Gasque Inc v. Nates, No. 14839.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtFISHBURNE, Justice
Citation2 S.E. 2d. 36
PartiesGASQUE, Inc., et al. v. NATES, Commissioner of Labor of State of South Carolina et al. SOUTH CAROLINA DYERS & CLEANERS ASS'N et al. v. SAME.
Docket NumberNo. 14839.
Decision Date14 March 1939

2 S.E. 2d. 36

GASQUE, Inc., et al.
v.
NATES, Commissioner of Labor of State of South Carolina et al.
SOUTH CAROLINA DYERS & CLEANERS ASS'N et al.
v.
SAME.

No. 14839.

Supreme Court of South Carolina.

March 14, 1939.


[2 S.E. 2d. 37]

Appeal from Common Pleas Circuit Court of Richland County; G. Duncan Bellinger, Judge.

Suits by Gasque, Inc., and others, representing themselves and all other druggists and drug stores in the state of South Carolina, and the South Carolina Dyers & Cleaners Association, an association composed of practically 75 per cent, of the dyers and cleaners in the state of South Carolina, too numerous to name, and others, against John W. Nates, Commissioner of Labor of the State of South Carolina, representing himself and all other law enforcement officers, to restrain enforcement of certain statutes. From an adverse decree, defendants appeal.

Affirmed.

The decree of Judger Bellinger directed to be reported follows:

The first of the above entitled, actions was instituted in this Court by the service of summons and complaint and rule to show cause dated May 26, 1938. To the rule to show cause was attached a temporary restraining order which is still in force and effect.

The second of the above entitled actions was similarly instituted shortly thereafter.

The defendant in each of these cases has interposed a demurrer. Since similar issues are raised in both cases, they have, for convenience, been heard together.

The facts as alleged in the Gasque case are that the plaintiffs in that case are employers of labor who will be affected by the-provisions of Act No. 1348 of the

[2 S.E. 2d. 38]

Acts of 1938. Although the Act is referred to in the captions and pleadings in the several cases as Act No. 1348, it appears that its official permanent number is Act No. 943. It appears in the bound volume of the 1938 Acts on page 1883 and will be referred to hereinafter simply as Act No. 943.

The plaintiffs in the Gasque case allege that because of the peculiar character of retail drug stores and the necessity for maintaining service to the public, particularly the sale of drugs, medical, surgical and sick room necessities and supplies, it is necessary that drug stores keep open for long periods of time; that the drug stores all keep open seven days a week, most of them operating sixteen hours a day, some twenty-four hours a day, and that it is necessary to be prepared to meet emergency calls requiring delivery boys at all hours; that many of these delivery boys are under the age of eighteen years; that the delivery service must be maintained after 10 o'clock at night; that other mercantile establishments and industries exempted from the provisions of Act No. 943 are in competition with the drug stores; and that the provisions of this Act, preventing minors under the age of eighteen from working after 10 o'clock at night and preventing any person employed by a drug store, other than a prescription clerk, from working more than fifty-six hours per week, or twelve hours in any one day, are unconstitutional as applied to these plaintiffs in the various particulars set out in the complaint, and if the Act is applied to these plaintiffs it will deprive them of State and Federal constitutional rights; will destroy their business and subject them to a multiplicity of criminal prosecutions; that the plaintiffs have existing contracts with their employees under which the employees now work more than fifty-six hours a week and whereby certain employees under eighteen years of age work between 10 P. M. and 6 A. M.

In view of the similarity of the cases, it is unnecessary to state the facts alleged in the second of the above entitled causes.

The defendant has interposed a demurrer to each of the complaints and by so doing, of course, under the established law of this State, has admitted all the facts set out therein, which are well pleaded, but has not, of course, admitted the allegations of unconstitutionality which are allegations of law.

