Huntworth v. Tanner

• Decision Date: 06 November 1915
• Docket Number: 12733.
• Citation: 152 P. 523,87 Wash. 670
• Parties: HUNTWORTH v. TANNER, Atty. Gen., et al.
• Court: Washington Supreme Court

152 P. 523

87 Wash. 670

HUNTWORTH v. TANNER, Atty. Gen., et al.

No. 12733.

Supreme Court of Washington, En Banc.

November 6, 1915

Appeal from Superior Court, King County; John R. Mitchell, Judge.

Action by F. H. Huntworth, doing business under the trade-name of the Pacific Teachers' Agency, against W. V. Tanner, as Attorney General of the State of Washington, and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded, with instructions.

Main Fullerton, and Ellis, JJ., dissenting.

Joseph P. Totten, William D. Totten, Frank H. Huntworth, and E. C Macdonald, all of Seattle, for appellant.

W. V Tanner, Atty. Gen., and Lindsay L. Thompson, of Olympia, for respondents.

C. J. France, of Seattle, Cannon & Ferris, of Spokane, and Brightman, Halverstadt & Tennant, of Seattle, amici curiae.

CHADWICK J.

Plaintiff brought this action to restrain a threatened arrest and prosecution for alleged violation of Initiative Measure No. 8, being popularly known as the Employment Agency Law. Prior to the last general election there was initiated a measure entitled:

'An act to prohibit the collection of fees for the securing of employment or furnishing information leading thereto and fixing a penalty for violation thereof.'

Upon the initiation of the measure the Attorney General, as required by law, submitted to the secretary of state a ballot title in form as follows:

'An act to prohibit the collection of remuneration or fees from workers for the securing of employment or furnishing information leading thereto, and providing a penalty for violation thereof.'

This was printed upon each of the ballots, and became, under the statute, a notice of the measure and its provisions to the electors of the state.

At the general election the law was adopted. It is in form as follows:

'Be it enacted by the people of the state of Washington:

'Section 1. The welfare of the state of Washington depends on the welfare of its workers and demands that they be protected from conditions that result in their being liable to imposition and extortion.

'The state of Washington therefore exercising herein its police and sovereign power declares that the system of collecting fees from the workers for furnishing them with employment, or with information leading thereto, results frequently in their becoming the victims of imposition and extortion and is therefore detrimental to the welfare of the state.

'Sec. 2. It shall be unlawful for any employment agent, his representative, or any other person to demand or receive either directly or indirectly from any person seeking employment, or from any person on his or her behalf, any remuneration or fee whatsoever for furnishing him or her with employment or with information leading thereto.

'Sec. 3. For each and every violation of any of the provisions of this act the penalty shall be a fine of not more than one hundred dollars and imprisonment for not more than thirty days.' Laws 1915, p. 1.

It is alleged by plaintiff that for many years he has conducted, by himself and his predecessors in interest, a business known under the trade-name of 'Pacific Teachers' Agency'; that the business is successful and remunerative; that its activities are entirely confined to and that it enjoys the confidence, support, and patronage of school-teachers, and those either engaged or concerned in educational affairs throughout the states of Washington, Idaho, Oregon, Montana, and the territory of Alaska, and elsewhere. The character of the business and the manner in which it is conducted is alleged to be as follows:

'That said school-teachers have dealt and deal with the plaintiff for the purpose of obtaining employment as school-teachers, and use said agency as a medium through and by means of which their qualifications and ability to teach may be inquired into and ascertained by school district officers, and their previous professional records submitted or presented to such officers or to any municipality, school district, or other public body desiring to employ teachers for investigation and as a means to facilitate further investigation of their qualifications by such officers or public bodies before entering into contracts of employment.

