Doncourt v. Danaher

• Decision Date: 13 June 1940
• Citation: 13 A.2d 868,126 Conn. 678
• Court: Connecticut Supreme Court
• Parties: DONCOURT et al. v. DANAHER et al.

13 A.2d 868

126 Conn. 678

DONCOURT et al. v. DANAHER et al.

Supreme Court of Errors of Connecticut.

June 13, 1940

Appeal from Superior Court, Fairfield County; Kenneth Wynne, Judge.

Suit by Beatrice Doncourt and others against Cornelius J. Danaher and others for an injunction against interfering with the named plaintiff's right to be employed in a restaurant between the hours of 10 p. m. and 6 a. m., and for other relief brought to the superior court in Fairfield county and tried to the court. From a judgment for defendants, plaintiffs appeal.

No error.

The exception of hotels from statute prohibiting employment of women in designated establishments between certain hours of night does not constitute an unconstitutional discrimination since Legislature might properly consider that night employment of women in certain capacities in hotels was necessary to perform proper service to public and that it was not practicable to discriminate between such women and others employed in hotels. Gen.St.Supp.1935, § 1605c.

Thomas R. FitzSimmons, of New Haven, for appellants.

Frank J. DiSesa, Asst. Atty. Gen. (Francis A. Pallotti, Atty. Gen on the brief), for appellee Danaher.

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS JJ.

MALTBIE, Chief Justice.

This is an action brought by the plaintiff Doncourt, a woman entertainer, her former employers, and a voluntary association of women entertainers in Bridgeport, seeking an injunction restraining the defendants from taking any steps to enforce a provision of § 1605c of the General Statutes, Cum.Supp.1935, which is quoted in the footnote.^[1] The trial court refused to grant the injunction, and the plaintiffs have appealed. The provision in question is that which prohibits the employment of women in the establishments mentioned in the statute between the hours of 10 o'clock in the evening and 6 o'clock in the morning. It is claimed that this provision should be construed so as to exempt from its operation women engaged in occupations such as that followed by the plaintiff Doncourt and the members of the association, or, if this is not done, that the provision is void as an illegal interference with their constitutional rights and also that the exception of hotels from the act produces an unconstitutional discrimination.

The finding, corrected in certain respects, presents the following situation: The plaintiff Doncourt, who pursued a musical education for some twelve years, has been principally engaged as an entertainer, playing the piano and piano accordion. For some three years she was employed by the plaintiffs Rudis at a restaurant conducted by them, her usual hours of employment covering the period from 9 p. m. to 1 a. m. The members of the plaintiff association are women engaged in similar occupation, employed during substantially the same hours. The labor commissioner of the state and the prosecutor of the town court of the town where the restaurant is located caused notices to be served upon the plaintiff Doncourt's employers that they must cease to employ her after 10 o'clock at night. As the need for her services is mostly after that hour, they terminated her engagement. Since then she has not been able to find anything more than occasional work because there is little demand for services of the kind she renders except in restaurants and like places, where similar situations with reference to the hours of employment exist. This is also generally true of the other members of the plaintiff association and the positions formerly held by them are now largely filled by men entertainers. The average time spent by women entertainers in their performances on any one night is between eight and twelve minutes, or, if there is more than one engagement for that night, not over thirty minutes. The work done by these women is not laborious, exacting or injurious to their health and is not similar to that done by many other women employees in restaurants, as, for example, cashiers, waitresses, checkroom girls and scrubwomen. The plaintiff Doncourt and the members of the association are not permitted by the rules of their employment to mingle with visitors to the restaurant. There is nothing in the work they do which affects the health or morals of the patrons of the restaurant.

The terms of the statute, including all women employed in the establishments named, are inclusive; there is no ambiguity in its provisions, and there is nothing in them to suggest any intent to restrict its scope as regards such women. It would transcend proper judicial construction for us to hold that there was an implied exception from the statute of women employed as are these women entertainers. Indeed, for the court to attempt to make such an exception as claimed in this case would impose upon it the obligation of considering the conditions of employment of each woman or group of women working in the establishments named, with a view to determining whether there is sufficient reason to include them, and this would go far beyond the proper function of the court. If exceptions are to be made, it is for the Legislature to determine them and define their limitations. State v. Nelson, 126 Conn. 412, 416, 11 A.2d 856.

In 1909 the Legislature passed a statute prohibiting the employment of women in any manufacturing, mechanical or mercantile establishment after 10 o'clock at night, Public Acts, 1909, Chap. 220, § 3; in 1919 this statute was amended to prohibit the employment of women between the hours of 10 o'clock in the evening and 6 o'clock in the morning, with a proviso giving the Governor certain authority to suspend the operation of the law in the event of war or other serious emergency, Public Acts, 1919, Chap. 195; and although the statute has several times been amended as to details, such a provision has ever since been in force, except that physicians, surgeons, nurses, pharmacists, attorneys at law, teachers and women engaged in social service work are now excepted, General Statutes, § 5194; 1939 Supp. § 1319e. In 1917 the statute with which we are now concerned was first passed; Public Acts, 1917, Chap. 300; and it also has been several times amended as to details. It thus appears that with certain express exceptions and the omission of women engaged in certain occupations, notably domestic service and office work, where the Legislature might reasonably consider that there was least likelihood of harm from night work by them, it has been for a considerable time a settled legislative policy in this state to prohibit women from working in most of the occupations open to them between the hours named in the statute. Nor is the tendency to prohibit such work by women confined to this state. In 1906 the International Association for Labor Legislation adopted a convention which by 1912 had been signed by practically all European states prohibiting night work by women in industry. Hutchins & Harrison, History of Factory Legislation, 271; People v. Charles Schweinler Press, 214 N.Y. 395, 403,108 N.E. 639, L.R.A.1918A, 1124, Ann.Cas.1916D, 1059. At least thirteen of the states in this country other than ours have provisions prohibiting night work by women, although the hours of work permitted and the scope of employments covered vary, and the statutes of none of them are as inclusive as are ours. United States Department of Labor, Bulletin of Women's Bureau, No. 156-II (1938).

Since the decision in Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551,13 Ann.Cas. 957, it is no longer open to question that a Legislature may, generally speaking constitutionally limit the hours of the labor of women. Riley v. Massachusetts, 232 U.S. 671, 679, 34 S.Ct. 469, 58 L.Ed. 788; Miller v. Wilson, 236 U.S. 373, 380, 35 S.Ct. 342, 59 L.Ed. 628, L.R.A.1915F, 829; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 394, 57 S.Ct. 578, 81 L.Ed. 703, 108 A.L.R. 1330. In People v. Williams, 189 N.Y. 131, 81 N.E. 778, 12 L.R.A.N.S., 1130, 121 Am.St.Rep. 854,12 Ann.Cas. 798, it was held that a law forbidding the employment of women in factories before 6 o'clock in the morning or after 9 o'clock at night was unconstitutional as an illegal interference with constitutional rights. However, in People v. Charles Schweinler Press, supra, a similar law, except that the evening hour was fixed at 10 o'clock instead of 9 o'clock, was upheld, the court stating that its conclusion was reached in the light of wider information made available to it as to the effect of night work upon women and the growth of opinion that injurious results were likely to follow. The opinion in that case quotes from the report of a special committee appointed by the New York Legislature to investigate labor in factories, as follows (214 N.Y. at page 403, 108 N.E. at page 640, L.R.A.1918A, 1124, Ann.Cas.1916D, 1059): ‘ The chief danger of health from night work * * * due to the inevitable lack of sleep and sunlight. Recuperation from fatigue takes place fully only in sleep, and best, in sleep at night. Hence, night work is, in a word, against nature. When exhausting factory work fills the night, and household work most of the day, health must inevitably be sacrificed. This injury to health is all the greater, because sleep lost at night by working women is never fully made up by day. For, in the first place, sleep in the daytime is not equal in recuperative power to sleep at night. * * * Moreover, quiet and privacy for sleep by day is almost...