Mullis v. Celanese Corp. of America, 17529

• Decision Date: 01 May 1959
• Docket Number: No. 17529,17529
• Citation: 108 S.E.2d 547,234 S.C. 380
• Court: South Carolina Supreme Court
• Parties: Roy L. MULLIS, J. D. Cudd, Jess Brazzell, Terry Moffitt, et al., Respondents, v. CELANESE CORPORATION OF AMERICA, Celriver Division, Appellant.

Page 547

108 S.E.2d 547

234 S.C. 380

Roy L. MULLIS, J. D. Cudd, Jess Brazzell, Terry Moffitt, et

al., Respondents, v. CELANESE CORPORATION OF AMERICA, Celriver Division, Appellant.

No. 17529.

Supreme Court of South Carolina.

May 1, 1959.

Robert M. Ward, Rock Hill, for appellant.

Edward M. Jackson, Rock Hill, Edens & Hammer, Isadore S. Bernstein, Columbia, for respondent.

LEGGE, Justice.

Plaintiffs, employees of Celanese Corporation of America at its Celriver Plant in York County, South Carolina, suing on behalf of all employees similarly situated, set forth in [234 S.C. 384] paragraphs 3, 4 and 5 of their complaint the basis of their cause of action as follows:

'3. That plaintiffs are being compelled to work on Sunday as a condition of their employment and that this condition is in violation of the public policy and laws of the State of South Carolina as relating to the rights of individuals to refrain from any worldly labor, business or work of their ordinary calling upon the Sabbath Day; that plaintiffs are physically and conscientiously opposed to working on the Sabbath Day but have been reluctant to assert these objections for fear of reprisals which the defendant corporation may take against them.

'4. That the defendant corporation has refused to pay plaintiffs one and one-half their regular daily wage for his work on the Sabbath Day as provided by Section 64-4 of the 1952 Code of Laws for South Carolina; that this payment of one and one-half the regular daily wage is a mandatory condition for the privilege of operating on the Sabbath Day and is imposed on all textile manufacturing, finishing, dyeing, printing or processing plants operating on the Sabbath Day, although the work may be of an absolute necessity or emergency which would exempt them from the penal laws of the State for that occasion.

'5. That the defendant textile corporation began operating in York County, South Carolina, during 1948 and has never complied with the laws of South Carolina in regards to work on the Sabbath Day, nor has it made any effort to pay one and one-half the daily wage to the plaintiffs for this work as required by the laws of South Carolina.'

The complaint prayed, inter alia:

'1. That defendant be compelled to refrain from demanding work on the Sabbath Day as a condition of plaintiffs' employment;' and '2. That plaintiffs have judgment against the defendant for back wages for the work performed on the Sabbath Day in the sum of one-half their regular daily wage for the six (6) years immediately preceding the bringing of this action as provided by law.'

In its answer the defendant alleged: that its Celriver Plant is a manufacturing establishment engaged in the production of cellulose acetate flake and cellulose acetate yarns and fibers, involving chemical processes requiring continuous and uninterrupted operation for a normal production schedule; that because of the nature of its processes it has, throughout the years complained of, operated its said plant twenty-four hours per day seven days per week, as permitted by Section 64-6 of the Code; and that Section 64-4 is not applicable to its operation.

Plaintiff replied:

(a) Admitting that the defendant's Celriver Plant is a manufacturing establishment engaged in the production of cellulose acetate flake and cellulose acetate yarns and fibers; and alleging that such manufacture places said plant in the category of a textile manufacturing and processing plant within the purview of Sections 64-2 through 64-5;

(b) Denying that Section 64-6 exempts said plant from the operation of Section 64-4; and alleging that Section 64-6 does not purport to apply to any type of textile plant but in fact applies only to chemical manufacturing establishments; and

(c) Alleging that Section 64-6 violates the prohibition against special legislation contained in Subsection IX of Section 34 of Article III of the State Constitution and also violates the equal protection clauses of both State and Federal Constitutions, Const. art. 1, § 5; Const.U.S. Amend. 14.

Defendant thereupon moved for judgment on the pleadings; and it now appeals from the order of the circuit court overruling that motion. Respondents have moved to dismiss the appeal upon the ground that the order in question is not appealable.

The circuit judge based his denial of appellant's motion upon his conclusion that the record before him raised issues of fact. Appealability of his order depends upon the correctness of such conclusion. The motion for judgment was in the nature of a demurrer. Page v. North Carolina Mutual Life Ins. Co., 207 S.C. 277, 35 S.E.2d 716; if the pleadings raised issues of law only, refusal of the motion was an order involving the merits within the scope of Section 15-123(1) of the Code and therefore appealable forthwith. Elliott v. Pollitzer, 24 S.C. 81; McCown v. McSween, 29 S.C. 130, 7 S.E. 45; Woods v. Rock Hill Fertilizer Co., 102 S.C. 442, 86 S.E. 817, Am.Cas.1917D, 1149. Cf. Johnson v. Abney Mills, 219 S.C. 231, 64 S.E.2d 641.

