Leep v. Railway Co.

• Decision Date: 03 February 1894
• Citation: 25 S.W. 75,58 Ark. 407
• Parties: LEEP v. RAILWAY COMPANY
• Court: Arkansas Supreme Court

25 S.W. 75

58 Ark. 407

LEEP v. RAILWAY COMPANY

Supreme Court of Arkansas

February 3, 1894

Appeal from Pulaski Circuit Court, ROBERT J. LEA, Judge.

Judgment reversed.

Marshall & Coffman for appellant.

The act of March 25, 1889, is not unconstitutional. If it is a legitimate exercise of the police power, there is nothing in the Constitution of the United States, or any of its amendments, to interfere. 123 U.S. 623; 140 ib. 545. Nor is there in the State constitution, for no State or people can part with this power by contract or otherwise. 18 A. & E Enc. Law, 745-6; 101 U.S. 814. This power extends to the prohibition of all things hurtful to society, so reasonably exercised as not to invade constitutional rights, as defined by the courts. 10 L. R. A. 135 and note; 18 A. & E. Enc. L 740; 3 ib. 689; 67 Ill. 37; 70 id. 192; Tied. Lim. Police Power, secs. 1, 2, 3. Railroads, engaged in business affecting the public interest, are subject to police regulations as to charges and many other things. The test is whether the act is designed and does tend to protect some public or private right from some injurious act. Tied. Lira. Pol. Power, 561, 590, 594-9;63 Me. 269; 27 Vt. 140; 94 U.S 113; Ib. 155; 143 U. S. (Budd v. People); 120 Mass. 283. The relation of employer and employee, when connected with a public interest, safety and welfare, are the subject of police regulation. Tied. Lim. of Police Powers, sec. 179. The legislative opinion that police regulation in this regard is necessary is final. The responsibility is purely political, no appeal lying except to the people at the polls. 123 U.S. 623; 127 id. 678; 18 A. & E. Enc. Law, 746-7. The act was passed to correct an evil--the discharge of employees without warning. The efficiency of the public service depends upon prompt payment and proper employment and discharge of employees. It does not attempt to fix the wages of laborers, or control the right to contract, but to render the discharge ineffectual until his wages are paid, nor does it injure the company. If the business of constructing railroads and bridges is not affected with a public interest, that part of the act may be stricken out, and the rest allowed to stand. 37 Ark. 356 and subsequent cases. It may be held to extend to corporations only which are the subject of legislative control. Our constitution gives the power "to correct abuses, prevent discriminations and unjust charges," etc., and to "alter, revoke or annul any charter * * whenever in their opinion it may be injurious to citizens," so that no injustice be done to corporators. This gives the legislature power to recall every right, privilege or immunity derived directly from the State. 99 U.S. 700; 95 id. 319; 8 A. & E. Enc. Law, 628. The only limit is that property or rights which have become vested cannot be taken away. Ib. 629, 633; 111 N.Y. 46, and cases supra; 15 Wall. 459. Corporations have no inherent right to make contracts, and the act does not invade the right of the laborer. It does not impair any obligation. It is prospective in its operation. 121 U.S. 388. See the following cases illustrative of the principle contended for. 6 A. 354; 10 S.E. 285; 9 West. Jur. 347; 16 Wall. 678; 19 A. & E. Enc. Law, 780-5; 8 ib. 628-9; 7 N.E. 631; 110 Ill. 590; 23 N.E. 253; 55 Md. 79; 2 Q. B. 281; 20 S.W. 332; 22 S.W. 350; 31 N.E. 395; 32 id. 364; 25 A. 246; 32 N.E. 978; 19 S.W. 910. The act does not deny defendant its day in court, or take its property without due process of law. 115 U.S. 512; 129 id. 26; Cooley, Const. Lim. 353-8; 96 U.S. 97. The freight act was sustained in 49 Ark. 291, and the passenger rate act in 49 id. 455. The stock law in 49 Ark. 492 stands on different grounds. See Baty v. Railway, 6 Neb. The act is not special, unequal or class legislation within the fourteenth amendment, or any provision of our State constitution. It treats all alike, under similar circumstances and conditions. 35 Ark. 69; 49 id. 167, 291, 455; 48 id. 371; 52 id. 529; 33 id. 816; 15 id. 16; Cooley, Const. L. 390-3; 3 A. & E. Enc. L. 595-8; 8 ib. 623, note 1; 101 U.S. 22; 113 id. 27, 703; 115 id. 321, 512; 127 id. 205; 114 id. 606; 40 Minn. 117.

Dodge & Johnson for appellee.

The act of March 25, 1889, is unconstitutional and void.

1. It is violarive of the bill of rights. Const. art. 2. secs. 3, 21; art. 19, sec. 13. The right to make contracts is inalienable. Three classes of citizens are singled out, and a special law enacted for them alone. Such legislation is discountenanced in 49 Ark. 493. See also 65 Ala. 199.

2. The act violates sec. 7, art. 2, and sec. 13, ib. const. It destroys the right of trial by jury. 28 Ark. 461; 8 id. 446; 16 id. 384.

