District Judge, sitting in place of MR. JUSTICE MYERS, disqualified, delivered the opinion of the court.

In 192'4 the defendant was constructing a line to be used in the transmission of electric power and employed plaintiff, then under sixteen years of age. The particular purpose for which plaintiff was employed was to drive a team and with the team drag logs cut on the right of way for the line off the right of way, and to drag and distribute for use along the line electric light poles. He was dragging off the right of way a log when he was told by the foreman in charge of the work to return to the place where they were then trimming a tree for another load. Obedient to this instruction, he came back to the place, but left his team standing and walked some twenty or thirty feet and leaned up against the bult end of the tree which was then being trimmed. The butt end of the tree was resting upon the stump and the other end was lying on the ground. The plaintiff had been in the position voluntarily taken by him when a limb supporting the tree in its position was cut off and the trunk of the tree rolled, causing the butt end to leave the stump, and the trunk of the tree knocked the plaintiff down and rolled on to him, causing injuries to recover for which this action is prosecuted. ’ .

At the time of the employment of the plaintiff, defendant knew that he was under the age of sixteen years. For the injuries sustained by plaintiff, the defendant, with the written consent of plaintiff’s father and mother, paid direct to plaintiff and plaintiff accepted and receipted for all payments due under Compensation Plan No. 1 of the Workmen’s Compensation Act of the State of Montana (Rev. Codes 1921, sec. 2970 et seq.). Thereafter plaintiff filed the complaint in this case, in which he alleges that while plaintiff was so employed by the defendant he was directed by the foreman to stand by with his team while the foreman and another man, also em*63ployed by the defendant, were cutting off a limb of a tree, and to hold himself in readiness with his team to haul away the logs cut by the defendant, and, while standing at his place of employment, he stood in close proximity to the trunk of a tree, one end of which was lying on a stump, having been severed from the stump, and the other end of which tree was lying on the ground, when a limb of the tree was severed from the trunk, depriving the trunk of its support, and the trunk immediately rolled off the stump and over and against the plaintiff. He further alleges that the defendant, well knowing that he was in the place where he was and subject to the danger of being injured by the fall of said tree and the rolling of the same on the ground, wholly failed and neglected to warn the plaintiff of his danger and to explain the danger to him to which he was subject by being in said place, and that the injuries were received by plaintiff as a direct result of, and were caused solely by, the negligence of the defendant in failing to warn the plaintiff of the danger incident to his employment.

Plaintiff alleges that defendant at all times well knew that plaintiff was under the age of sixteen years, and that the work for which he was employed, and the manner in which the work was done, and the tools and appliances used in connection with said work, were dangerous in character, and during the whole of said employment the defendant employed the plaintiff in violation of the terms of section 3095 of the Revised Codes of Montana of 1921, and other laws of the state of Montana relating to employment of child labor, and employed the plaintiff without an age certificate as required by the provisions of section 3098 of the Revised Codes, and that by reason of the fact that plaintiff was unlawfully employed by the defendant, the plaintiff was not and is not subject to the provisions of the Workmen’s Compensation Act of the state of Montana, or bound thereby, and elects to bring this action at law to recover damages for his injuries hereinbefore complained of.

*64A trial resulted in a verdict for plaintiff, and defendant prosecutes this appeal from the judgment entered in accordance with the verdict.

It is first necessary to consider whether or not the employment of plaintiff by defendant was a violation of section 3095, Revised Codes of 1921, known as our Child Labor Law. So far as it is material here, the section reads as follows: “Any person * * * who shall knowingly employ or permit to be employed any child under the age of sixteen years, to render or perform any service or labor * * * in, on, or about any mine, mill, smelter, workshop, factory, steam, electric, hydraulic, Or compressed-air railroad, or passenger or freight elevator, or where any machinery is operated * * * or in any occupation not herein enumerated which is known to be dangerous * * * shall be guilty of a misdemeanor and punishable as hereinafter provided.”

Clearly, if the employment of plaintiff was a violation of this law, it is by reason of the provision “or in any occupation not herein enumerated which is known to be dangerous,” for the occupation of constructing a power line is not one specifically enumerated. Defendant asserts that the rule of ejusdem generis must be applied in construing this statute, and the occupation in which the plaintiff was employed, not being of the same kind and character as those specifically enumerated, does not come within the purview of the general clause. The rule ejusdem generis is only a rule intended to aid the court in arriving at the intention of. the legislature and cannot be invoked where its application would result in a disregard of plain and unambiguous language used in the statute. In this instance to apply the rule would be to refuse to give to the words “not herein enumerated” any effect. They would be surplusage, and the general clause would have the same meaning if it read, “or in any occupation known to be dangerous.” Our conclusion is that by the general clause a separate class of occupations is designated, independent of and in addition to those specifically named, in which the employment under *65the age of sixteen years is an offense, unless it is void, as insisted by defendant, because uncertain.

