Sherrill v. Brantley

• Decision Date: 22 December 1933
• Citation: 66 S.W.2d 529,334 Mo. 497
• Parties: B. W. Sherrill v. Benjamin B. Brantley, Doing Business as Atlas Printing Company, Appellant
• Court: Missouri Supreme Court

66 S.W.2d 529

334 Mo. 497

B. W. Sherrill v. Benjamin B. Brantley, Doing Business as Atlas Printing Company, Appellant

Supreme Court of Missouri

December 22, 1933

Motion for Rehearing Overruled December 6, 1933.

Appeal from Circuit Court of City of St. Louis; Hon. Charles W Rutledge, Judge.

Judgment affirmed.

Holland R. Polak for appellant; F. B. Hubachek, Charles Scott Kelly, F. E. Williams and Williams, Nelson & English of counsel.

(1) It is a fundamental rule of statutory construction that where two constructions are possible, one of which would render the statute unconstitutional and the other construction would render the statute constitutional, it is the duty of the court to adopt the construction which is constitutional. State ex rel. Hawes v. Mason, 153 Mo. 49; State ex rel. Tel. Co. v. Atkinson, 271 Mo. 42; State ex rel. Carpenter v. St. Louis, 318 Mo. 870; 2 Lewis Sutherland Statutory Construction (2 Ed.), sec. 498; 6 R. C L. 78. (2) Every presumption is to be indulged in favor of the validity of a statute and that presumption is to continue until invalidity is made to appear beyond a doubt. State v. Cantwell, 179 Mo. 245; State ex rel. McCaffrey v Aloe, 152 Mo. 466; Bank v. Clark, 252 Mo. 30; Ball v. Condie-Bray Glass & Paint Co., 11 S.W.2d 48. (3) The existence of facts reasonably sustaining classification contained in a statute will be assumed and one assailing classification has the burden to prove its unreasonableness. Bellerive Inv. Co. v. Kansas City, 13 S.W.2d 637. (4) It is also well established that when the constitutionality of a statute depends upon the existence of certain circumstances or facts the existence of the necessary circumstances or facts will be presumed by the courts to have been found by the legislative authority. State ex rel. Meals v. Hackmann, 217 S.W. 273; State ex rel. Kelly v. Hackmann, 275 Mo. 636, 205 S.W. 163; Ex parte Renfrow, 112 Mo. 598; State v. Wiley, 109 Mo. 443; State v. Rich, 20 Mo. 395; Cooley on Constitutional Limitations (6 Ed.) 220. (5) Section 28 of Article 4 of the Constitution is to be liberally construed. St. Louis v. Tiefel, 42 Mo. 588; State v. Matthews, 44 Mo. 523; Bergman v. Railroad, 88 Mo. 678; State v. Miller, 45 Mo. 425; State ex rel. v. Gordon, 223 Mo. 1; State ex rel. v. Revelle, 257 Mo. 529; State ex rel. v. Buckner, 308 Mo. 390, 272 S.W. 940. (a) If the contents of the different sections of a statute are germane and relate either directly or indirectly to the main subject of the statute, the legislation does not violate the above constitutional inhibition. State ex rel. Niedermeyer v. Hackmann, 292 Mo. 27, 237 S.W. 742; State v. Tallo, 308 Mo. 584, 274 S.W. 466; State ex rel. v. Terte, 324 Mo. 402, 23 S.W.2d 120; Star Square Auto Supply Co. v. Gerk, 325 Mo. 966, 30 S.W.2d 447; Johnson v. Harrison, 47 Minn. 578; 25 R. C. L. 858. (b) This constitutional provision is never given a construction which would hamper the Legislature in a faithful effort to embrace in one act a subject containing different features but all pertaining to the same legislative purpose. Ferguson v. Gentry, 206 Mo. 918; State v. Miller, 45 Mo. 495; State ex rel. v. Mead, 71 Mo. 266. (6) The proper construction of Section 16 of the Small Loan Act is that it does not undertake to change a sale into a loan but merely to bring the sales or assignments therein mentioned within the regulations of the act. Sec. 16, Laws 1929, pp. 203-4; Dunn v. State, 122 Ohio St. 431; Small Loan Legislation, by Gallert, Hilborn & May, p. 150; State v. Hill, 168 La. 766. (7) The regulation of the sale of wages, etc., in small amounts as provided in Section 16 of the Small Loan Act is reasonably necessary to insure the carrying out of the purpose of the Small Loan Act, and to prevent loan sharks from defeating the major purpose of the act. Small Loan Legislation, p. 154; Dunn v. State, 36 Ohio App. 170, 173 N.E. 22. (8) "The legislative power to regulate a given business implies a power to control transactions not within the field to which regulation is intended primarily to apply, if the control of such transaction has a reasonable tendency to increase the effectiveness of the regulation of the given business or is reasonably necessary or proper thereto," and such incidental regulations are germane to the main subject of legislation. Small Loan Legislation, by Gallert, Hilborn & May, p. 140; State ex rel. v. Terte, 324 Mo. 402, 23 S.W.2d 120; State v. Tallo, 308 Mo. 584; State ex rel. v. Mead, 71 Mo. 266; Purity Extract Co. v. Lynch, 276 U.S. 192; Railroad Comm. v. Railroad Co., 257 U.S. 563; New York ex rel. Silz v. Hesterberg, 211 U.S. 31.

