People v. Sheffield Farms-Slawson-Decker Co.

Decision Date10 December 1918
CourtNew York Court of Appeals Court of Appeals


Appeal from Supreme Court, Appellate Division, First Department.

Proceeding by the People of the State of New York, on the information of John H. Price, against the Sheffield Farms-Slawson-Decker Company. From a judgment of the Appellate Division of the Supreme Court for the First Department (180 App. Div. 615,167 N. Y. Supp. 958) affirming a judgment convicting defendant of violating section 162 of the Labor Law, defendant appeals. Affirmed.George W. Alger, of New York City, for appellant.

Edward Swann, Dist. Atty., of New York City (Robert S. Johnstone, of New York City, of counsel), for respondent.


The defendant, a corporation, has been convicted of violating section 162 of the Labor Law (Consol. Laws, c. 31). That section provides that--

‘No child under the age of fourteen years shall be employed or permitted to work in or in connection with any percentile * * * establishment specified in the preceding section.’

Violation of the Labor Law is a misdemeanor, and is punishable, if a first offense, by a fine of not less than $20 nor more than $50. Penal Law (Consol. Laws, c. 40) § 1275. Heavier fines and even imprisonment may follow a repetition of the offense. Penal Law, § 1275. In this case the fine imposed was $20. The question is whether there is any evidence of guilt.

[1] The defendant is engaged in the sale of milk. It employs 125 drivers to make deliveries to its customers. In February, 1917, one of the state's inspectors found a boy of 13 years assisting in a driver's work. The driver, one Schmidt, employed the boy and paid him. Schmidt's purpose seems to have been to prevent the theft of milk bottles, and thus to benefit the defendant, whose practice had been to stand the loss from thefts itself. None the less he knew that his conduct, whether helpful to the defendant or not, was forbidden by its rules. The rule was that drivers, under pain of dismissal, were not to allow any person not in the employ of the company to assist them in any way or to ride on their wagons. But the defendant's duty did not end with the mere promulgation of a rule. Larkin v. N. Y. Tel. Co., 220 N. Y. 27, 32,114 N. E. 1043. There was some duty of enforcement. The defendant was not blind to the fact that the rule was often broken. Word had often come to it before that some of its drivers were employing boys to help them. It sent out its inspectors ‘maybe once a week or a month’ to discover and report delinquents. Offenders discovered had been reprimanded, but noe discharged. One driver, who had been prosecuted by the people, was still, though convicted, in the defendant's service. For six months the boy employed by Schmidt had been doing the same work. The inference is permissible that there was no adequate system either of repression or of detection. We must say whether on such facts a fine may lawfully be imposed.

There are two statutes to be construed: the Labor Law, which imposes the duty, and the Penal Law, which attaches the penalty. The Labor Law, standing by itself, is not a criminal statute. The purpose of most of its provisions is not penal, but remedial. But a separate statute (Penal Law, § 1275) supplements its mandates and prohibitions by attaching penal consequences. For many years they were attached to the violation of certain enumerated provisions and those only. Penal Code, § 384-1, added by Laws 1897, c. 416, § 3, and amended by Laws 1903, c. 380, § 1; Laws 1907, c. 506, § 2; Penal Law, § 1275, as enacted by Laws 1909, c. 88. Included in that enumeration were the provisions relating to factories and the employment of children therein; those relating to the manufacture of articles in tenements; and those relating to mercantile establishments and the employment therein of women and children. Laws 1897, c. 416. But an amendment passed in 1913 (Laws 1913, c. 349, § 1) has imported into the domain of the law of crimes a vast body of rules which grew up in other fields of law. The statute (Penal Law, § 1275) now contains the sweeping declaration that ‘any person who violates or does not comply with any provision of the Labor Law, any provision of the Industrial Code, any rule or regulation of the industrial board of the department of labor, or any lawful order of the commissioner of labor,’ shall be guilty of a crime. See, also, second report of the Factory Investigating Commission January 15, 1913, vol. 1, p. 50. These penal consequences, imposed by a separate statute, do not of necessity affect the meaning that the Labor Law would have without them. The scope of the duty is one problem; the extent to which the breach may be visited with punishment, another.