3. It violates art. 2, secs. 3, 18 and 29, const. It is class legislation of the boldest and baldest character--an unjust discrimination in favor of a certain class of employees against a certain class of employers. 6 Neb. 37; 60 Miss. 641; 20 A. & E. R. Cases, 555.

4. The act is special legislation, and violative of secs. 25 and 26, art. 5, const. 38 N.W. 660; Ib. 201; Cooley, Const. Lim. marg. p. 391; 100 U.S. 303; 89 Ill. 60; 3 Mo. 326; 4 id. 140; 11 Mass. 396; 5 Pick. 65; 3 Humph. 433; 2 Yerg. 260; 20 Cal. 135; 21 Wis. 492; 25 id. 560; 4 Heisk. 357; 2 Yerg. 554; 24 Am. Dec. 511.

5. It violates sec. 1, 14th amend. Const. U.S.; 101 U.S. 30; 5 Cr. 61; 20 Wall. 455; 3 Biss. 481; 2 Gall. 135; 37 Barb. 455; 19 Cal. 246; 67 id. 594; 4 Otto, 544; 3 Sawyer, 157; 100 U.S. 318; Ib. 339-46; 48 Cal. 50; 5 id. 74; 100 U.S. 345; 74 N.Y. 191; 17 Alb. L. J. 225; 4 Wheat. 519; 12 N.Y. 209; Cooley, Const. Lim. p. 355; 4 Conn. 209.

6. It is a special and not a general act, and is violative of Federal and State constitutional prohibitions. 6 A. 354; 127 Ill. 294; 7 N.H. 631; 4 P. 801; 55 Cal. 555; 6 Neb. 37; 8 Rep. 195; 28 Grat. 840; 57 Cal. 604; 6 Am. Law Reg. (N. S.) 378; 6 Law Rep. 359; 113 Pa.St. 431; 4 Cent. Rep. 887; 33 W.Va. 179; 115 Pa.St. 131; 117 Ill. 294.

7. It is an act of paternalism, contrary to our form of government, and violative of the spirit and intention of our organic law. 19 S.W. 910; 143 U.S. 551; 33 Cent. L. J. 237; 26 P. 824; 119 Ill. 294; 34 Cent. L. J. 78; 90 N.Y. 52. The act is class legislation, and an unjust interference with the rights, privileges and property both of employer and employee, and places upon both the badge of slavery, by denying to one the right to manage his own business, and assuming that the other has so little capacity and manhood as to be unable to protect himself and manage his own private affairs. Every one has a right to adopt and follow any lawful pursuit not injurious to the community. He has the right to labor, and employ labor, and make contracts in respect thereto; to enforce all lawful contracts; to sue and give evidence; and to own, purchase and sell property. The deprivation of these rights is slavery and oppression.

BATTLE, J. BUNN, C. J., dissenting.

OPINION

BATTLE, J.

The St. Louis, Iron Mountain and Southern Railway Company is a corporation duly organized according to the laws of Arkansas, and is engaged in operating a railroad in this State. S. P. Leep was employed to work for it at the rate of $ 35 per month of thirty days, and labored under his contract until the 9th of September, 1890, when he was discharged. On the same day he demanded of the company his unpaid wages that were then due, amounting at the contract rate to the sum of $ 27.90. The company failed to pay then, but promised that it would on the 18th of September, 1890. Leep refused to wait until the day of the promised payment, and brought suit before a justice of the peace for the amount due to him, the $ 27.90, and also for a penalty for the non-payment of the same on the day he was discharged, at the contract rate from the time of such discharge to the day of bringing the suit. He recovered a judgment for $ 36.61 and costs. The defendant then appealed to the Pulaski circuit court. He recovered judgment in that court against the defendant for $ 27.90 and costs, but no penalty or damages; and, failing to recover the penalty, he appealed to this court.

He bases his claim to a penalty or damages upon the act of the general assembly, which is in the following words:

"SECTION 1. Whenever any railroad company or any company, corporation or person engaged in the business of operating or constructing any railroad or railroad bridge, or any contractor or sub-contractor engaged in the construction of any such road or bridge, shall discharge, with or without cause, or refuse to further employ any servant or employee thereof, the unpaid wages of any such servant or employee, then earned at the contract rate, without abatement or deduction, shall be, and become due and payable on the day of such discharge, or refusal to longer employ; and if the same be not paid on such day, then, as a penalty for such non-payment, the wages of such servant or employee shall continue at the same rate until paid. Provided, Such wages shall not continue more than sixty days, unless an action therefor shall be commenced within that time.

"SEC. 2. That no such servant or employee who secretes or absents himself to avoid payment to him, or refuses to receive the same when fully tendered, shall be entitled to any benefit under this act for such time as he so avoids payment.

"SEC. 3. That any such servant or employee whose employment is for a definite period of time, and who is discharged without cause before the expiration of such time, may, in addition to the penalties prescribed by this act, have an action against any such employer for any damages he may have sustained by reason of such wrongful discharge, and such action may be joined with an action for unpaid wages and penalty." (Acts, 1889, ch. 61.)

This act applies to...