually, the same provision. At any rate, the act of 1903 (Laws 1903, c. 28) was expressly repealed by the act of 1911. The same proposition was urged by the appellant as is here urged — that the suit must abate by reason of the implied repeal of the act under which it was brought. But this proposition was expressly overruled. Judge Reese, speaking for this court, says:

"`The statute referred to was expressly repealed by section 3 of an act of the Thirty-Second Legislature, * * * and was therefore not in force when this case was tried, and it is contended by appellee that its provisions are not applicable to this case. The latter act is much more comprehensive in its terms than the former, and makes it a misdemeanor to employ a person under the age of 15 years "in and about any manufacturing or other establishment using dangerous machinery," etc., without any of the conditions embodied in the former act which tend decidedly to weaken its force. According to the provisions of the latter act, it was clearly unlawful for appellee to employ appellant in the work in which he was engaged. Whatever the law may be in other jurisdictions, it is settled in this state, by an unbroken line of decisions, that an act prohibited by positive law is negligence per se, where any person is injured as a proximate consequence of such act. Street on Personal Injuries in Texas, 111 et seq., with authorities cited. The principle of law invoked by appellee, that actions to recover forfeitures and penalties imposed by statute abate with the repeal of the statute, has no application to the present case. I. G. N. R. R. Co. v. Culpepper, 38 S.W. 818, approved by Supreme Court, same case 90 Tex. 627, 40 S.W. 386. In so far as the statute affecting the quality of appellee's act in employing appellant, making it negligence per se, its subsequent repeal could have no effect. This action is not based upon the statute in the sense that would cause the repeal of the statute to abate the action.'

"In I. G. N. R. R. v. Culpepper, 38 S.W. 818, the court had under consideration the fellow servants act of 1891 (Laws 1891, c. 24); it was contended that the act of 1893 (Laws 1893, c. 91) repealed the act of 1891, and an action brought under the act of 1891 must abate. Chief Judge James, speaking for the court, says:

"`It is * * * contended that the act of 1891, being repealed in 1893 by the new act on the subject of fellow servants, requires this case to be considered as at common law, although the latter act contained and continued the same provision as in the former, so far as the issues here involved are concerned. In reference to the last of these questions, we have no hesitation in deciding that the law of 1891 is the law of this case. Its repeal would not affect its force as fixing or determining the liability of defendant in cases which arose under its provisions.'

"A writ of error was granted, and the case went to the Supreme Court. The opinion is by Judge Gaines, 90 Tex. 627, 40 S.W. 386. That eminent jurist says:

"`The collision occurred on the 5th day of November, 1892, while the act of March 10, 1891, in relation to fellow servants of railroad companies was in force. That act was repealed by that of May 4, 1893 (Laws 1893, p. 121), but the Court of Civil Appeals correctly held, as we think, that the repeal did not affect the question of liability in this case.'

"The only case cited against this doctrine and finding is a liquor bond case; a case of statutory penalty for a violation of the law. Goodrich v. Wallis, 143 S.W. 285. Obviously a penal statute, or a statute imposing statutory penalties in which the defendant has no chance or choice to offer evidence to reduce damages or penalties assessed, cannot be the subject of the same construction as a remedial statute in a civil cause of action. Tunstall v. Wormley, 54 Tex. 476, is also cited, but is not in point. In that case it was held only that a corporation attempted to be chartered under a law that had been repealed had no standing in court. Certainly not; it had no legal existence. The court says:

" `It follows that as the petition of the plaintiff in this case shows that the Missionary Baptist Church of Brazoria was never organized under the provisions of the act of 1874, that no charter was drawn up for it or filed in the office of Secretary of State, it did not form a "private corporation"; it was incapable, as a corporation, of suing or being sued, or of holding real estate; that it had no corporate name or existence, and therefore that the demurrer of the defendant should have been sustained.'

"In this case the plaintiff is a natural person, and he sued as such, and the case of Tanstall v. Wormley, cited in the opinion, has no application.

"Cain v. State, 20 Tex. 364, is also cited. This is a criminal case in which defendant is charged with selling intoxicating liquors without a license. It was probably cited in the opinion in error. Manifestly, a different rule obtains in a criminal case.

