Porter Coal Co. v. Davis

• Citation: 165 So. 93,231 Ala. 359
• Decision Date: 21 November 1935
• Docket Number: 6 Div. 688
• Parties: PORTER COAL CO. v. DAVIS.
• Court: Supreme Court of Alabama

165 So. 93

231 Ala. 359

PORTER COAL CO. v. DAVIS.

6 Div. 688

Supreme Court of Alabama

November 21, 1935

Rehearing Denied Jan. 16, 1936

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for damages by Leonard H. Davis against the Porter Coal Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Cabaniss & Johnston and Jos. F. Johnston, all of Birmingham, for appellant.

Hugh A Locke and Frank M. James, both of Birmingham, for appellee.

FOSTER Justice.

Plaintiff claims and recovered compensatory and punitive damages against appellant on a claim that defendant's servants duly authorized, unlawfully and maliciously prevented plaintiff from going upon defendant's premises to inspect or check the weighing of coal mined in defendant's mines after plaintiff had been selected by the miners, or a majority of them, to do so, and after he had made an agreement to that effect with them.

Appellee seems to insist that he has a cause of action regardless of section 1710, Code, on the theory that his contracted rights were wrongfully and maliciously interfered with by defendant. The only conduct of defendant material here in question is the refusal to allow plaintiff to go upon defendant's premises to perform the services which we have stated. Defendant had the right to do this, unless it was required by some rule of law applicable to those circumstances to permit plaintiff to go upon its premises for that purpose. If there is such a rule of law, defendant's breach would consist in the violation of that rule, for it is not contended that defendant caused plaintiff to be discharged from the service of the miners who had selected and employed him to do this work. It is therefore not within the rule of such cases. Pickens v. Hal J. Copeland Grocery Co., 219 Ala. 697, 123 So. 223; Louisiana Oil Corporation v. Green, 230 Ala. 470, 161 So. 479. So that the basis of plaintiff's cause of action must be that there was some rule of law whereby defendant owed plaintiff the legal duty to allow him to go upon its premises and perform the service which we have mentioned. The only rule of law relied upon and argued in brief which imposes such a duty is section 1710, Code. Appellant argues that it is unconstitutional and void, and indefinite and inoperative; that a statute cannot impose a legal duty which is dependent upon the will of some other person.

We think the justiciable right of plaintiff in this case is dependent upon that section of the Code, its validity and interpretation.

The matter argued by appellant in this connection is that it is void for uncertainty, in that "it does not say how the miners shall select a check weighman: it does not provide how, by whom or when notice must be given to the employer: it is completely lacking in any machinery for its enforcement."

The section (1710, Code) does provide that "the miners employed and working therein may furnish a check weighman." The manner in which he is to be selected is not prescribed. Not being so, the miners may pursue their own method, and no one else is given by the statute, nor its implication, any right to suggest or require how they shall proceed and select the man they are to furnish. It is not necessary in order to sustain a statute that such detail must be provided in it, when it fairly means that it is left to the discretion of those interested. The statute operates to fix the duty of defendant when the miners have exercised the right conferred on them. In so far as defendant is concerned, its legal duty becomes effective upon the exercise of an option delegated by law to others. This has been generally held to be within legislative competency, as we will undertake to show later.

It is not therefore an infringement of defendant's rights, nor uncertain to the extent that it is void because it permits those to whom the power is delegated to exercise their discretion as to the time, place, or manner of doing so. When they act, and defendant has sufficient information of that fact, then section 1710, Code, directs that defendant operating a coal mine shall give to the weighman selected access to and permit examination of the scales, measures, weights, and accounts. The statute does not, and no constitutional provision requires that it shall, provide for any definite form or character of notice or proof to defendant.

The primary concern of defendant is to know that the miners have selected a capable weighman to render this service without expense to defendant. But defendant would not, we think, be justified in demanding the pursuit of a custom as to the manner of selecting the weighman, which is not fairly inferable as a requirement of the statute which relates to the subject.

We see no interest which the statute conserves for the coal company in respect to the manner in which the weighman is selected, so long as there is no question about his selection, or his capacity and conduct.

It is also urged that the statute is unconstitutional because it, in a measure, delegates to the miners an essential feature of the duty thus prescribed; that it delegates legislation when the Legislature should make a completed enactment. This is a subject which has been often discussed by the courts. After much care, and with great exactness, it has been thus stated: "The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the lawmaking power, and must therefore be a subject of inquiry and determination outside of the halls of legislation." United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 484, 55 L.Ed. 563; Bailey v. Van Pelt, 78 Fla. 337, 82 So. 789; Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294.

The same power to legislate in conformity to the Constitution is also said to exist when the Legislature passes a statute to take effect upon the happening of a future event, and to delegate to another the power to determine or the discretion to create the event upon which it shall operate. The Municipal Code, as first enacted, was held properly to take effect when the city or town should so ordain. Ward v. State, 154 Ala. 227, 45 So. 655. And a city was held to have the power to determine whether a dispensary law should be there operative; and to fix a standard of conduct in the event it should elect not to conduct a dispensary. Ex parte Hall, 156 Ala. 642, 47 So. 199. And a county board of education was given the right, within the Constitution, to fix many matters of detail, which when done had the effect of putting into operation statutes conditioned to operate upon that contingency. McNiell v. Sparkman, 184 Ala. 96, 63 So. 977. And so a statute which removed the county seat of Baldwin county was held properly to be effective only when and if the commissioners, thereby created, ascertained certain facts to have occurred. Hand v. Stapleton, 135 Ala. 156, 33 So. 689.

The Lever Act of Congress (40 Stat. 276, as amended) relating to unjust and unreasonable rates was held to be void for uncertainty and incompleteness, because a constituent element of the offense (reasonableness of the rates) was not definitely prescribed, but was to be fixed by some extraneous authority. It was not completed legislation. "An ascertainable standard of guilt [[[must be] fixed by Congress rather than by courts and juries." It "forbids no specific or definite act." United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516, 14 A.L.R. 1045; Standard Chemicals & Metals Corporation v. Waugh Chemical Corporation, 231 N.Y. 51, 131 N.E. 566, 14 A.L.R. 1054.

But section 1710 does provide for a specific and definite act authorizing the performance of a power, and creating a duty not to exist until the power has been exercised. There is no element of duty left uncertain or not prescribed. Its performance is merely postponed until the miners create the condition on which it shall operate. Such legislation is within the rule defining the extent to which the Legislature may go in fixing a contingency for the law to be effective.

In the Lever Act an element of the duty was left to the varying opinions of the courts or juries trying the case to determine whether the rates were just and reasonable, and did not fix a standard uniformity applicable after it is put into operation. It was not dealing with a situation where the duty was definitely prescribed, but when its operative effect was dependent upon the discretion of others, as here.

In the...