Foristel, Mudd, Blair & Habenicht for respondent.

(1) Section 16 of the Act of 1929 is in conflict with Section 28, Article IV of the Constitution of Missouri, and therefore void. (a) The effect of the amendatory Act of 1929 (Session Acts of 1929, p. 201) is to make Section 16 thereof a part of the original Act of 1927 (Session Acts of 1927, p. 252). State ex rel. v. County Court, 128 Mo. 441; State ex rel. v. Gideon, 277 Mo. 356. (b) Since the title to the amendatory Act of 1929 contains no expression of the subject matter of the act further than a purpose to repeal certain mentioned sections of the Act of 1927 and to enact in lieu thereof new sections, the subject matter of the act must be germane to the title and deal exclusively with the subject matter of the original act which it amends. State ex rel. v. Gideon, 277 Mo. 356; State ex rel. v. Hackman, 305 Mo. 701; State v. Millonx, 301 Mo. 390; State ex rel. v. Heege, 135 Mo. 118; St. Louis v. Tiefel, 42 Mo. 590; State ex rel. v. Imel, 242 Mo. 303; State ex rel. v. Thomas, 313 Mo. 166; State v. Walker, 34 S.W.2d 131; 59 C. J. 816, sec. 400. (c) The provision of Section 16 of the Act of 1929 providing that the payment of $ 300 or less in money as consideration for any sale, assignment or order of the payment of wages, salaries, commissions or other compensation for services "shall be deemed a loan within the provisions of this act . . . and be governed by and be subject to the provisions and limitations of this act," neither deals exclusively with the subject matter contained in the body of the original Act of 1927 nor is germane to the title of that act, nor clearly expressed in the title of the amendatory Act of 1929 and is therefore violative of Section 28, Article IV of the Constitution of Missouri and void. State ex rel. v. Judges of the County Court, 41 Mo. 39; State ex rel. v. Persinger, 76 Mo. 346; State v. Coffee & Tea Co., 171 Mo. 634; Witzman v. Ry. Co., 131 Mo. 612; State v. Fulks, 207 Mo. 26; St. Louis v. Tiefel, 42 Mo. 578; State v. Hurley, 258 Mo. 275; Berry v. Milling Co., 284 Mo. 190; State v. Sloan, 258 Mo. 305; State v. Rawlings, 232 Mo. 554; State v. Wortman, 213 Mo. 131; State v. Revelle, 257 Mo. 529; State ex rel. v. Gordon, 233 Mo. 383; Hardware Co. v. Fisher, 269 Mo. 271; State ex rel. v. Gordon, 268 Mo. 713; State ex rel. v. Gideon, 277 Mo. 356; Southard v. Short, 320 Mo. 932; State v. Crites, 277 Mo. 194; State ex rel. v. County Court of Jackson County, 102 Mo. 531; State ex rel. v. Hackman, 292 Mo. 27; State v. Loomis, 115 Mo. 307; Tollison v. George, 153 Ga. 612. (d) Nor can the said provisions of Section 16 be reconciled with the Constitution in that their enactment is necessary to the enforcement or to avoid evasions of the Small Loan Act of 1927. State v. Fulks, 207 Mo. 26; State v. Hurley, 258 Mo. 275; State v. Persinger, 76 Mo. 346; State ex rel. v. Gordon, 268 Mo. 713; State v. Coffee & Tea Co., 171 Mo. 634. (e) The title expressing a purpose to "regulate" will not authorize legislation which prohibits. State v. Burgdoerfer, 107 Mo. 1; Berry v. Milling Co., 284 Mo. 182; State v. Clark, 54 Mo. 34. (2) Section 16 of the Act of 1929, violates Section 30, Article II of the Constitution of Missouri and also the Fourteenth Amendment to the Constitution of the United States, providing that no person shall be deprived of life, liberty or property without due process of law. Massie v. Cessna, 28 L. R. A. (N. S.) 1108; Schiller v. Utilities Co., 11 A. L. R. 454; State ex rel. v. Ashbrook, 154 Mo. 375; State v. Harris, 59 Mo.App. 127; State v. Julow, 129 Mo. 163; Coppage v. State of Kansas, 236 U.S. 1, 59 L.Ed. 440; State v. Flukes, 157 Mo. 125; State ex rel. v. Vandiver, 222 Mo. 254; Bassen v. Moncton, 308 Mo. 650; 6 R. C. L. 195; Lochner v. New York, 198 U.S. 45; Haller Sign Works v. Physical Culture Training School, 249 Ill. 436; Mugler v. Kansas, 123 U.S. 623, 31 L.Ed. 210; Ritchie v. People, 155 Ill. 98; State v. Miksicek, 225 Mo. 561; State v. