Anderson v. The Uncle Sam Oil Company
Decision Date | 06 March 1920 |
Docket Number | 22,535 |
Parties | ROY W. ANDERSON, Appellee, v. THE UNCLE SAM OIL COMPANY, Appellant |
Court | Kansas Supreme Court |
Decided January, 1920.
Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. STATUTE--Authorizing Recovery of Attorney's Fee Unconstitutional. That part of chapter 187 of the Laws of 1893, sections 5873-5879 of the General Statutes of 1915 which provides for an attorney's fee, violates that part of the fourteenth amendment to the constitution of the United States which reads:
"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of . . . property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."
2. TENDER--Valid Tender. "A tender to be valid must be without conditions, absolute." (Shaw v. Sears, 3 Kan. 242, syl.)
3. JURISDICTION--Appeal--Amount in Controversy. If a constitutional question is presented, an appeal will not be dismissed, although the amount in controversy in the supreme court is less than $ 100.
Edward J. Flemming, of Tulsa, Okla., for the appellant.
James A. Brady, of Cherryvale, for the appellee.
The plaintiff sued to recover $ 150 wages and $ 7.28 expenses incurred, and recovered judgment for $ 157.28, and costs, and $ 40 attorney's fee. The defendant appeals.
The plaintiff had been employed by the defendant, a corporation, as superintendent of its refinery at Cherryvale, at a salary of $ 200 a month. This action was brought to recover $ 150 of the wages earned during the month of August, 1918. Part of the wages, $ 50, for that month had been paid. The plaintiff had incurred an expense of $ 7.28 in and about the defendant's business. Before the action was commenced the defendant tendered to the plaintiff a check for $ 157.28. On this subject the following evidence was introduced:
"Q. Before you brought this suit did not he tender you a check on The Uncle Sam Oil Company for $ 157.82? A. They offered me a check for that amount. I refused to accept it because I had another agreement with them where they were owing me $ 200 more, and this check that was made to receipt that part in full to date. And I could not very well take that check and lose the other $ 200.
. . . .
To support this contention it is argued that the law "does not apply to all employers of labor who are incorporated, i. e., it does not apply to (a) public corporations, (b) steam surface railway corporations, or to (c) corporations engaged in the production of farm and dairy products."
Sections 5873 and 5879 of the General Statutes of 1915, sections 1 and 7 of the act questioned, read:
This presents a question arising under the constitution of the United States; therefore, the decisions of the supreme court of the United States are controlling.
An analysis of the argument to support the defendant's contention discloses that it is the classification made in the statute that is attacked. On the subject of classification this court, in Rambo v. Larrabee, 67 Kan. 634, 73 P. 915, said:
(Syl. P 5.)
(See, also, The State v. Butler County, 77 Kan. 527, 533, 94 P. 1004; In re Williams, 79 Kan. 212, 217, 98 P. 777; The State v. Reaser, 93 Kan. 628, 145 P. 838.)
Again, in The State v. Heitman, 105 Kan. 139, 181 P. 630, this court said:
(p. 141.)
A leading case, one that has been often cited in subsequent decisions by the supreme court of the United States, is Gulf, Colorado & Santa Fe R'y. v. Ellis, 165 U.S. 150, 41 L.Ed. 666, 17 S.Ct. 255. That action arose over a statute of Texas giving an attorney's fee of ten dollars to those who were compelled to resort to litigation, and were successful therein, to collect bona fide claims against railway companies, "for personal services rendered or labor done, or for damages, or for overcharges on freight, or claims for stock killed or injured by the train of any railway company." (p. 151.)
. . . .
"While good faith and a knowledge of existing conditions on the part of a legislature is to be presumed, yet to carry that presumption to the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminating legislation is to make the protecting clauses of the Fourteenth Amendment a mere rope of sand, in no manner restraining state action.
. . . .
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