Cole v. Commonwealth

• Decision Date: 11 November 1937
• Citation: 193 S.E. 517
• Parties: COLE. v. COMMONWEALTH.
• Court: Virginia Supreme Court

193 S.E. 517

COLE.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 11, 1937.

Error to Hustings Court of Richmond; John L. Ingram, Judge.

Robert E. Cole was convicted of doing business as a labor agent without a license, and he brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Anthony J. Baroody, M. J. Fulton, Leon M. Bazile, and W. Griffith Purcell, all of Richmond, for plaintiff in error.

A. P. Staples, Atty. Gen., and Ralph H. Ferrell, Jr., Sp. Asst. Atty. Gen., for the Commonwealth.

BROWNING, Justice.

Robert E. Cole, the plaintiff in error here, was convicted in the police court of the city of Richmond upon a warrant for doing business as a labor agent without first obtaining a license as required by section 183 of the Tax Code of Virginia (Code 1936, Appendix, p. 2450).

Upon an appeal the case was tried in the Hustings court of the city of Richmond and the accused was again found guilty of the offense charged and a fine of $100 was imposed upon him. From this judgment a writ of error was awarded by one of the justices of this court, hence the case is before us for review.

It appears from the record that a corporation, styling itself People's Labor Union, Inc., maintained an office, or place of business, at 408 E. Marshall street, Richmond, Va.; that its corporate name was displayed upon a sign, which attracted the attention of Sylvester Poston, who was looking for employment as a laborer, for which, alone, he was fitted. Poston met Mr. Cole, who will subsequently be referred to as the defendant, at the front door and asked him for employment. The defendant told him, at first, that he had a job in New York, then he said that he had one in New Jersey which he thought would suit him, after ascertaining that Poston was familiar with farm work. The defendant further told him that the prospective employer in New Jersey wanted a man and his wife, the latter to do domestic work, but that Poston and his wife would each have to pay him $2 for union cards. This they did and they were told to be ready to depart for New Jersey on the following Saturday and that tickets would be awaiting them at the bus terminal office. When they arrived at the bus terminal the tickets were given to them. They had been told by the defendant that the cost of the tickets, which was $5.90, would have to be paid after they arrived in New Jersey.

Sylvester Poston testified that the defendant did not inform him that he would have to join the union; that all that was said to him on this subject was that he would have to pay for a card. Virginia Poston said that she knew nothing about joining the union; that the defendant did not ask her to do so. The upshot of the whole matter was that the Postons went to New Jersey bearing a sealed envelope addressed to Mr. Van Bracken, for whom thedefendant had told them they were to work at $35 a month, for both of them. For the first month's labor they were paid 10 cents each and for half of the next month they received $17, when they were discharged. How the difference between the cost of the bus transportation between Richmond and New Jersey and the $35, the contractual wage for the month, was absorbed does not appear in the record. Perhaps an answer to this inquiry is not necessary to the determination of any issue, but the absence of the information causes a wonderment which is quite natural.

The Postons returned to Richmond. They never went back to the People's Labor Union, Inc., nor to Mr. Cole, nor did they receive notice of any meetings of the alleged labor union, or of dues, accrued or accruing, nor did they attend any meetings, conferences, or assemblies of the members of such union. The fact is that they were both ordinary laborers, one a farm laborer and the other a domestic servant. Courts may be charged with judicial notice that such laborers engaged in such labor do not usually constitute the elements or personnel of what is known as a "labor union."

A labor union is defined as: "A combination or association of laborers for the purpose of fixing the rate of their wages and hours of work, for their mutual benefit and protection, and for the purpose of righting grievances against their employers." Black's Law Dictionary (3d Ed.) p. 1062.

A labor union, or organization, technically speaking, is generally composed of a personnel termed "craft, " which is a designation applied to a trade, or occupation, of the kind "requiring skill and training, particularly manual skill combined with a knowledge of the principles of the art; also the body of persons pursuing such a calling." Black's Law Dictionary (3d Ed.) p. 474; Ganahl v. Shore, 24 Ga. 17, 23.