Careful consideration of the pleadings leads us to the conclusion that they present but two issues, neither of which is factual, towit:

(1) Is Section 64-6 applicable to appellant's Celriver Plant?

(2) Is Section 64-6 constitutional?

A further issues, also legal, is suggested by respondents as an additional ground for sustaining the order appealed from, viz.: that Section 64-6 was repealed by the Act of March 24, 1954 (XLVIII Stat. at L. 1717).

Section 64-2 is, without substantial change, an Act of the Lords Propretors ratified December 11, 1691 (II Stat. at L. 68). It forbids every 'tradesman, artificer, workman, laborer or other person whatsoever' from doing 'any worldly labor, business, or work of his ordinary calling upon Sunday or any part thereof, work of necessity or charity only excepted', under penalty, for each violation by a person aged fifteen years or more, of forfeiture of one dollar.

Section 64-3 is the codification, without amendment, of the Act of March 6, 1899 (XXIII Stat. at L. 100). It declares it a misdemeanor to order, require or direct any work to be done in any machine shop on Sunday except in cases of emergency.

Section 64-4 codifies the Act of May 14, 1937 (XL Stat. at L. 528), as amended by the Act of May 20, 1939 (XLI Stat. at L. 313). It declares it unlawful 'for any person owning, controlling or operating any textile manufacturing, finishing, dyeing, printing or processing plant to request, require or permit any regular employee to do, exercise or perform any of the usual or ordinary worldly labor or work in, of, about or connected with such employee's regular occupation or calling or any part thereof in or about such textile manufacturing, finishing, dyeing, printing or processing plant on Sunday, work of absolute necessity or emergency alone excepted and then only upon condition that such employees be paid on the basis of one and one-half the amount of the usual average day wage or salary earned by such employee during other days of the week.' It provides (in accordance with the 1939 amendment) that it shall not be construed to apply to certain maintenance and custodial employees.

The Act of April 24, 1953 (XLVIII Stat. at L. 241) amended Section 64-4 by providing for Sunday operation, under permit from the Commissioner of Labor in times of national emergency, of textile manufacturing, finishing, dyeing, printing or processing plants engaged in producing or processing goods for national defense purposes under government contract. Code 1952, § 64-4.1. By the Act of March 24, 1954 (XLVIII Stat. at L. 1717) Section 64-4 was further amended so as to exempt from its prohibition of Sunday work not only 'work of absolute necessity or emergency', but also 'voluntary work in certain departments which is essential to offset or eliminate a processing bottleneck or to restore a balance in processing operations and maintain a normal production schedule.' This amendment also defined a 'regular employee' as one who ordinarily worked as much as eight (instead of twenty) hours per week.

Section 64-5 codifies the Act of April 4, 1934 (XXXVIII Stat. at L. 1454) as amended by the Act of May 30, 1936 (XXXIX Stat. at L. 1615). It prohibits employment of women or children to work on Sunday in mercantile or manufacturing establishments. (The 1934 Act devolved its enforcement upon the Commissioner of Agriculture, Commerce and Industries; the 1936 Act, which created a Department of Labor, appears to have been construed, in the 1952 codification, as transferring that duty to the Commissioner of Labor).

Section 64-6, which codifies the Act of May 18, 1950 (XLVI Stat. at L. 2260), reads as follows:

'The provisions of §§ 64-2 to 64-5 shall not apply to manufacturing establishments or employees thereof when such establishments in the nature of their business involve chemical manufacturing processes requiring, of necessity, for a normal production schedule continuous and uninterrupted operation. In such industries a work week in excess of forty hours and a work day in excess of eight hours shall not be permissible except when the provisions of the Fair Labor Standards Act are complied with. The exemption herein provided shall not apply to or affect cotton, woolen or worsted manufacturing, finishing, dyeing, printing or processing plants and such plants and industries shall be controlled by § 64-4.'

Respondents' cause of action is founded on Section 64-4; it must fall if appellant's operation is within the exemption contemplated by Section 64-6. In this connection we note that the complaint does not suggest that there has been any change in the nature or method of appellant's operation since 1948. We note also that in their reply respondents admit that appellant's plant is as alleged in its answer, a manufacturing establishment engaged in the production of cellulose acetate flake and cellulose acetate yarns and fibers, charging, however,...