Commonwealth v. Reinecke Coal Min. Co.

• Citation: 117 Ky. 885,79 S.W. 287
• Parties: COMMONWEALTH v. REINECKE COAL MIN. CO.
• Decision Date: 16 March 1904
• Court: Court of Appeals of Kentucky

79 S.W. 287

117 Ky. 885

COMMONWEALTH v. REINECKE COAL MIN. CO.

Court of Appeals of Kentucky.

March 16, 1904

Appeal from Circuit Court, Hopkins County.

"To be officially reported."

John L Grayot and Clifton J. Pratt, for the Commonwealth. Gordon Gordon & Cox and C.J. Waddill, for appellee.

SETTLE J.

On October 7, 1902, the grand jury of Hopkins county found and returned in the circuit court of that county an indictment against the appellee, Reinecke Coal Mining Company, which was in words and figures as follows: "The Commonwealth of Kentucky against Reinecke Coal Mining Company. Indictment. Hopkins Circuit Court. The grand jurors of the county of Hopkins, in the name and by the authority of the Commonwealth of Kentucky, accuse the Reinecke Coal Mining Company of the offense of unlawfully and wilfully failing and refusing on or before the 15th and 30th days of August, 1902, to pay within fifteen days of the aforesaid 15th and 30th days respectively, in full amount of wages in lawful money of the United States of America, due a person engaged and employed by said company in the mining industry, said company employed the services of more than ten persons in the mining industry committed in manner and form as follows, to-wit: The said Reinecke Coal Mining Company, in the said county of Hopkins, on the 15th day of August, 1902, and before the finding of this indictment, did unlawfully and wilfully fail and refuse on or before the 15th and 30th days of August, 1902, to pay to within fifteen days of the aforesaid 15th and 30th days of August, respectively, in lawful money of the United States of America, the full amount of wages due Ben Anderson, a servant and employé of the said Reinecke Coal Mining Company, and to whom money was due by the said company for services rendered said company in August, 1902, for work done in the mining industry. The said Reinecke Coal Mining Company was, during the months of July and August, 1902, engaged in the mining industry, to-wit: mining coal, and did have in its employment during said months and engaged in mining coal at one and the same time and place persons in greater number than ten. Said Reinecke Coal Mining Company was at that time and is now a corporation doing business in Hopkins county, Kentucky, and said company was not prevented from paying said wages in said months by unavoidable casualty. Against the peace and dignity of the Commonwealth of Kentucky." The lower court sustained a demurrer to and dismissed the indictment, and from that judgment the commonwealth has appealed.

The offense for which appellee was indicted was created by subsection 1, § 2739a, Ky. St. 1903, which reads as follows: "That all persons, associations, companies, and corporations, employing the services of ten or more persons in any mining work or mining industry, in this commonwealth, shall, on or before the 15th and 30th days of each month, pay to within fifteen days of the aforesaid fifteenth and thirtieth days, respectively, each servant or employé in lawful money of the United States, the full amount of wages due each such servant or employé rendering such service, unless prevented by an unavoidable casualty: provided, however, that if at any time of payment any servant or employé shall be absent from his place, he shall be entitled to such payment at any time thereafter on demand." Subsection 2 of section 2739a forbids the blacklisting of their employés by any person, company, or corporation engaged in the business of mining, or the coercing of such employés to trade at any particular store. And subsection 3 of the same section declares that a violation of any of the provisions of the act shall be deemed a misdemeanor, and upon conviction the persons, company, or corporation so offending shall be fined not less than $50 nor more than $100 for each offense. As originally enacted, subsection 1 of section 2739a of the statute supra differed somewhat from that subsection as it now appears, in that it provided for the payment to the employé on or before the 16th day of each month of his wages for the month previous, and contained this further provision, which is not found in the present statute, viz.: "But if such person, corporation or company, after using due diligence, is unable to make said payment as above required (i. e., on the 16th of each month), he or it shall within fifteen days thereafter make out a payroll and statement of account due each employé and also a due bill for said sum bearing interest from said 16th day of the month, and deliver same to each of said employés." Ky. St. 1899. The original act was amended by an act approved March 21, 1902 (Acts 1902, p. 125, c. 60), the enacting part of which is as follows: "Be it enacted by the General Assembly of the Commonwealth of Kentucky: That section one of an act entitled 'An act concerning the employés and servants in mining work or industry in this commonwealth,' which was received by the Governor, March 2nd, 1898 [Acts 1898, p. 59, c. 15], and became a law at the expiration of ten days without the Governor's approval, be, and the same is hereby, repealed, and the following is enacted in lieu thereof." Then follows the language constituting the present subsection 1 of section 2739a, which is accurately quoted in the foregoing part of this opinion.

We are not advised as to the grounds upon which the lower court sustained the demurrer to the indictment, as the judgment is silent upon that subject, but take it for granted that it was sustained upon one or more of the several grounds argued in the brief of counsel for appellee. It is contended that the indictment charges two offenses, for which reason the demurrer was properly sustained. We question the soundness of this contention. There seems to be but one offense set out in the indictment. Reduced to the briefest statement, the charge, in substance is that appellee, on the -- day of August, 1902, unlawfully failed and refused on or before August 15 and 30, 1902, to pay to within 15 days of those dates, respectively, in lawful money, the full amount of wages due Ben Anderson, its employé, among more than 10 others, for labor performed by him in its business of mining. We...