"Rogers v. Watrous, 8 Tex. 64, 65, 58 Am.Dec. 100, cited, only holds that a subsequent statute revising the subject of a former one operates as a repeal thereof; about which there is no argument. The opinion holds that a change of venue could not have been had in the case because at the time of the order the law had been amended.

"This identical question, in a liquor bond case (Jessee v, De Shong, 105 S.W. 1011), was decided, by the Court of Civil Appeals at Texarkana, directly contrary to the opinion of this court in the instant case.

"In that case a suit was brought on a liquor dealer's bond to recover the statutory penalty as liquidated damages; the suit was brought under article 5060g, R.S. 1895, which was superseded by the Baskin-McGregor Law of 1907 (Laws 1907, c. 138), which, like the instant case, repealed the former law, if at all, by implication only. The suit was brought March 9, 1906, and tried August 13, 1907, after the act of 1907 (30th Legislature) took effect. It was urged on the trial, and in the Court of Civil Appeals, that the act of the 30th Legislature repealed the former law, and pardoned all offenses and canceled all causes of action, and abated all suits. This effect was denied by the court, citing, among others, McMullen v. Guest, 6 Tex. 275, and Pacific v. Joliffe, 69 U.S. (2 Wall.) 450, 17 L. Ed. 807. The court says in conclusion:

"`This suit was not abated, and the old remedy as to the aggrieved party remains.'

"Section 3 of the final title to the Revised Statutes is as follows:

"`Sec. 3. That the rule of the common law that statutes in derogation thereof shall be strictly construed shall have no application to the Revised Statutes; but the said statutes shall constitute the law of this State respecting the subjects to which they relate; and the provisions thereof shall be liberally construed with a view to effect their objects and to promote justice.'

"Section 5 of final title provides:

"`That the repeal of any statute, or any portion thereof, by the preceding section, shall not affect or impair any act done, or right vested or accrued, or any proceeding, suit, or proposition, had or commenced in any cause before such repeal shall take effect, * * *.'

"`The Constitution, § 16, art. 1, provides:

"`No bill of attainder, ex post facto law, retroactive law, or any other law impairing the obligation of contracts, shall be made.'

"It has been held that the provision against retroactive laws is not limited to such laws as affect the obligation of contracts, but the term is to be applied to laws generally, whether relating to torts or contracts. De Cordova v. Galveston, 4 Tex. 474. Every statute which takes away or impairs vested rights, acquired under existing laws, * * * must be deemed retrospective.

"Construing this provision of the Constitution in Keith v. Guedry, 114 S.W. 396, the Court of Civil Appeals says:

"`A "retroactive law" is one made to affect acts or transactions occurring before it came into effect, or rights already accrued, and which imparts to them * * * effects which were not inherent in their nature in the contemplation of the law as it stood at the time of their occurrence. It gives a right where none * * * existed, or takes away one which before existed,' citing authorities.

"In Mellinger v. City of Houston, 68 Tex. 36, 3 S.W. 249, Judge Stayton, speaking for the court, says:

"`Laws are deemed retrospective, and within constitutional prohibition, which by retrospective operation destroy or impair vested rights, or rights to do certain actions, or possess certain things, according to the law of the land; * * * but laws which affect the remedy merely are not within the scope of the inhibition unless the remedy be taken away altogether, or incumbered with conditions which would render it useless or impracticable to pursue it.'

"When Jimmy Anderson brought his suit the law protected him in that right; it vested him with the cause of action on which he sued.

"We are mindful that the court has held that no one had a vested right in a statutory `penalty,' e. g., to recover on a liquor dealer's bond, for the policy of the law does not favor penalties and forfeitures; but we insist that a cause of action for statutory negligence stands upon a different footing; the cause of action having accrued, the Legislature could not (and did not) pardon the same, and the subsequent passage of a law on the same subject could not (and did not) deprive plaintiff of his right to recover against the wrongdoer. McMullen v. Guest, 6 Tex. 275; Collins v. Warren, 63 Tex. 311; Jessee v. De Shong, 105 S.W. 1011; James v. Oakland Traction Co., 10 Cal. App. 785, 103 P. 1083.

