Low v. Rees Printing Co.

• Citation: 41 Neb. 127,59 N.W. 362
• Parties: LOW v. REES PRINTING CO.
• Decision Date: 06 June 1894
• Court: Nebraska Supreme Court

41 Neb. 127

59 N.W. 362

LOW

v.REES PRINTING CO.

Supreme Court of Nebraska.

June 6, 1894.

Syllabus by the Court.

1. Sections 1 and 3 of chapter 54 of the Session Laws of 1891, having provided, in effect, that for all classes of mechanics, servants, and laborers, excepting those engaged in farm or domestic labor, a day's work should not exceed eight hours, and that, for working any employe over the prescribed time, the employer should pay extra compensation, in increasing, geometrical progression, for the excess over eight hours (the rate of payment for the eighth hour being taken as the basis upon which to reckon such progression), held, that these provisions are unconstitutional--First, because the discrimination against farm and domestic laborers is special legislation; second, because, by the act in question, the constitutional right of parties to contract with reference to compensation for services is denied.

2. It being apparent, from an inspection of the entire act in question, that sections 1 and 3 thereof formed an inducement to its passage, no part of said act can be sustained as constitutional. Trumble v. Trumble, 55 N. W. 869, 37 Neb. 340, followed.

Error to district court, Douglas county; Wakeley, Doane, and Davis, Judges.

Action by Charles G. Low against the Rees Printing Company. Judgment for defendant. Plantiff brings error. Affirmed.Mahoney, Minahan & Smyth, for plaintiff in error.

Ambrose & Duffie, for defendant in error.

RYAN, C.

In the district court of Douglas county, plaintiff in error filed his petition, wherein were stated three causes of action. Of these, the third cannot be reviewed, for the reason that there was no motion for a new trial filed or passed upon, in respect to it. The stipulation waiving the motion for a new trial, and consenting that the action in this court should be treated as if such motion had actually been filed and ruled upon in the district court, ignores the consideration that is due to the trial court, where the motion in question should have been duly passed upon, that whatever errors were presented thereby might be corrected. The consideration of this case, for the reason just indicated, will therefore be confined to the first and second causes of action stated in the petition. After alleging that the defendant was a corporation doing business in the city of Omaha, the averments of plaintiff in his petition were as follows:

“Further complaining, plaintiff states for his first cause of action that on the 10th day of August, 1891, he contracted with the defendant to work for it, as a printer, for thirty cents per hour; that, pursuant to said contract, he entered the employment of said defendant; and that, on said 10th day of August, said defendant worked this plaintiff eleven hours. Said defendant thereby became indebted to this plaintiff in the sum of $6.60; that is to say, $2.40 for the first eight hours worked, sixty cents for the ninth hour worked, one dollar and twenty cents for the tenth hour worked, and two dollars and forty cents for the eleventh hour worked. Of said sum thus due, defendant has paid plaintiff three dollars, and no more.

For a second cause of action, plaintiff states: That on the 8th day of August, 1891, he, at the request of the defendant, entered into a contract with the said defendant, which contract was in the words and figures following, viz.: ‘To all employes of Rees Printing Co.: From and including August 1st, 1891, all employes of this company will be employed and paid by the hour for the number of hours they work, at the same rate of wages now paid, and not by the day. Any employe who is willing to work the same number of hours as heretofore at the rate of wages heretofore paid him will report in writing at once to the undersigned. July 30th, 1891. Rees Printing Co.

‘Receipt of the above rule and regulation is hereby acknowledged. I am willing to continue in the service of the company subject to the same. August 8, 1891. Charles G. Low.’

That the rate of compensation or wages agreed upon between the plaintiff and defendant, and paid to the plaintiff by said defendant, prior to entering into said contract, was $3 per day for each day worked by plaintiff, which day consisted of ten hours. That on said 8th day of August, 1891, the defendant worked this plaintiff ten hours, and thereby became indebted to him in the sum of $4.20; that is to say, $2.40 for the first eight hours, sixty cents for the ninth hour, and one dollar and twenty cents for the tenth hour worked. Of said sum thus due to the plaintiff, defendant has paid $3.00, and no more.”