The evidence in the case here does not show that the People's Labor Union, Inc., was of this type or character of organization.

This is made plain by the testimony of the witness S. M. Whitmore, whom the defendant introduced to testify that the People's Labor Union, Inc., is a labor union of the accepted, technical and real type, as a craft. This witness was examined, in part, as follows:

"Q. You tell the Judge the way you have described your railroad organization it is the same as the People's Labor Union?

"A. No, I say the form is pretty much the same. I did not say the type of persons, because skill is skill and unskilled is unskilled. I do not want to give it to you wrong on that; I want to give it to you clean."

The organization with which we are here dealing has incorporated within its firm name the words "labor union, " and the purposes of the corporation, as set forth in its charter, are very like the requisites of the purposes of a genuine labor union as heretofore defined, but the name of a thing and its declared purposes are worth little in determining the character of its being when those terms are at antipodes with what it actually and really does. It seems appropriate here to suggest the philosophy of the ancient saying: "Actions speak louder than words."

Without undertaking to delineate the evidence, it is sufficient to say that it cannot be impartially read without the conviction of the inescapable conclusion that the corporation in question is but an employment agency, and that the defendant was its active representative engaged in that business and doing so without the warrant of the license required by the Virginia Tax Statute, section 183.

When Sylvester Poston appeared at the office of the organization referred to, in Richmond, Va., and applied to the defendant for employment, the latter to be the intermediary, he was required to purchase two cards, as has already been said. These are designated as membership cards and bear this certification: "This certifies that Sylvester Poston of Richmond, Virginia, has been duly elected a member of the People's Labor Union, Inc., and is entitled to all of the benefits thereof."

The card issued to Virginia Poston is similar in all material respects.

These cards are urged as rather irrefutable indicia of membership in the character of labor organization within the statutory exemption clause.

As to this, the opinion of the trial court, which is quite as notable for its clearness and soundness as for its brevity, is in these words:

"I am of the opinion that the People's Labor Union, Incorporated, is not such a labor organization as is contemplated bythe statute, but, on the contrary, I am of the opinion that it is a corporation whose name bears the word 'Union' and whose object, as borne out by the facts produced here, is for the purpose of getting a fee for securing employees for employers, sometimes in the State, sometimes out of the State, in this particular instance out of the State, and, therefore, under the first and second sections of the statute, I am concluding that the defendant is guilty and fix the fine at $100."

Section 183 of the Tax Code of Virginia, which the defendant was found guilty of violating, provides, in substance, that any person who solicits, hires, or contracts with laborers, to be employed by others than themselves, and an agent of such person, except as otherwise provided, shall be deemed a labor agent, and every person who shall conduct such business, without a license, shall pay a fine of not less than $100 nor more than $500, and one who engages in the business of a labor agent shall pay therefor annually $500, but if such person engages in the business of an "emigrant agent" he shall pay annually $5,000 for the privilege in each county or city in which he operates.

The term "emigrant agent" is then defined to mean any person engaged in hiring laborers, or soliciting emigrants in this state to be employed beyond the limits of this state, and any person so doing without a license, upon being found guilty, shall pay not less than $100 nor more than $5,000, etc

After dealing with some provisos and exemptions, not germane here, the last material paragraph of the section is in these words: "This section shall not apply to representatives of labor organizations within the State of Virginia, in cases where, because of need of employment, they may direct their members to employment in other States of the Union."

The first attack made by the defendant upon the rulings of the trial court is alleged error in overruling his demurrer to the amended warrant. The two counts of this warrant are as follows:

"First Count.

"Robert E. Cole, being then and there the agent for Peoples Labor Union, a corporation, did, unlawfully solicit, hire, and contract with, laborers, male and female, to be employed by persons other than himself, without a license to conduct such business as a labor agent.

"Second Count.

"Robert E. Cole, being then and there the agent for Peoples Labor Union, a corporation, did, unlawfully engage in the business of an 'emigrant agent' in this State in hiring laborers and soliciting emigrants in this State to be employed beyond the limits of this State, without having first obtained such...