"The question then resolves itself down to this: That one case, Goodrich v. Wallis, a suit on a liquor dealer's bond to recover a statutory penalty, holds that the repeal of the specific act of the Legislature on which the suit was brought operated to abate the suit. Against this is the express holding of the Court of Civil Appeals in Jessee v. De Shong, 105 S.W. 1011; the Court of Civil Appeals in the case of I. G. N. R. R. v. Culpepper, 38 S.W. 818, construing the same proposition under the fellow servants act; the Supreme Court in the same case, adopting the construction and holdings of the Court of Civil Appeals, 90 Tex. 627, 40 S.W. 386; and a former unanimous decision of this court in Stirling v. Bettis, 159 S.W. 915, citing both the Culpepper cases above, without any objection or dissent from any member of the court at that time. And this view of the law is further supported by McMullen v. Guest, 6 Tex. 275, and the constitutional provision against retroactive laws and the decisions thereunder.

"It is therefore unnecessary to go out of the state for authorities; our own Supreme Court has spoken at least twice on the subject, and in no uncertain language:

"`The collision occurred on the 5th day of November, 1892, while the act of March 10, 1891, in relation to fellow servants, * * * was in force. That act was repealed by that of May 4, 1893 (Laws 1893, p. 121); but the Court of Civil Appeals correctly held, as we think, that the repeal did not affect the question of liability in this case.' Supreme Court in I. G. N. v. Culpepper, 40 S.W. 386.

"The Court of Civil Appeals used the following language in passing upon this question:

"`We have no hesitation in deciding that the law of 1891 is the law of this case. Its repeal would not affect its force as fixing or determining the liability of defendant in cases which arose under its provisions.' I. G. N. v. Culpepper, 38 S.W. 818.

"This court, speaking through Judge Reese, in Stirling v. Bettis, in citing the above authorities, adds thereto the following pertinent remarks:

"`In so far as the statute affected the quality of appellee's act in employing appellant, making it negligence per se, its subsequent repeal could have no effect.'

"Since the question to be determined is whether or not railroads are within the classes of employment prohibited by article 1050 of the Penal Code, the legitimate inquiry, it occurs to us, is to ascertain the purpose of the Legislature in the passage of the act in question, and not to apply a technical rule of doubtful application.

"What was the purpose of the Legislature in the passage of this act? Manifestly it was the intention of the lawmakers to throw a shield about children of tender age whose economic condition necessitated their entering into the industrial world for the purpose of gaining a livelihood.

"Appellant says in its brief, and the court in its opinion, that had the Legislature intended to include the great system of railroads within the inhibition, the Legislature would have named them. The court says that, if the statute in question is applicable to railroad companies, such companies are forbidden to employ a child under 15 years of age in any capacity whatever, solely because they, in some places and manner, use dangerous machinery. Obviously, it seems to us, this was not the intention of the Legislature. Would the court say that a manufacturing plant, for instance in Houston, Tex., would be prohibited from employing a boy as office boy in a branch office they maintained in Galveston, Tex., 50 miles from the dangerous machinery which they used in their manufacturing plant? We think not. Neither would a railroad company incur the penalties of article 1060, should they employ an office boy or a child under the age of 15 years, in some character of employment not at or near their establishment where their dangerous machinery was used. It is the employment in and around dangerous machinery that is unlawful, and not the employment by a concern which might, in the course of its business, use a dangerous machinery distant from the place where the child is employed. What if appellee had been employed in a machine shop in the railroad yards repairing locomotives, assisting in moving them about the roundhouse, and doing other work of the same character? Would appellant be guilty of violating the statute?

"We think there is no escape from the proposition that the Legislature intended to include in this act every character of establishment where dangerous machinery was used; and since the words of general import, `other establishments using dangerous machinery,' constitute an enlargement of the statute, they obviously did not intend, under a doubtful rule of construction, to exclude any character of an establishment where the lives of children were imperiled.

