Seeleyville Coal & Mining Co. v. McGlosson

• Decision Date: 29 May 1906
• Docket Number: No. 20,758.,20,758.
• Citation: 77 N.E. 1044,166 Ind. 561
• Court: Indiana Supreme Court
• Parties: SEELEYVILLE COAL & MINING CO. v. McGLOSSON.

166 Ind. 561

77 N.E. 1044

SEELEYVILLE COAL & MINING CO.

v.McGLOSSON.

No. 20,758.

Supreme Court of Indiana.

May 29, 1906.

Appeal from Circuit Court, Vermillion County; Ared F. White, Judge.

Action by Jacob W. McGlosson against the Seeleyville Coal & Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

T. W. Harper, C. W. Ward, and F. A. Kelley, for appellant. Wm. Tichenor and G. G. Rheuby, for appellee.

JORDAN, C. J.

This cause was originally appealed to the Appellate Court, but was transferred to the Supreme Court on the ground that the constitutionality of a statute was involved. The action was commenced in the Vigo superior court, and on change of venue was tried in the Vermillion circuit court.

The suit is based upon sections 1 and 4 of an act of the Legislature approved February 14, 1887 (Acts 1887, p. 13; sections 7065, 7068, Burns' Ann. St. 1901). It is entitled “An act requiring corporations, companies, associations, firms and persons engaged in mining or manufacturing, in this state, to pay their employés semi-monthly in lawful money of the United States, prohibiting the issue or circulation of script; regulating the sale of merchandise by employer to employé, and providing penalties for violation.” The first section is as follows: “Every corporation, association, company, firm or person engaged, in this state, in mining coal, ore or other mineral, or quarrying stone, or in manufacturing iron, steel, lumber, staves, heading barrels, brick, tile, machinery, agricultural or mechanical implements, or any article of merchandise, shall pay each employé of such corporation, company, association, firm or person, if demanded, at least once every two weeks, the amount due such employé for labor, and such payment shall be in lawful money of the United States, and any contract to the contrary shall be void.” Section 4 provides that “every corporation, company, association, firm or person who shall fail for ten days after demand of payment has been made to pay employés for their labor, in conformity with the provisions of this act, shall be liable to such employé for the full value of his labor, to which shall be added a penalty of one dollar for each succeeding day, not exceeding double the amount of wages due, and a reasonable attorney's fee, to be recovered in a civil action and collectible without relief.”

The complaint is in three paragraphs. The first alleges that the defendant is a corporation engaged in the business of mining coal in Vigo county, state of Indiana; that on the 11th day of December, 1901, said defendant became and was indebted to plaintiff in the sum of $24.41 for labor as a coal miner performed by plaintiff for defendant at its special instance and request. Said sum became and was due and payable by the defendant to plaintiff on said 11th day of December, 1901, at which time plaintiff demanded the same from defendant, whereupon it refused and still refuses and neglects to pay him the said $24.41, and the same is now due and wholly unpaid; that there is accrued on said claim of $24.41 as a penalty the sum of $48.82; that it has been necessary for plaintiff to employ an attorney in collecting said claim; and that a reasonable attorney's fee for said attorney's services is $25. Wherefore plaintiff demands judgment, etc. The second paragraph, in like manner as the first, charges that on December 24, 1901, wages had accrued and become due the plaintiff from defendant in the sum of $16.66. The third paragraph alleges that on January 13, 1902, defendant became indebted to plaintiff for wages in the sum of $17.92. Judgment is demanded in each of the paragraphs for the amount therein alleged to be due, including penalties and attorney's fees. The defendant unsuccessfully moved the court to strike out all that part of each paragraph of the complaint relating to damages, penalties and attorney's fees. A demurrer to each was overruled, to which defendant duly excepted. The answer was a general denial. Upon the issues joined between the parties there was a trial by court and a special finding of facts upon which the court stated its conclusion of law.

