Commonwealth v. Daniel O'Connell's Sons

• Decision Date: 06 January 1933
• Citation: 183 N.E. 839,281 Mass. 402
• Parties: COMMONWEALTH v. DANIEL O'CONNELL'S SONS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

281 Mass. 402

183 N.E. 839

COMMONWEALTH

v.DANIEL O'CONNELL'S SONS.

Supreme Judicial Court of Massachusetts, Franklin.

Jan. 6, 1933.

Report from Superior Criminal Court, Franklin County; W. A. Burns, Judge.

Daniel O'Connell's Sons was convicted of violating a statute respecting wages to be paid in construction of public works, and a question was reported for the decision of the Supreme Judicial Court.

Question answered, and case remanded.

J. T. Bartlett, Dist. Atty., of Greenfield, for the commonwealth.

J. S. Begley, of Holyoke, for defendant.

RUGG, C. J.

This is an indictment for violation of St. 1931, c. 377, amending the earlier statute and now found in G. L. (Ter. Ed.) c. 149, § 26. Trial by jury having been waived, the defendant was found guilty upon the first three counts. During the trial the question of the constitutionality of that part of the statute upon which the indictment was framed was raised by the defendant. That question was reported by the trial judge for our decision at the request of the defendant after conviction. G. L. (Ter. Ed.) c. 278, § 30; Commonwealth v. McCan, 277 Mass. 199, 178 N. E. 633.

The agreed facts relevant to the question reported are in substance as follows: At the times alleged the defendant was engaged, under contract with the Commonwealth, in the construction of the Cheapside Bridge spanning the Deerfield River on the main road between Greenfield and Deerfield. The bridge was a public work. The defendant was a general contractor and had its office at the job on the Deerfield side of the bridge. Substantially all building contractors in the thickly populated section of the town of Greenfield immediately across the river from the Cheapside job office of the defendant were paying journeymen carpenters at the rate of $1 per hour for a day's wages. These journeymen carpenters were employed in the erection of a county building and private buildings other than bridges, there being no other bridge construction within the confines of Greenfield or Deerfield. The journeymen carpenters employed on the bridge were engaged principally in an inferior grade of carpentry known as form building. On the dates alleged in the indictment there was no sufficient amount of building going on in the town of Deerfield so that it could be determined what rate of wages was being paid to men doing the type of work that was being done at the bridge. The three men named in the first three counts, residents of Holyoke, were on the dates alleged duly qualified and listed as union journeymen. There was evidence tending to show that on the dates alleged these three men by reason of an arrangement, to which they consented and under which they continued to work, received wages at the rate of $.75 per hour.

The only question presented for decision is the constitutionality of the statute. Its pertinent words are these: ‘The wages for a day's work paid to mechanics and teamsters employed in the construction, addition to or alteration of public works * * * by the commonwealth, or by a county, town or district, or by persons contracting therewith for such construction, addition to and alteration of public works * * * shall be not less than the customary and prevailing rate of wages for a day's work in the same trade or occupation in the locality where such public works are under construction or being added to or altered. * * * Any person or contractor who knowingly and wilfully violates this section shall be punished by a fine of not more than one hundred dollars.’

The defendant relies mainly on Connally v. General Construction Co., 269 U. S. 385, 46 S. Ct. 126, 70 L. Ed. 322, as a controlling authority under consideration provided ‘that not less under consideration provided ‘that not less than the current rate of per diem wages in the locality where the work is performed shall be paid’ to specified employees of the State or of contractors or subcontractors in the execution of contracts with the State. Referring to these statutory words it was said at pages 393, 394 and 395 of 269 U. S.,46 S. Ct. 126, 128: ‘We are of opinion that this provision presents a double uncertainty, fatal to its validity as a criminal statute. In the first place, the words ‘current rate of wages' do not denote a specific or definite sum, but minimum, maximum, and intermediate amounts, indeterminately, varying from time to time and dependent upon the class and kind of work done, the efficiency of the workmen. * * * The ‘current rate of wages' is not simple, but progressive-from so much (the minimum) to so much (the maximum), including all between; and to direct the payment of an amount which shall not be less than one of several different amounts, without saying which, is to leave the question of what is meant incapable of any definite answer. * * * Nor can the question be solved by resort to the established canons of construction that enable a court to look through awkward or clumsy expression, or language wanting in precision, to the intent of the Legislature. For the vice of the statute here lies in the impossibility of ascertaining, by any reasonable test, that the Legislature meant one thing rather than another, and in the futility of an attempt to apply a requirement, which assumes the existence of a rate of wages single in amount, to a rate in fact composed of a multitude of gradations. To construe the phrase ‘current rate of wages' as meaning either the lowest rate or the...