"If it be conceded, and we think it must, that the intention of the Legislature in the passage of this act was to protect the lives and health of the children of this state, then we think it must logically follow that a railroad, in places where, in carrying on its business, it uses dangerous machinery, is prohibited, within the meaning of this act, from employing children. If it were true that the maxim `ejusdem generis' was a rule, ironclad in that it confined, with respect to the intent of the Legislature, words of general import to the class specifically enumerated, then appellant's contention and the court's opinion might be correct. But it is nowhere contended that the rule itself is other than a rule of construction employed as an aid in determining the intent of the Legislature, And if it be employed as a rule to defeat the intention of the Legislature, then the equitable reason for the rule no longer exists, and, the reason for the rule failing, the rule itself must fail. If it appear, upon the face of the statute, the intention of the Legislature, then there is no necessity of invoking any rule to aid in the proper construction of it.

"The intention of the Legislature being obvious from the whole statute, we need no rule of construction to interpret its provisions.

"But the court says that if the Legislature had intended to include railroads the Legislature would have named them. Why should they have named them? If it were necessary to name them in the statute to include them, then it follows that it was necessary to name them to exclude them.

"Why did the Legislature not say that the provisions of the act should not apply to railroads? The statute says, `other establishments using dangerous machinery.' Why, if the Legislature intended that the act should not apply to railroads, did they not say, `provided this act shall not apply to railroads'? There is no more reason to say that they must be named to bring them within the meaning of the above clause than to say they should be named to exclude them.

"We hardly deem it necessary to call the attention of this court to the fact that the Legislature has, in numerous instances, so often in fact that it has become a legislative practice acquired from experience and knowledge of the decisions of the courts of this state, negatively declared that which they do not wish to be incorporated within the meaning of a statute. Indeed, it is a practice so well understood that its omission would be a legislative anomaly.

"In the Employers' Liability Act (Vernon's Sayles' Ann.Civ.St. 1914, arts. 5246h-5246zzzz) (and we mention this one only because of its prominence), it is specially provided by section 2 that the act shall not apply to railroads and several other characters of employment there mentioned. Why should the Legislature say that it should not apply to railroads if they did not want it understood expressly that they were legislating for that particular kind of business? The court is, of course, familiar with numerous other acts of the Legislature wherein they have expressly provided that certain things should not be affected by the provisions of the particular act.

"That the Legislature intended that article 1050 should apply to railroads, we think, is self-evident by the very nature and purpose of the act itself; hence to say that, under a technical rule of construction, they may be excluded from its provisions is, we think, violative of the real purpose and intent of the Legislature.

"The majority opinion does not attempt to cite any authorities to support the definition of `establishment,' the simple holding being that a railroad operating a switching engine in a switching yard is not an establishment using dangerous machinery, as defined in the act referred to.

"If we look to the Revised Statutes, we find a rule laid down for the defining and interpretation of words and terms:

"`Article 5502. The following rules shall govern in the construction of all civil statutory enactments:

"`1. The ordinary signification shall be applied to words, except words of art or words connected with a particular trade or subject matter, when they shall have the signification attached to them by experts in such art or trade, or with reference to such subject matter. * * *

"`6. In all interpretations, the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil and the remedy.'

"Our own courts have frequently held that the intent may be shown by the body of the act (Snyder v. Compton, 87 Tex. 374, 28 S.W. 1061), and that the courts are not bound by rules of grammar, and may disregard them to give the manifest legislative intent. W. P. Oil Co. v. State,48 Tex. Civ. App. 162, 106 S.W. 918. That the spirit will control the strict letter if the legislative intent can be better gathered therefrom. Cannon v. Vaughan, 12 Tex. 399; Brooks v. Hicks, 20 Tex. 666; Simpson v. Brotherton, 62 Tex. 170. And the intention will prevail over the literal sense of the terms employed. Campbell v. Cook, 24 S.W. 977.

"In Edwards v. Morton, 92 Tex. 152, 46 S.W. 792, it was expressly held that the intention of the Legislature in enacting a law must be enforced, when ascertained, though not consistent with the strict letter of the statute.

"Courts, in the construction of statutes, are not confined to the literal meaning of the words employed, but the intention may be collected from the cause or necessity of the act. Oliver v. State,65 Tex. Crim. 150, 144 S.W. 604. And when the intention of a statute is plainly discernable from its provisions, it is as obligatory as the letter of the statute, and will even prevail over the strict letetr. Oliver v. State, supra.

