Low v. Rees Printing Company

• Decision Date: 06 June 1894
• Docket Number: 5390
• Citation: 59 N.W. 362,41 Neb. 127
• Parties: CHARLES G. LOW v. REES PRINTING COMPANY
• Court: Nebraska Supreme Court

59 N.W. 362

41 Neb. 127

CHARLES G. LOW v. REES PRINTING COMPANY

No. 5390

Supreme Court of Nebraska

June 6, 1894

ERROR from the district court of Douglas county. Tried below before WAKELEY, DOANE, and DAVIS, JJ.

AFFIRMED.

Mahoney Minahan & Smyth, for plaintiff in error:

Chapter 54, Laws of 1891, an act to regulate the hours of labor of mechanics, servants, and laborers, does not offend against the last sentence of section 15, article 3, of the constitution, which is as follows: "In all cases where a general law can be made applicable, no special law shall be enacted." (Hingle v. State, 24 Ind. 34; Heridia v. Ayres, 12 Pick. [Mass.], 344; McAunick v. Mississippi & M. R. Co., 20 Iowa 338; State v. Graham, 16 Neb. 76; Cooley, Constitutional Limitations, 129; Haskell v. City of Burlington, 30 Iowa 237; State of Louisiana v. Schlemmer, 10 L. R A. [La.], 135; Barbier v. Connolly, 113 U.S. 27; Minneapolis & St. L. R. Co. v. Beckwith, 129 U.S 26; Hancock v. Yaden, 6 L. R. A. [Ind.], 576; Vermont Loan & Trust Co. v. Whithed, 49 N.W. [N. Dak.], 318; Smith v. Judge of Twelfth District, 17 Cal. 547.)

Suppose the law is a special one. The constitution does not prohibit, under all circumstances, the enacting of special laws. It prohibits it only where a general law can be made applicable. Could a general law have been made applicable? If this be a special law, the legislature by passing it has answered the question in the negative. Is that answer reviewable by this court, or is it final? The authorities say it is final. (City of Wichita v. Burleigh, 36 Kan. 34; Gentile v. State, 29 Ind. 412; State v. Hitchcock, 1 Kan., 184; Beach v. Leahy, 11 Kan. 27; Marks v. Trustees of Purdue University, 37 Ind. 155; State v. Tucker, 46 Ind. 355; State v. County Court, 50 Mo. 317; State v. County Court, 51 Mo. 82; Richmond v. Board of Supervisors, 42 N.W. [Ia.], 422.)

The act is not violative of that provision of the constitution which declares that no person shall be deprived of his liberty or property without due process of law. (Cooley, Constitutional Law, 430; Murray v. Hoboken Land & Improvement Co., 18 HOW [U. S.], 277; In re Brosnahan, 18 F. 66; Rowan v. State, 30 Wis. 146; Ex parte Ah Fook, 49 Cal. 406; Weimer v. Bunbury, 30 Mich. 210; Brown v. Board of Levee Commissioners, 50 Miss. 479; Wurts v. Hoagland, 114 U.S. 606; Kennard v. Morgan, 92 U.S. 480; McMillen v. Anderson, 95 U.S. 37; Davidson v. New Orleans, 96 U.S. 105; Dent v. State of West Virginia, 28 Cent. L. J. [W. Va.], 264; Hawthorn v. People, 109 Ill. 302; Kansas P. R. Co. v. Mower, 16 Kan. 576; Tiedeman, Limitations of Police Power, sec. 178; Powell v. Commonwealth, 114 Pa St., 265, 127 U.S. 678; State v. Moore, 10 S.E. [N. Car.], 144; Alexander v. Archer, 24 P. [Nev.], 374; Mohle v. Tschirch, 63 Cal. 382; Mugler v. Kansas, 123 U.S. 623; Singer v. Maryland, 8 L. R. A. [Md.], 551; Territory of Washington v. Ah Lim, 9 L. R. A. [Wash.], 395; State v. Addington, 77 Mo. 110; Butler v. Chambers, 36 Minn. 69; State v. Marshall, 64 N. H., 549; Messenger v. State, 25 Neb. 676; Donnell v. State, 48 Miss. 661; Munn v. Illinois, 94 U.S. 113; Nash v. Page, 80 Ky. 539; Munn v. People, 69 Ill. 80; Hockett v. State, 105 Ind. 250; Davis v. State, 68 Ala. 58; People v. Budd, 117 N.Y. 1.)