The attacks upon the constitutionality of this Act may be discussed under four heads:

1. Does the Act of the General Assembly providing that no employee of the manufacturing and mercantile establishments enumerated in the Act shall be permitted to work more than fifty-six hours per week, or more than twelve hours in any one day, deprive the plaintiffs of their property without due process of law or deny to them the equal protection of the law in violation of Art. 1, Section 5, of the State Constitution and of the 14th Amendment to the Federal Constitution, U.S.C.A.; does this provision impair the rights of the plaintiffs under the privileges and immunities clause (Art. 4, Section 2) of the Federal Constitution, or does this provision of the Act impair the obligation of existing contracts in violation of Art. 1, Section 8 of the Constitution of South Carolina, and Art. 1, Section 10 of the Federal Constitution?

2. Do the exemptions embraced in the provisos to Section 1 of the Act constitute illegal discrimination amounting to impairment of the plaintiffs' constitutional rights under the provisions enumerated in question 1?

3. Do the Act and its title comply with the provisions of Art. 3, Section 17 of the South Carolina Constitution?

4. Do the provisions of Section 2 of the Act illegally delegate to the Commissioner of Labor certain legislative and judicial functions in violation of the Separation of Powers provisions of the State and Federal Constitutions? *

In approaching the discussion of these constitutional provisions this Court is cognizant of the principles of constitutional law so frequently reiterated by the Supreme Court of the State that every presumption of constitutionality is to be indulged in because of the high respect which the judicial branch of the government holds for its co-ordinate branch, the legislative. Unless, therefore, plaintiffs can clearly convince this Court of the unconstitutionality of the statute involved here, it must be sustained.

As was said by the United States Supreme Court in United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 318, 80 L.Ed. 477, 102 A.L.R. 914: "When an act of Congress [we supply the State Legislature] is appropriately challenged in the courts as not conforming to the constitutional

[2 S.E. 2d. 39]

mandate, the judicial branch of the government has only one duty; to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does, or can do, Is to announce its considered judgment upon the question. The only power it has, if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution; and, having done that, its duty ends."

It has long been recognized that the relationships between employers and employees are protected by the constitutional provisions prohibiting the impairment of contracts, the taking of life, liberty or property without due process and demanding equal protection. Adair v. U. S., 208 U.S. 161, 28 S.Ct. 277, 52 L.Ed. 436, 13 Ann.Cas. 764; Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441, L.R.A.1915C, 960; Chas. Wolff Packing Co. v. Court of Industrial Relations, 267 U.S. 552, 45 S.Ct. 441, ' 69 L.Ed. 785; Prudential Ins. Co. v. Check, 259 U.S. 530, 42 S.Ct. 516, 66 L.Ed. 1044, 27 A.L.R. 27; McLean v. Arkansas, 211 U.S. 539, 29 S.Ct. 206, 53 L.Ed. 315.

In the Adair case, supra, the Court said [208 U.S. 161, 28 S.Ct. 280]: "The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell. * * * In all such particulars the employer and the employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land."

This constitutional guaranty of liberty of contract cannot, of course, be regarded as absolute in the sense that there can be no State regulation of matters as to which persons might desire to contract. There remains the State's police power which permits the Legislature to enact laws for the general good of the citizens of the State even though the incidental effect of regulation thereunder would be to deprive some individual of liberty or property. When this police power is properly exer cised, the deprivation of life, liberty or property is with due process of law. Similar principles apply to the constitutional prohibition against impairment of the obligation of a contract.

To be valid as a legislative exercise of police power, the legislation must be clearly demanded for the public safety, health, peace, morals or general welfare. 11 Amr Juris. 1171; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, 108 A.L.R. 1330; 11 Amr. Juris. 1001.

This brings us to a consideration of the first question raised by the pleadings:

1. Does the Act of the General Assembly providing that no employee of the manufacturing and mercantile establishments enumerated in the Act shall be permitted to work more than fifty-six hours per week, or more than twelve hours in any one day, deprive the plaintiffs of their property without due process of law or deny to them the equal protection of the law in violation of Art. 1, Section 5 of the State Constitution and of the 14th Amendment to the Federal Constitution; does this provision impair the rights of the plaintiffs under the privileges and immunities clause (Art. 4, Section 2) of the Federal Constitution, or does this provision of the Act impair the obligation of existing contracts in violation of Art. 1, Section 8 of the Constitution of...