"When the words are not explicit, the intention is collected from the occasion and necessity of the law, and from the mischief and objects and remedy in view, and the intention is to be presumed according to what is consonant to reason and good discretion. Cannon v. Vaughan, 12 Tex. 399. Such even was the rule of construction in criminal cases; for greater reason, in civil cases. Croomes v. State, 40 Tex. Crim. 672, 51 S.W. 924,53 S.W. 882. See, also, on the same subject, Hidalgo v, Davidson,102 Tex. 539, 120 S.W. 849; Padgitt v. Railway, 104 Tex. 249, 136 S.W. 442.

"The Legislature is presumed to have used words in the sense in which they are ordinarily understood. Turner v. Cross, 83 Tex. 218, 18 S.W. 578,15 L.R.A. 262. A construction should not be adopted which would render the law absurd or meaningless, when a rational, expressive, and wholesome meaning may be ascertained. Texas Pacific v. Taylor,54 Tex. Civ. App. 419, 118 S.W. 1097.

"Keeping these principles in mind, let us consider the act itself:

"`Chapter 46. "`An act to regulate the employment of children in factories, mills, mines, quarries, distilleries, breweries, manufacturing or other establishments using dangerous machinery, in manufactury of goods, for immoral purposes or when their health may be impaired or morals debased, or to send such child to any disorderly house, bawdy house, or house of assignation, or to permit such child to go to any such house, and to provide penalties for violation of same, and to declare an emergency.

"`Be it enacted by the Legislature of the state of Texas:

"`Section 1. Any person, or any agent, or any employee of any person, firm or corporation who shall hereafter employ any child under the age of fifteen years to labor in or about any manufacturing or other establishment using dangerous machinery, or about the machinery in any mill or factory, or in any distillery, brewery, or to labor in any capacity in the manufacture of goods for immoral purposes * * * shall be deemed guilty of a misdemeanor. * * *

"`Sec. 4. The fact that there is now no adequate law to prohibit the employment of children of tender age in the factories and other hazardous employments of this state, to the great injury of the children and of society generally, creates an emergency,' etc.

"It will thus be seen, by the title, that it is an act to regulate and prohibit the employment of children in factories, mills, mines, quarries, distilleries, breweries, manufacturing or other establishments using dangerous machinery.

"Employment in the first seven enumerated is prohibited, without regard to the class, kind, or character of machinery used; but, of the classes of employment not specifically enumerated, the act applies only if in the particular establishment dangerous machinery is used. In other words, employment absolutely and unconditionally is prohibited by the title, in factories, mills, mines, quarries, distilleries, and breweries; and by this title employment is also to be prohibited in all other establishments only if the dangerous machinery is used.

"But if we look to section 1, the prohibiting section specifically enacted, we find that such employment is prohibited only in any manufacturing or other establishment using dangerous machinery. And by section 4 the act creates the emergency, because there is no adequate law to prohibit the employment of children of tender years in factories and other hazardous employments.

"The evil sought to be remedied unquestionably was the employment of children in hazardous employments; and the greater the hazard, the greater the necessity for the legislation. If there is any business or establishment more dangerous than a railroad yard used for switching cars in the night time, the writer is not aware of it.

"The opinion of the court centers on the one proposition advanced therein, to wit, that the Legislature, by the use of the words `other establishments using dangerous machinery,' did not mean such establishments as railroads, but meant such other establishments as are akin to the one specifically mentioned.

"To combat this we advance this proposition:

"(1) No specific establishment is mentioned; the term factory is a general one (manufacturing), and just as general as the word `establishment.' Hence the Legislature intended to prohibit the employment of children, first in manufacturing establishments; and, second, in any establishment using dangerous machinery.

"(2) That a railroad operating a yard where cars are switched by an engine is an establishment using dangerous machinery.

"We now have a common word of the English language to define and interpret, and by virtue of the statute we accept the common definition thereof. Though no authorities are cited in the opinion to support the interpretation given by the court, we do find one, to wit, Webster's Unabridged Dictionary:

"`Establishment: The place in which one is permanently fixed for a residence or business.

"`Equipment, etc., with which one is fitted out, also any other office or place of business with its fixtures, including grounds, and furniture.

"`That which serves for the carrying on of a business.'