[2] At the outset, therefore, we turn to the Labor Law itself. Section 162 is directed primarily against the employer, and only secondarily against others as they may aid and abet him. People v. Taylor, 192 N. Y. 398, 400,85 N. E. 759. He must neither create nor suffer in his business the prohibited conditions. The command is addressed to him. Since the duty is his, he may not escape it by delegating it to others. People v. Taylor, supra. He breaks the command of the statute if he employs the child himself. He breaks it equally if the child is employed by agents to whom he has delegated ‘his own power to prevent.’ Lord Alverstone, C. J., in Strutt v. Clifts, [1911] 1 K. B. 1, 6, 7, and Emary v. Nolloth, [1903] 2 K. B. 264. What is true of employment, must be true of the sufference of employment. Bond v. Evans, L. R. 21 Q. B. D. 249. The personal duty rests on the employer to inquire into the conditions prevailing in his business. He does not rid himself of that duty because the extent of the business may preclude his personal supervision, and compel reliance on subordinates. He must then stand or fall with those whom he selects to act for him. He is in the same plight, if they are delinquent, as if he had failed to abate a nuisance on his land (R. v. Stephen, L. R. 1 Q. B. 702; Tenement House Department, N. Y. City, v. McDevitt, 215 N. Y. 160, 167, 168,109 N. E. 88, Ann. Cas. 1917A, 455), or had failed to furnish a safe place of work (Labor Law, § 200). It is not an instance of respondeat superior. It is the case of the nonperformance of a nondelegable duty. Hankins v. N. Y., L. E. & W. R. R. Co., 142 N. Y. 416, 420,37 N. E. 466, 25 L. R. A. 396, 40 Am. St. Rep. 616. There are a host of other provisions in the Labor Law where the duty must be held personal, or we nullify the statute (sections 69, 79, 81, 83a, 83b, 94).

[3] The employer, therefore, is chargeable with the sufferance of illegal conditions by the delegates of his power. But to say that does not tell us how sufferance may be implied. We do not construe the statute with all the rigor urged by counsel for the people. Not every casual service rendered by a child at the instance of a servant is ‘suffered’ by the master. If a traveling salesman employed by a mercantile establishment in New York gives a dime to a boy of 13 who has carried his sample case in Buffalo, the absent employer is not brought within the grip of the statute. Sufferance as here prohibited implies knowledge or the opportunity through reasonable diligence to acquire knowledge. This presupposes in most cases a fair measure at least of continuity and permanence. Tenement House Dept., N. Y. City, v. McDevitt, supra, page 164 of 215 N. Y., 109 N. E. 88, Ann. Cas. 1917A, 455. But, the duty to inquire existing, there is no safety in ignorance if proper inquiry would avail. Purtell v. Phila. Coal Co., 256 Ill. 110, 117. Whatever reasonable supervision by oneself or one's agents would discover and prevent, that, if continued, will be taken as suffered. Within that rule, the cases must be rare where prohibited work can be done within the plant, and knowledge or the consequences of knowledge avoided. But where work is done away from the plant, the inference of sufference weakens as the opportunity for supervision lessens. No one would say that an employer had suffered the continuance of a wrong because some pieceworker, working at home on a garment, had been aided by a child. In such a case, the true implications of sufferance would be almost instinctively perceived. On the other hand, we think the statute draws no distinction between sufferance and permission. This is apparent from its scheme as revealed in related sections. Labor Law, §§ 70, 161, 93, 131. The two words are used indiscriminately. In such circumstances, each may take some little color from the other. Permission, like sufferance, connotes something less than consent. Sufferance, like permission, connotes some opportunity for knowledge. Thus viewed, the scheme of the statute becomes consistent and uniform.

[4][5][6][7] From the Labor Law itself, and the definition of the statutory duty, we pass to the Penal Law, and the determination of the statutory penalties. It is only in their application to section 162 of the Labor Law that those penalties concern us. What the Penal Law means in its application to other sections we do not attempt to say. Such cases must be dealt with as they arise, Slight differences in the mischief to be remedied or in the wording of the law or in the presumable purpose of the lawmakers may work a change of meaning. R. v. Tolson, L. R. 23 Q. B. D. 168, 174. When the problem is thus limited, the answer is not doubtful. Any act or omission that will charge an employer with a breach of section 162 of the Labor Law becomes by force of this section 1275 a breach of the Penal Law as well. That is the plain meaning, and we are not at liberty to detract from it. There was power in the Legislature to impose this stringent penalty and to punish offenders by fines moderate in amount. We have recently sustained the exercise of a like power where the fine was recoverable through the form of a civil...

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