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24 practice notes
  • Mills Mill v. Hawkins, No. 17312
    • United States
    • United States State Supreme Court of South Carolina
    • June 19, 1957
    ...classification'. As to the requirement of reasonableness in classification under the police power, see also Gasque v. Nates, 191 S.C. 271, 2 S.E.2d 36. Sanders v. Greater Greenville Sewer District, 211 S.C. 141, 44 S.E.2d 185, upheld a special act providing a method whereeby an area lying w......
  • Gwynette v. Myers, No. 17687
    • United States
    • United States State Supreme Court of South Carolina
    • July 26, 1960
    ...be exercised only for the protection of the public in its health, safety, morals or general welfare. Gasque, Inc. v. Nates, 191 S.C. 271, 2 S.E.2d 36. Involved here is no question of public health, safety or morals. The issue, as before stated, concerns only the asserted Page 677 right of t......
  • Peterson v. Hagan, TOP-HAT
    • United States
    • United States State Supreme Court of Washington
    • April 14, 1960
    ...brief, page 9. 3 Lyons & Co. v. Corsi, 3 N.Y.2d 60, 163 N.Y.S.2d 677, 143 N.E.2d 392. Contra, Gasque, Inc. v. Nates, 191 S.C. 271, 2 S.E.2d 36. 4 An argument specifically directed against such provision was rejected in Bunting v. State of Oregon, 243 U.S. 426, 437, 37 S.Ct. 435, 61 L.Ed. 83......
  • Rogers-Kent, Inc. v. General Elec. Co., ROGERS-KEN
    • United States
    • United States State Supreme Court of South Carolina
    • August 26, 1957
    ...reasonably necessary in the interests of the public order, health, safety, morals or general welfare. Casque, Inc. v. Nates, 191 S.C. 271, 2 S.E.2d 36; McCoy v. Town of York, 193 S.C. 390, 8 S.E.2d It is difficult to find any justification for this legislation based upon considerations of t......
  • Request a trial to view additional results
24 cases
  • Mills Mill v. Hawkins, No. 17312
    • United States
    • United States State Supreme Court of South Carolina
    • June 19, 1957
    ...classification'. As to the requirement of reasonableness in classification under the police power, see also Gasque v. Nates, 191 S.C. 271, 2 S.E.2d 36. Sanders v. Greater Greenville Sewer District, 211 S.C. 141, 44 S.E.2d 185, upheld a special act providing a method whereeby an area lying w......
  • Gwynette v. Myers, No. 17687
    • United States
    • United States State Supreme Court of South Carolina
    • July 26, 1960
    ...be exercised only for the protection of the public in its health, safety, morals or general welfare. Gasque, Inc. v. Nates, 191 S.C. 271, 2 S.E.2d 36. Involved here is no question of public health, safety or morals. The issue, as before stated, concerns only the asserted Page 677 right of t......
  • Peterson v. Hagan, TOP-HAT
    • United States
    • United States State Supreme Court of Washington
    • April 14, 1960
    ...brief, page 9. 3 Lyons & Co. v. Corsi, 3 N.Y.2d 60, 163 N.Y.S.2d 677, 143 N.E.2d 392. Contra, Gasque, Inc. v. Nates, 191 S.C. 271, 2 S.E.2d 36. 4 An argument specifically directed against such provision was rejected in Bunting v. State of Oregon, 243 U.S. 426, 437, 37 S.Ct. 435, 61 L.Ed. 83......
  • Rogers-Kent, Inc. v. General Elec. Co., ROGERS-KEN
    • United States
    • United States State Supreme Court of South Carolina
    • August 26, 1957
    ...reasonably necessary in the interests of the public order, health, safety, morals or general welfare. Casque, Inc. v. Nates, 191 S.C. 271, 2 S.E.2d 36; McCoy v. Town of York, 193 S.C. 390, 8 S.E.2d It is difficult to find any justification for this legislation based upon considerations of t......
  • Request a trial to view additional results

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