Olson v. Heisen

• Decision Date: 19 November 1918
• Citation: 90 Or. 176,175 P. 859
• Parties: OLSON v. HEISEN.
• Court: Oregon Supreme Court

175 P. 859

90 Or. 176

OLSON v. HEISEN.

Supreme Court of Oregon

November 19, 1918

In Banc.

Appeal from Circuit Court, Crook County; T. E. J. Duffy, Judge.

Action by O. H. Olson against Chas. C. Heisen. Judgment for plaintiff, and defendant appeals. Judgment modified.

Lake M Bechtell, of Prineville, for appellant.

Jay H Upton, of Prineville, for respondent.

HARRIS J.

The only question for decision is whether chapter 163, Laws 1907 authorized the trial court to allow an attorney's fee in the instant action. The complaint alleges that the plaintiff performed work and labor for the defendant and that the sum of $300 is due; that the defendant discharged the plaintiff, and that thereupon the plaintiff demanded payment of the wages due him, but that the defendant has refused to pay the sum due, although a period of more than 48 hours has elapsed. The answer consisted of a general denial. The jury returned a verdict for $300. Upon entering the judgment on the verdict the court included in such judgment an allowance of $75 as a reasonable attorney's fee.

Chapter 163, Laws 1907, consists of three sections, and is codified in Lord's Oregon Laws as sections 5066 to 5068 inclusive. The act is entitled thus:

"An act to prohibit the issuance of nonnegotiable acknowledgments of indebtedness in payment for wages due employés, providing how acknowledgments of such indebtedness shall be paid, fixing the time when certain wages shall become due, and providing for the collection of reasonable attorney's fees in actions to recover wages."

Section 1, in substance, prohibits an employer from issuing any order, check, or other acknowledgment of indebtedness on account of wages, unless the paper is made negotiable.

Section 2 provides that, whenever an employer discharges an employé, all wages earned and unpaid at the time of such discharge shall become due and payable immediately, and also whenever an employé, not having a contract for a definite period, sees fit to quit his employment, all wages earned and unpaid become due and payable at the time of such quitting, if the employé has given three days' notice of his intention to quit.

Section 3 reads as follows:

"In any action for the collection of any such order, check, memorandum, or other acknowledgment of indebtedness, or in any action by an employé against an employer for the collection of wages, if it is shown that such order, check, memorandum, or other acknowledgment of indebtedness, or said wages were not paid for a period of forty-eight hours after proper demand for the payment thereof, the court may, in its discretion, upon entering judgment for the plaintiff, include in such judgment, in addition to the costs and disbursements otherwise prescribed by statute, a reasonable sum for attorney's fees for prosecuting said action: Provided, such employé shall have given not less than three days' notice of his intention to quit his employment."

When we speak of the purview of a statute, we mean the enacting part or body of the act, as distinguished from other parts of it, such as the preamble, the title, saving clauses, and provisos. The San Pedro, 2 Wheat. 132, 4 L.Ed. 202; 1 Lewis' Sutherland on Statutory Construction (2d Ed.) p. 460. In 36 Cyc. 1161, a proviso is said to be:

"A clause ingrafted on a preceding enactment for the purpose of restraining or modifying the enacting clause, or of excepting something from its operation which otherwise would have been within it, or of excluding some possible ground of misinterpretation of it, as by extending it to cases not intended by the Legislature to be brought within its purview."

The appropriate function of a proviso is to restrain or modify the purview of the statute in which the proviso is found. 36 Cyc. 1162; 26 American and English Enc. Law (2d Ed.) 678; State v. Young, 74 Or. 399, 406, 145 P. 647. The statute now under discussion makes no reference to the allowance of attorney's fees, except in the title of the act and in section 3. It will be observed that section 3 consists of a single sentence and that the proviso constitutes the very end, not only of section 3 but also of the statute considered as a whole. Looking again at section 3, it will be seen at once that the words "in any action for the collection of any such order, check, memorandum, or other acknowledgment of indebtedness," when standing alone are broad enough to include cases where the employé has been discharged, as well as those where the employé has voluntarily quit; and, furthermore, "any action by an employé against an employer for the collection of wages" necessarily includes all such actions. In other words, the purview of the statute, when considered by itself, authorizes the allowance of attorney's fees in all actions to recover wages, if the wages due are not paid within 48 hours after demand. But the purview of the statute is limited by a proviso which declares that "such employé" shall not be entitled to an attorney's fee unless he "shall have given not less than three days' notice of his intention to quit his employment."

The...