The statute is penal rather than remedial. In section 336, Lewis’ Sutherland on Statutory Construction, second edition, the author says: “Remedial statutes are such as the name implies, embracing a great variety of detail; those enacted to afford a remedy, or to improve or facilitate remedies existing for the enforcement of right and the redress of injuries; and also those intended for the correction of defects, mistakes and omissions in the civil institutions and administrative policies of the state.”

The statute under consideration creates a misdemeanor and provides for its punishment. Omitting the provision denominating the act of employing a child under sixteen years of age in the occupations enumerated a misdemeanor, and the section prescribing the punishment, section 3095 is barren of meaning. It would be a useless collection of words.

“Penal laws, strictly and properly, are those imposing punishment for an offense committed against the state, and which, by the English and American Constitutions, the executive of the state has the power to pardon.” (Huntington v. Attrill, 146 U. S. 657, 36 L. Ed. 1123, 13 Sup. Ct. Rep. 224.)

Evidently the legislature considered the question of the employment of children under sixteen years of age in certain occupations as an injury to the public, and therefore denounced it as a misdemeanor and punishable as such, although injury might not result to any particular individual; the idea of the infliction of the punishment being for the public good, and to deter others from the commission of the offense.

What is the meaning of “any occupation * * * known to be dangerous”? “Occupation” is synonymous with calling, trade, business, or profession, and in order to come within the class created must be such as is “known to be dangerous,” not to an individual but to the public in general. It must be commonly reputed to be considered dangerous by the public. There are very few, if any, industrial pursuits but what, at times, a person working in that occupation, owing *66to the then condition, is working in a dangerous place, and at work that is dangerous, but that does not create the “occupation” one known to be dangerous. A child employed in a kitchen of a private home might be working under conditions, and owing to the then surroundings, at dangerous work in a dangerous place, but it would hardly be asserted that the Í ‘ occupation” was one known to be dangerous. Evidence that an accident happened and as to the particular conditions under which the work was being done, and as to the place where the one injured was working, could not establish the fact that the occupation was one known to be dangerous, because if it could be so established, we know of few occupations in the field of industry which could not at times be classified as occupations known to be dangerous.

Neither can the court take judicial notice of the fact — -if it is a fact — that the plaintiff was employed in an occupation known to be dangerous. The only method by which this fact might be established would be by calling witnesses to testify as to whether or not the particular occupation was generally known to be, and recognized by the public as, a dangerous occupation, and submit the question to the jury for its determination. It would follow that in one prosecution an occupation would be declared to be known to be dangerous and the employment of a child under sixteen years a crime, while in another prosecution, being conducted at the same time, the same occupation would be declared to be not one known to be dangerous and the employment not a crime. Dependent upon the public knowledge or understanding, it would be a crime in one part of the state to employ a child under the age of sixteen years in a given occupation, which in another locality in the state it would not be a crime. A child might be employed, and no crime committed, because the occupation at the time was not known by the public to be dangerous, but thereafter, the occupation becoming known as a dangerous occupation, and the child still being employed, a crime would be committed.

*67Whether or not an act is a crime cannot be made dependent npon what an individual or any number of persons may think. It cannot be left to a jury to create a crime or designate some acts as crimes and other acts as not criminal. This is a duty that must be left to the legislature. The submission to a jury of. the determination of the question of whether or not an occupation is known to be dangerous and, therefore, the employment of a child therein a crime, would make it impossible for one desiring to give a child under the age of sixteen years employment to know whether or not in doing so he would be committing a crime. “Laws which create crime ought to be so explicit that all men subject to their penalties may know what acts * * “ to avoid.” (United States v. Brewer, 139 U. S. 278, 25 L. Ed. 190, 11 Sup. Ct. Rep. 538.) “In order to constitute a crime, the act must be one which the party is able to know in advance whether it is criminal or not. The criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness and certainty.” (Tozer v. United States (C. C.), 52 Fed. 917.) “If the legislature undertakes to define by statute a new offense, and provide for its punishment, it should express its will in language that need not deceive the common mind. Every man should be able to know with certainty when he is committing a crime.” (United States v. Reese, 92 U. S. 214, 23 L. Ed. 563.)

A prosecution for a violation of section 3095, Revised Codes of 1921, based upon the employment of plaintiff by the defendant, could not have been maintained. Had application been made to the court for leave to file an information, it would have been the duty of the court to refuse to permit the filing and, if filed, upon proper objection, the cause would have been dismissed. A crime was not committed by the employment.

This conclusion renders the other questions presented immaterial, and it is unnecessary to pass upon the same.

Cause remanded with direction to enter judgment of dismissal.

Remanded with direction to dismiss.