"Therefore the railroad yard was the `establishment' of the defendant; it was the place in which it was permanently fixed for its business; it was its office or place of business, its grounds for that purpose; the place which served for the carrying on of its business. It operated dangerous machinery therein. In Texas Pacific v. Barrett, 14 C.C.A. 373, 67 F. 214, it was expressly held that a locomotive was a dangerous machine. Opinions of Attorney General of Texas 1911.

"The Attorney General of Texas has construed the following act (Laws 1909, p. 61, § 11), which makes it a misdemeanor to hinder inspectors in inspecting various places of employment. The act is as follows:

"`Any owner, manager, superintendent or other person in charge or control of any factory, mill, workshop, mine, store, business house, public or private work, or other establishment or place, where five (5) or more persons are employed at work, who shall refuse to allow any officer or employee of the said Bureau of Labor Statistics to enter the same, or to remain therein for such time as is reasonably necessary, or who shall hinder any such officer or employee, or in any way prevent or deter him from collecting information, shall be deemed guilty of a misdemeanor,' etc.

"The Attorney General says:

"`While railroads are not in terms named in this act, it is broad enough to include them.' Opinion Attorney General of Texas 1912.

"The opinion of the court has sought to read into section 1 the title, by stating that employment of children about machinery in any mill or factory is prohibited, and applies the term `other establishments' to such as mills and factories, which are referred to as specifically described and enumerated. We can hardly assent; for while the title is rather specific as to the first seven employments mentioned, the sections enacted do not refer to them specifically, the Legislature evidently preferring to prohibit the employment in general terms, and thus take no chance of not fully covering the subject. By the emergency clause, which was enacted, the purpose of the law is made plain; that is, to prohibit employment of children of tender years in factories and other hazardous employments; and to construe the law, as has been done by the opinion herein, we respectfully submit, would defeat the legislative intent and thwart the legislative will. There are scores of employments in `establishments using dangerous machinery' which are not `factories,' nor are they any of the specific employments or establishments enumerated in the title or caption.

"And if there be doubt as to whether the defendant is an `establishment,' within the meaning of the act, then unquestionably, from the emergency clause, the spirit of the law was to prohibit all hazardous employments, and the case falls fairly within the following:

"`The spirit of the act will control the strict letter, if the legislative intent can be better gathered therefrom, and the intent will prevail over the literal sense of the terms employed.' Cannon v. Vaughan, 12 Tex. 399; Brooks v. Hicks, 20 Tex. 666; Simpson v. Brotherton, 62 Tex. 170; Campbell v. Cook, 24 S.W. 977.

"`When the words used are not explicit, the intention is to be collected from the occasion and necessity of the law, and from the mischief and objects and remedy in view.' Cannon v. Vaughan, supra.

"If it be said that the case of Stirling v. Bettis Mfg. Co. is not authority in support of our proposition that the act of 1917 did not repeal the act of 1911, being chapter 46, Acts of the 32d Legislature, p. 75, in the sense that all acts done in violation of article 1050 were pardoned by subsequent repeal of the act on the ground that the determination of this question was not necessary to a decision in that case, we reply that the case of Culpepper v. I. G. N. R. R. Co.,90 Tex. 627, 40 S.W. 386, was cited and approved by this court in that opinion.

"If the question has not been expressly decided in this state, it has in other states, and is discussed exhaustively in the case of James v. Oakland Traction Co., 10 Cal. App. 785, 103 P. 1082.

"To appreciate the opinion it must be read, and we can only quote such excerpts from it as are pertinent. The court will recall that California, in the Civil Code, has provisions of a similar character as has this state, contained in section 3 and section 6 of the final title of the Revised Civil Statutes with reference to the repeal of a statute not affecting or impairing any act done, or right vested or accrued, or any proceeding, suit, or prosecution had or commenced.

"The case of James v. Oakland Traction Company was an action by the plaintiff to recover damages for personal injuries alleged to have been inflicted upon the plaintiff through the negligence of the defendant. The plaintiff alleged that the street car on which he was riding was exceeding the speed limit within the corporate limits of the city, which was eight miles per hour; the Legislature of that state having provided the rate of fare on cars, and the rate of speed that they were permitted to travel. The Legislature of the state subsequently repealed that law eliminating the provision with reference to speed, and it was contended by defendant that, the act having been repealed, the court erred in the submission of the question of whether or not defendant was violating that act since it has been repealed.