A demurrer was filed to the above causes of action on the grounds following: “(1) The said petition does not state facts constituting a cause of action against the defendant, nor does any of the counts thereof state facts constituting a cause of action in plaintiff's favor against the defendant. (2) Chapter 54 of the Acts of the 22d Session of the Legislature of Nebraska, under the provisions of which this action was brought, and by virtue of which plaintiff must recover, if at all, is unconstitutional and void, and in contravention of the constitution of Nebraska and of the United States. (a) It seeks to take away and limit the right of the citizen to enter into contracts relating to legal and lawful business; (b) it seeks to abridge the rights of the people in disposing of their lawful property, and the purchase of the same; (c) it is special and class legislation, and an attempt on the part of the legislature to grant special immunities and privileges to certain employes and employers; (d) the statute, while intended to be general in its operation, excepts certain of our citizens from its provisions; (e) it seeks to abridge the privileges of certain of our citizens, and deprive them of their property without due process of law, and denies to certain of our citizens equal protection of the law, and is therefore in conflict with sections 1 and 3 of article 1 of the constitution of Nebraska, and section 1 of the fourteenth amendment of the constitution of the United States. (3) Said act is broader than the title, in so far as it provides for a penalty for violation thereof, and seeks to fix the compensation of the employe; and to that extent the provisions of the act are in conflict with section 11, art. 3, of the constitution of this state. (4) Said act is in conflict with section 5, art. 8, of the constitution of Nebraska, in that it seeks to give to the employe a part of the penalty provided for its violation.”

This demurrer was argued in the aforesaid district court, Judges Wakeley, Doane, and Davis presiding, by whom, upon due consideration, it was sustained, as to said first and second causes of action. Thereupon, the plaintiff electing to stand on said two causes of action, and refusing to further plead, judgment was thereon rendered in favor of the defendant. By petition in error, plaintiff has duly presented for review by this court the same questions passed on in the district court.

Chapter 54, specially described in, and against which the demurrer was directed, is in the following language:

“Be it enacted by the legislature of the state of Nebraska:

Section 1. That eight hours shall constitute a legal day's work for all classes of mechanics, servants and laborers throughout the state of Nebraska, excepting those engaged in farm and domestic labor.

Sec. 2. Any officer or officers, agent or agents of the state of Nebraska, or any municipality therein who shall openly violate or otherwise evade the provisions of this act, shall be deemed guilty of malfeasance in office and be supplanted or removed by the governor or head of the department to which said officer is attached.

Sec. 3. Any employer or corporation working their employes over the time specified in this act shall pay as extra compensation, double the amount per hour as paid for previous hour.

Sec. 4. Any party or parties contracting with the state of Nebraska, or any such corporation or private employer who shall fail to comply with or secretly evade the provisions hereof by exacting or requiring more hours of labor for the compensation agreed to be paid per day than is herein fixed or provided for, shall on conviction thereof be deemed guilty of a misdemeanor and be punished by a fine of not less than one hundred ($100) dollars nor more than one thousand ($1000) dollars.”

The constitutional provisions with which it is claimed the above act is in conflict are: First, the closing sentence of section 15, art. 3, that “in all cases where a general law can be made applicable no special law shall be enacted;” second, the third section of the bill of rights, that “no person shall be deprived of life, liberty or property without due process of law.” It is also urged against the act that it is void as an attempt by the legislature to prevent persons legally competent to enter into contracts from making their own contracts. In the present controversy there is necessarily involved the validity of the entire act; for, although only the first and third sections are directly attacked, yet it is apparent, from an inspection of the act as a whole, that these two sections formed an inducement to its passage. The act must therefore stand or fall as an entirety. Trumble v. Trumble, 37 Neb. 340, 55 N. W. 869.

There seems to have been an oversight as to the first cause of action, for the averments therein were, in substance, that there was a contract of employment at the rate of 30 cents per hour; that the plaintiff was, by the defendant, worked 11 hours, and had received payment to the amount of but $3,--that is, for 10 hours' work at the rate stipulated. On the face of the petition there was therefore unpaid 30 cents upon the first cause of action. This has not been insisted upon in argument, however, and will therefore receive no further attention.

The second cause of action avers that there was a written agreement...