The facts as found by the court are in substance as follows: Appellant, Seeleyville Coal & Mining Company, is and was a corporation under the laws of the state of Indiana, during the years 1901 and 1902. Appellee herein was employed by said appellant during said year 1901 and the first part of the year 1902, as a laborer for the purpose of mining coal for appellant during said time. On December 10, 1901, appellant became and was indebted to appellee in the sum of $24.41 for wages in mining coal. Appellant had adopted the 10th and 25th days of each month as the regular pay days for paying wages to its employés. Said sum of $24.41 was the wages due for two weeks' labor prior to December 10, 1901. On the 11th day of said month appellee demanded said sum of appellant, which demand was refused and the same is now due and unpaid. On December 25, 1901, appellant was indebted to appellee for $16.66 for wages. Because December 25th was a holiday, appellant selected December 24th as pay day, and the sum of $16.66 was for wages for two weeks' labor prior to December 25th. On the 24th of December, 1901, appellee demanded payment of appellant of such sum, which it refused, and such sum is due and unpaid. On January 10, 1902, appellant became indebted to appellee in the sum of $17.92 for wages due for two weeks' labor prior to that date. On the 13th of that month appellee demanded payment of said sum, which demand appellant refused, and the same is due and unpaid. The labor was performed by appellee for appellant in Vigo county, Ind., and the wages became due in said county. On February 21, 1902, appellee commenced this action for the recovery of such sums and penalties, and he employed an attorney, who has rendered services in the value of $50. As a conclusion of law from the facts so found the court stated that appellee is entitled to recover in the sum of $58.99 for his labor, and the further sum of $117.98 as a penalty thereon, and the sum of $50 as his attorney's fees, to the total amount of $226.97. To this conclusion of law the appellant excepted. Over its motion for a new trial judgment was rendered for the above amount in favor of appellee.

Counsel for appellant concede that the amount of $58.99, which the court found was due to appellee, is correct. In their brief they say: “There is but one question which we desire to present, which is: Can appellee recover the penalty, damages and attorney's fees provided by section 7057, Burns' Ann. St. 1901?” They further argue that, if this action is founded on the act of 1887, supra (sections 7065 and 7068, Burns' Ann. St. 1901), which we have hereinbefore set out, then they contend that it cannot be maintained, for the reason asserted that all the laws fixing the time of payment of wages due to laborers are in conflict with the Constitution of this state. It is contended that the invalidity of the provisions of the act of 1887 herein involved is settled by the decisions of this court in Republic Iron, etc., Co. v. State, 160 Ind. 379, 66 N. E. 1005, 62 L. R. A. 136. The argument is further advanced that the act of 1887, providing for bimonthly payment of wages by the corporations, associations, etc., therein mentioned, is a violation of section 23 of our Bill of Rights, which declares that “the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.” The case at bar cannot, as insisted by counsel for appellant, be ruled by the decision in Republic Iron, etc., Co. v. State, supra. The statute in controversy in this latter case and the one herein involved are materially different. The distinction between the two acts is palpable. The invalidity of the statute involved in Republic Iron, etc., Co. v. State, supra, was by this court attributed to the fact that the act deprived both the employer and employé in all lines of labor of the right to contract for employment, except upon the condition that the wages earned by the employé should be paid weekly. The right of the Legislature to reasonably, or to a limited extent, regulate the payment of wages, as is done under the statute in the case at bar, was not in that appeal denied by the court. It will be observed that the act of 1887 does not profess to restrict or abridge the right of contract, except as against its express requirement that the amount due the employé for labor shall be paid in lawful money of the United States. This is the only express provision thereof which prohibits the right to contract. The constitutional validity of this provision of the act was fully sustained by this court in Hancock v. Yaden, 121 Ind. 366, 23 N. E. 253, 6 L. R. A. 576, 16 Am. St. Rep. 396.

It will be noted that the provisions of ...