"The court says: `Clearly, we think, the provision of section 501 of the Civil Code, fixing the maximum rate of speed of street cars when traveling over the streets of a city, is more than a rule of evidence. It is a rule of property, for a vested right is property, whatever may be the nature or condition of the object of such right; that is to say, that "a vested right of action is `property' in the same sense in which tangible things are property, and is equally protected against arbitrary interference." Cooley's Const. Lim. (4th Ed.) p. 449. Of course, a distinction is to be observed between the right of action and the remedy; for the right to a particular remedy is not a vested right, unless the destruction of the remedy necessarily operates to destroy the right of action, in which case an act abrogating the remedy could not, obviously, have a retroactive effect.' `It would be extending this opinion to an unnecessary length,' says the court, quoting from Williams v. Johnson, 30 Md. 500, 96 Am.Dec. 616, `to review in detail the authorities relied upon by the counsel for the appellee. It is sufficient to say that upon examination they will be found to be cases arising upon penal statutes, where it was held that the action was defeated by the repeal of the law; or where a statute conferring an executory right was repealed before the right became executed; or where it was held that the remedy, procedure, and even the statute of limitation, may be changed or modified without impairing the right of action or the obligation of the contract. But no case can be found in which it has been held that a right of action, founded upon the municipal law of a country, is defeated by change or abrogation of the law.'

"Again the court says, quoting from Hope Mutual Insurance Co. v. Flynn,38 Mo. 483, 90 Am.Dec. 440: `It is not within the constitutional competency of the Legislature to annul by statute any legal ground on which a previous action is founded, or to create a new bar by which said action may be defeated.'

"Quoting from Dash v. Van Kleeck, 7 Johns. (N.Y.) 477, 5 Am.Dec. 306: `The very essence of a new law is a rule for future cases. The construction here contended for on the part of the defendant would make the statute operate unjustly. It would make it defeat a suit already commenced upon a right already vested. This would be punishing an innocent party with costs, as well as divesting him of a right previously acquired under the existing law. Nothing could be more alarming than such a subversion of principles.' Citing Bailey v. P. W. B.R. R. Co., 4 Har. (Del.) 399, 44 Am.Dec. 593; Terrill v. Rankin, 2 Bush 453, 92 Am.Dec. 500; Creighton v. Pragg, 21 Cal. 115; Pacific M. S. Co. v. Joliffe, 2 Wall, 450, 17 L. Ed. 805; Vanderker v. Rensselaer, etc., Ry. Co., 13 Barb. (N.Y.) 393; Taylor v. Woodward, 10 Cal. 90.

"Again the court says: `We shall not review these cases, for it is enough to say that they are not in point here because they involve actions deriving the authority for their institution and maintenance entirely from the statute itself, as, for instance, actions for recovery of statutory penalties and the like. * * * With this declaration we can find no fault; but, as we have already said, the action here is not for the enforcement of or recovery upon a right "created solely by statute and dependent upon the statute alone." It is a right which existed, we may say at the expense of repetition, independently of the statute, which went no further than to prescribe a condition constituting an additional element entering into the contract out of which the right of action arose. It will not be questioned, we apprehend, that the principles herein discussed are applicable alike to cases of tort or actions arising ex delicto, as well as to those sounding in contract. This proposition is so well settled that we shall content ourselves with the mere mention of some of the innumerable authorities establishing and confirming it.' Chalmers v. Sheehy, 132 Cal. 465, 64 P. 709, 84 Am. St. Rep. 62; Melvin v. State, 121 Cal. 24-26, 53 P. 416; Hunsinger v. Hofer, 110 Ind. 390,11 N.E. 463; Cooke v. Cooke, 43 Md. 522; Miner v. Warner, 2 Grant Cas. (Pa.) 448; Martin v. Walker, 12 Hun. (N.Y.) 46; Weir v. Day, 57 Iowa 84,10 N.W. 304."

In my judgment the motion for rehearing should have been granted, and the trial court's judgment affirmed.