Bryant, Labor Com'r, v. Skillman Hardware Co.

• Decision Date: 02 March 1908
• Citation: 76 N.J.L. 45,69 A. 23
• Parties: BRYANT, Labor Com'r, v. SKILLMAN HARDWARE CO.
• Court: New Jersey Supreme Court

69 A. 23

76 N.J.L. 45

BRYANT, Labor Com'r,

v. SKILLMAN HARDWARE CO.

Supreme Court of New Jersey.

March 2, 1908.

(Syllabus by the Court.)

Appeal from District Court of Trenton.

Action by Lewis T. Bryant, Commissioner of Labor of the State of New Jersey, against the Skillman Hardware Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued November term, 1907, before GARRISON and REED, JJ.

Ellery Robbins, for appellant. Josiah Stryker and Robert H. McCarter, Atty. Gen., for appellee.

GARRISON, J. This action was brought to recover a penalty of $50 for the violation of section 1 of an act entitled "An act regulating the age, employment, safety, health and work hours of persons, employes and operatives in factories, workshops, mills and all places where the manufacture of goods of any kind is carried on, and to establish a department for the enforcement thereof," approved March 24, 1904, which section prohibits the employment in any of the enumerated places of any child under the age of 14 years. At the trial, which resulted in a judgment for the plaintiff, the defendant moved to dismiss the proceedings upon the ground that the summons issued therein was not indorsed in accordance with the provisions of section 219 of the revised practice act (P. L. 1903, p. 594), which motion the court denied.

The section of the practice act cited, as well as the four sections which immediately follow it in our present practice act, were originally passed on February 22, 1799, under the title of "An act relative to suits instituted by common informers" (Patterson's Laws, p. 348). This act may also be found under the above title in Nixon's Digest, p. 748, and with slight changes as a part of the practice act in Revision, p. 888.

The operation of this act, as originally passed, was therefore limited to the object expressed in its title, namely, to actions brought by common informers, and the original act makes it very plain that by the word "informer" as used therein, is meant "common informer," viz., "one who, without being specially required by law or by virtue of his office, gives information of crimes, offences or misdemeanors which have been committed, in order to prosecute the offender." Bouvier's Law Dictionary.

Upon the doctrine adopted by the Court of Errors and Appeals in the case of Hendrickson v. Fries, 45 N. J. Law, 555, the provision in question should be construed with respect to the limitation impressed upon it by its original title notwithstanding its subsequent re-enactment as part of the practice act O'Hara v. National Biscuit Company, 69 N. J. Law, 198, 5 Atl. 241.

Such construction accords with section 7 of the common informer act, which, with slight changes, forms the 223d section of our present practice act, viz., "This act shall not extend to any certain person, body politic or corporate, to whom or to whose use any forfeiture, penalty, or suit is or shall be specially limited or granted by any statute; but that every such certain person, body politic or corporate may, in such case, sue, prosecute, or inform as he or they might have done, if this act had not been made."

We think that an action brought as the present action is, by a state official by virtue of his office, is not within the provision of section 219 of the practice act and hence that the district court did not err in its denial of the motion to quash the writ of summons.

Upon the legal merits of the controversy counsel for the appellant attacks the statute under consideration upon several constitutional grounds, which will be considered in the order in which they stand in his brief.

A preliminary ground for reversal is "that the alleged violation of the act in question is not within the spirit of the act." The contention made under this head is based upon the proposition that "the spirit, object, and intention of this legislation is the promotion and advancement of education," and the argument is contained in the following interrogation: "How can the employment of a boy during vacation, who regularly attends school, be a breach within the spirit of the act?"

The plenary answer to this contention is that the object of the statute in question is not the advancement of education, but the promotion of the health, welfare, and safety of the persons to whom it applies; and that the circumstance that a minor person within its provisions attends school while otherwise employed in violation of the act instead of avoiding the act is a peculiarly obnoxious instance of its violation.

The first constitutional ground of attack upon the statute is that it violates section 1 of article 1 of the state Constitution, which is in these words: "All men are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness."

The argument advanced under this point nullifies the words "all men" in the section just quoted by making them mean "all minors," and ignores the entire mass of legislation and judicial decision that has grown up upon the practically unquestioned assumption that minors are not men, and that until they become men they are, as regards legislation aimed at their welfare and protection, wards of the state.

The citation of a few of the cases referred to in the very instructive brief of counsel for the appellee will amply illustrate the nature and extent of the state guardianship of infants. Commonwealth v. Hamilton, 120 Mass. 383; Commonwealth v. Beatty, 15 Pa. Super. Ct. 5; Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780; Tiedeman's Police Power, § 86; People v. Ewer, 141 N. Y. 129, 36 N. E. 4, 25 L. R. A. 794, 38 Am. St. Rep. 788; City of New York v. Chelsea Jute Mills (Mun. Ct.) 88 N. Y. Supp. 1085; Fitzgerald v. Alma Furniture Co., 131 N. C. 636 42 S. E. 946.

From which last-cited case may profitably be...