Leep v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 03 February 1894
• Citation: 25 S.W. 75
• Parties: LEEP v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Arkansas Supreme Court

25 S.W. 75

LEEP v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Arkansas.

February 3, 1894.

Appeal from circuit court, Pulaski county; Robert J. Lea, Judge.

Action by S. P. Leep against the St. Louis, Iron Mountain & Southern Railway Company for wages and for a penalty for nonpayment of the same. The action was originally brought in justice's court, where plaintiff had judgment for the full amount of his claim, but on appeal to the circuit court the penalty was not allowed, and he appeals. Reversed.

Marshall & Coffman, for appellant. Dodge & Johnson, for appellee.

BATTLE, J.

The St. Louis, Iron Mountain & 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 30 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 nonpayment 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 employe thereof, the unpaid wages of any such servant or employe, 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 employe 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 employe 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 employe 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."

This act applies to corporations, companies, and persons engaged in the business of operating or constructing railroads or railroad bridges, and to contractors and subcontractors engaged in the construction of any such road or bridge, and requires them to pay their employes, on the day of discharge, or of the refusal to further employ them, the unpaid wages then earned by them at the contract rate, without abatement or deduction. The object of the act is to make it unlawful for such companies, corporations, persons, contractors, or subcontractors to contract to pay the wages of those employed by them in the operating of railroads or in the construction of such roads or bridges at any time subsequent to the day on which the employes may be discharged, or on which such employer may refuse to longer employ them. In other words, it declares the wages shall be paid on such day, notwithstanding they may not be due according to the contract until a day subsequent. In this respect the act attempts to limit the right to contract. Is it constitutional?

The constitutionality of a legislative act is to be determined solely by reference to those limitations which the constitution imposes. No court ought to "declare a statute unconstitutional and void," says Judge Cooley, "solely on the ground of unjust and oppressive provisions, or because it is supposed to violate the natural, social, or political rights of the citizen, unless it can be shown such injustice is prohibited, or such rights are guarantied or protected by the constitution." The judiciary and the legislative are co-ordinate departments of the government; neither of which has a right to invade the province of the other. In determining the validity of a statute the sole question for the courts to decide is one of power, not of expediency justice, or wisdom. In deciding such questions they should, in the spirit of the comity and good will that should prevail between the different departments of the government, resolve all doubts in favor of the constitutionality of the acts of the legislature; and, if any act be reasonably susceptible of two constructions, one of which would render it unconstitutional and the other valid, should give to it the latter, on the presumption that the legislature did not intend to exceed its power. Cooley, Const. Lim. (6th Ed.) pp. 157, 200, 203, 208; Sinking Fund Cases, 99 U. S. 700, 718; Munn v. Illinois, 94 U. S. 113; Powell v. Com., 114 Pa. St. 292, 7 Atl. 913; Railway Co. v. Humes, 115 U. S. 520, 6 Sup. Ct. 110.

According to the foregoing test, is the act under consideration constitutional? Section 3 of article 2 of the constitution of this state declares: "All men are created equally free and independent, and have certain inherent and inalienable rights; amongst which are those of enjoying and defending life and liberty; of acquiring, possessing and protecting property and reputation; and of pursuing their own happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed." Section 8 of the same article ordains that no person shall "be deprived of life, liberty or property, without due process of law." Section 1 of the fourteenth amendment to the constitution of the United States provides: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

The right to acquire and possess property necessarily includes the right to contract, for it is the principal mode of acquisition, and is the only way by which a person can rightly acquire property by his own exertion. Of all the "rights of persons" it is the most essential to human happiness.

But the right to contract is not unlimited. The conflicting interests of individuals make this impossible. Rights in conflict with each other cannot be unlimited. Duties to persons, to society, the public, and the government are imposed on every individual. Every man, when he enters into society, undertakes to perform these duties; and necessarily surrenders some rights or privileges on account of his relation to others. His right to contract becomes subject to these duties, among which is the duty to so conduct himself and use his own property as to not unnecessarily injure another. He submits himself to such restraints and burdens as may conduce to the general comfort, health, and prosperity of the state. To conserve and enforce these rights and duties the government can impose such restrictions upon his actions as may be appropriate for that purpose. "This power inheres in every sovereignty, and is essential to the maintenance of public order, and the preservation of mutual rights from the disturbing conflicts which would arise in the absence of any controlling, regulating authority."

The legislature can control, to some extent, the right to contract in reference to property "clothed with a public interest, when used in a manner to make it of public consequence, and affect the community at large." By devoting his property to a use in which the public has an interest, the owner, in effect, grants to the public an interest in that use, and subjects himself to the control of the legislature for the common good, to the extent of the interest he has thus created. Upon this principle the legislature can fix the maximum of charges for the storage of grain in public warehouses, and for carriage of freight and passengers by common carriers. From the same source comes the power to regulate millers, bakers, hackmen, ferries, wharfingers, innkeepers, and the like, "and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold." Munn v. Illinois, 94 U. S. 113; Budd v. New York, 143 U. S. 517, 12 Sup. Ct. 468; Dow v. Beidelman, 125 U. S. 680, 8 Sup. Ct. 1028; Id., 49 Ark. 325, 5 S. W. 297; Mayor, etc., of Mobile v. Yuille, 3 Ala. 140. Upon the same principle it was held in Waterworks v. Schottler, 110 U. S. 347, 4 Sup. Ct. 48, "that it is within the power of the government to regulate the price at which water shall be sold by one who enjoys a virtual monopoly of the sale."

It has been held by the courts that the legislature can regulate or prohibit the sale or manufacture of oleomargarine for the purpose of protecting the public against fraud. Powell v. Com., 114 Pa. St. 265, 7 Atl. 913; Id., 127 U. S. 678, 8 Sup....