General Const. Co. v. Connally

• Decision Date: 24 November 1924
• Docket Number: No. 678.,678.
• Court: U.S. District Court — Western District of Oklahoma
• Parties: GENERAL CONST. CO. v. CONNALLY, Com'r of Labor of Oklahoma et al.

3 F.2d 666 (1924)

GENERAL CONST. CO. v. CONNALLY, Com'r of Labor of Oklahoma et al.

No. 678.

District Court, W. D. Oklahoma.

November 24, 1924.

Charles E. McPherren and Irvin L. Wilson, both of Oklahoma City, Okl., and Kittie C. Sturdevant, of Shawnee, Okl., for plaintiff.

George F. Short, Atty. Gen., and C. W. King and Baxter Taylor, Asst. Attys. Gen., all of Oklahoma City, for defendants.

Before KENYON, Circuit Judge, and DAVIS and KENNAMER, District Judges.

KENNAMER, District Judge.

This case involves the validity, under the Constitution of the United States, of certain portions of the statutes of Oklahoma, being that portion of section 7255 of the Compiled Oklahoma Statutes of 1921, providing:

"* * * Further, that not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers, workmen, mechanics, prison guards, janitors in public institutions, or other persons so employed by or on behalf of the state, or any county, city, township, or other municipality, and laborers, workmen, mechanics, or other persons employed by contractors or subcontractors in the execution of any contract or contracts with the state, or with any county, city, township, or other municipality thereof, shall be deemed to be employed by or on behalf of the state, or of such county, city, township, or other municipality,"

— and section 7257 of the Compiled Oklahoma Statutes of 1921, as follows:

"Any officer of the state, or of any county, city, township, or other municipality, or any person acting under or for such officer, or any contractor with the state, or any county, city, township, or other municipality thereof, or other persons violating any of the provisions of the two preceding sections, shall for each offense be fined in any sum not less than fifty dollars, nor more than five hundred dollars, or punished by imprisonment of not less than three months nor more than six months. Each day such violation continues shall constitute a separate offense."

I am of opinion that a statute providing "that not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers," etc., "employed by or on behalf of the state or any subdivision thereof," together with the section providing punishment by fine and imprisonment for a violation, contravenes the Fourteenth Amendment to the Constitution of the United States, in that it deprives the complainant of his liberty and property without due process of law. It is obvious that the statutes requiring the payment of current wages and providing penalties for the violation thereof are so vague and indefinite as to render it impossible for any person to know or to be able to determine in advance for what acts he may be arbitrarily required to answer for a criminal prosecution. The statutes involved, in effect, delegate to the labor commissioner of the state of Oklahoma the arbitrary power to determine what acts of a contractor working under a contract with the state or municipality he conceives to be a violation of the statute justifying a criminal prosecution. The statute wholly fails to provide an ascertainable standard by which a contractor may determine in advance what is the current wage in any given locality.

There is a clear distinction between an indefinite civil statute and an indefinite criminal statute. This distinction has been recognized by the Supreme Court of the United States. In Edgar A. Levy Leasing Co. v. Siegel, 258 U. S. 242, 42 S. Ct. 289, 66 L. Ed. 595, an indefinite state statute was upheld, it being civil; while in International Harvester Co. of America v. Commonwealth of Kentucky, 234 U. S. 216, 34 S. Ct. 853, 58 L. Ed. 1284, a penal or criminal statute of Kentucky was held unconstitutional because of its indefiniteness. The basis for this distinction is evident. It is of a more serious matter to deprive a man of his liberty on a prosecution based upon a vague and indefinite statute than to deprive him of a property right alone. The deprival of one's personal liberty constitutes sufficient justification for such a distinction. Common justice demands that, before a person may be deprived of his liberty by means of a criminal prosecution, he must have been able to comprehend and to know in advance that, if he commits certain acts, such acts will violate the provisions of a penal statute, plain and definite in its statements.

The authorities support the rule that a statute creating an offense must use language which will convey to the average mind information as to the act or fact which it is intended to make criminal. United States v. Brewer, 139 U. S. 278, 11 S. Ct. 538, 35 L. Ed. 190. In the case of Oklahoma Operating Co. v. Love et al., Composing the Corporation Commission of Oklahoma, 252 U. S. 331, 40 S. Ct. 338, 64 L. Ed. 596, the Supreme Court of the United States, in an opinion rendered by Mr. Justice Brandeis, held that the order of the Corporation Commission, limiting the rates of the Oklahoma Operating Company, engaged in the laundry business, and the attempted enforcement of said order by fine and imprisonment, and making each day's refusal to obey said order a separate offense, was violative of the Fourteenth Amendment to the Constitution of the United States. It was held in this case that the only judicial review of an order fixing rates possible under the laws of a state was that arising in proceedings to punish for contempt.

The reasoning in this case is particularly applicable to the case at bar. Mr. Justice Brandeis pointed out that by "boldly violating an order a party against whom it was directed may provoke a complaint; and if the complaint results in a citation to show cause why he should not be punished for contempt, he may justify before the Commission by showing that the order violated was invalid, unjust or unreasonable. If he fails to satisfy the commission that it erred in this respect, a judicial review is opened to him by way of appeal on the whole record to the Supreme Court. But the penalties which may possibly be imposed if he pursues this course without success are such as might well deter even the boldest and most confident."

In the instant case a person desiring to contract for labor may in the best of faith and with the purest of motives endeavor in his own mind to determine what constitutes the current wage of a community, and bid upon a contract for public improvements, and subsequently discover for the first time, through the whimsical notion or arbitrary power exercised under the statute by the labor commissioner, that all of his acts are by such commissioner determined (who in actual effect has exercised legislative power) and denounced as a crime. It is for the protection of...