'That in the performance of services by plaintiff for teachers so seeking employment, he investigates by written or personal communication their professional records and previous standing in the communities where lately employed, solicits on their behalf and receives reports and confidential information from educational institutions and authorities familiar with their scholarship, professional preparation and attainments, experience, character, and personal characteristics, for the purpose of determining their fitness and availability for employment as school-teachers. That such information so obtained is indexed by plaintiff and kept in a convenient form in suitable record books, and preserved permanently for the use and benefit of such persons, for the inspection of employers of teachers, in carrying on correspondence with teachers and prospective employers, and in making and furnishing copies of such records whenever called upon to do so by such teachers or employers. That for such services plaintiff charges and receives in advance a fee of $2 from each person soliciting his services. That such sum is usually insufficient to defray the actual cost to plaintiff of the services hereinbefore referred to.'

The teacher agrees to pay 5 per cent. of the first year's salary if a situation is obtained.

The business of plaintiff has been conducted under, and is subject to, an ordinance of the city of Seattle entitled:

'An ordinance to license and regulate certain trades and occupations in the city of Seattle, and providing penalties for the violation thereof.'

It is alleged that the defendants, acting in their respective capacities, maintain and contend that plaintiff is guilty of violating the provisions of Initiative Measure No. 8, and that they declare that they will subject him to arrest and prosecution in the courts of the state. Plaintiff contends that his business is a legitimate business; that it has been carried on and operated in an honest and fair manner, and has contributed to the welfare of the people who deal with and through him; that he has at no time been guilty of any impositions or frauds or extortions, but has rendered faithful and efficient service to the entire satisfaction of his patrons. These things being true, he insists that Initiative Measure No. 8 is not, either by its terms or intendments, applicable to his business, and, further, if it be so held, that the act is void in contravention of the Constitution of the state of Washington and of the fifth and fourteenth amendments to the Constitution of the United States, in that it deprives plaintiff of his liberty and property without due process of law; that it denies to him the equal protection of the laws, and abridges his privileges and immunities as a citizen of the United States; that it is discriminating and class legislation; and that it is an attempt to regulate interstate commerce. Plaintiff further alleges that, if arrested and prosecuted for a violation of the act, his business will be irreparably damaged; that he deals only with school-teachers, who are peculiarly punctilious in the observance of all law, and his arrest, if published in the newspapers and educational journals throughout the states in which he does business, will work a loss of confidence in him and his business, and that his present and possible future patrons will refrain from doing business with him, although his business may finally be held by the courts to be a lawful business; that unless his business is carried on without interruption its efficiency and value cannot be maintained; and that to discontinue it would result in total destruction.

These facts come to this court as admitted; the court having sustained a demurrer to the complaint and entered a judgment dismissing plaintiff's action with prejudice.

We are advised by counsel that the court below sustained the demurrer upon the theory that plaintiff's business falls within the prohibitions of Initiative Measure No. 8, and that the act is a valid exercise of the police power of the state. It is our judgment, after mature reflection, that we are not called upon to pass upon the constitutionality of the law. The case may be decided upon other grounds.

Appellant contends that the law does not include one who is conducting an agency patronized only by teachers and those who employ them; that the act by its words and intendments applies only to those who may be classed as 'workers' or workmen, and not to those who are engaged in professional service. He submits several definitions of the words 'worker' and 'workman.'

Worker:

'One who, or that which, works; a laborer; performer; doer; as a worker in brass; worker of iniquity.

'One who, or that which, works; a laborer; a toiler; a performer.

'One who, or that which, performs work; a toiler.'

Workman:

'A man employed in labor, whether in tillage or manufactures; a worker; especially a skilled artificer or laborer.

'A laboring man; one who earns his living by manual labor.

'One who labors; one who is employed to do business for another.'

'Laborer' is defined as 'one who performs physical or manual labor.'

This argument is met by the suggestion that, although the ballot title and section 1 of the act use the word 'workers,' they are to be regarded as a preamble to section 2; the rule being:

'The preamble to a statute can neither expand nor control the scope and application of the enacting clause, when the latter is clear and explicit.' Black on Interpretation of Laws (2d Ed.) § 84.

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