The law is not unconstitutional as limiting the power of the citizen to contract concerning a certain subject. (Ogborn v. Hoffman, 52 Ind. 439; Smith v. Tyler, 51 Ind. 512; Markel v. Spitler, 28 Ind. 488; Maloney v. Newton, 85 Ind. 565; Kneettle v. Newcomb, 22 N.Y. 249; Curtis v. O'Brien, 20 Iowa 376; Moxley v. Ragan, 10 Bush [Ky.], 156; McLane v. Elmer, 4 Ind. 239; Develin v. Wood, 2 Ind. 102; Bauer v. Samson Lodge, 102 Ind. 262; Dugan v. Thomas, 79 Me. 221; German-American Ins. Co. v. Etherton, 25 Neb. 508; Home Ins. Co. v. Morse, 20 Wall. [U. S.], 455; Doyle v. Continental Ins. Co., 94 U.S. 535; Taylor v. Saurman, 110 Pa. St., 3; Herdic v. Roessler, 109 N.Y. 127; New v. Walker, 108 Ind. 365; United States v. Fisher, 2 Cranch [U. S.], 358; Warren v. Sohn, 112 Ind. 213; Churchman v. Martin, 54 Ind. 380; Long v. Straus, 107 Ind. 94; Hudson Canal Co. v. Pennsylvania Coal Co., 75 U.S. 276.)

Ambrose & Duffie, contra, insisting that the statute should be held to be in conflict with constitutional principles as an attempt to legislate in favor of a particular class, and to abridge the guarantied rights of citizens, cited: Deppe v. Chicago, R. I. & P. R. Co., 36 Iowa 52; Foxworthy v. City of Hastings, 23 Neb. 772; Wally v. Kennedy, 2 Yerg. [Tenn.], 554; Durham v. Lewiston, 4 Greenl. [Me.], 140; Lewis v. Webb, 3 Greenl. [Me.], 326; Holden v. James, 11 Mass. 396; Picquet, Appellant, 5 Pick. [Mass.], 64; Budd v. State, 3 Humph. [Tenn.], 483; Godcharles v. Wigeman, 113 Pa. St., 431; Durkee v. City of Janesville, 28 Wis. 464; Calder v. Bull, 3 Dal. [U. S.], 387*; Fletcher v. Peck, 6 Cranch [U. S.], 143; Bank of the State v. Cooper, 2 Yerg. [Tenn.], 599; Atchison & N. R. Co. v. Baty, 6 Neb. 37; People v. Gillson, 109 N.Y. 389; Butchers' Union Slaughter House & Live Stock Landing Co. v. Crescent City Live Stock Landing & Slaughter House Co., 111 U.S. 747; In re Jacobs, 98 N.Y. 98; People v. Millett, 117 Ill. 291; State v. Goodwill, 6 L. R. A. [W. Va.], 621, and cases cited in notes.

OPINION

The opinion contains a statement of the case.

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 after a trial upon evidence adduced. 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, 60 cents for the ninth hour worked, $ 1.20 for the tenth hour worked, and $ 2.40 for the eleventh hour worked. Of said sum thus due, defendant has paid plaintiff $ 3, 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 1, 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, 60 cents for the ninth hour, and $ 1.20 for the tenth hour worked. Of said sum thus due to the plaintiff defendant has paid $ 3, and no more."

A demurrer was filed to the above two 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 twenty-second 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 upon certain employes and employers.

"(d.) The statute, while intending 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,...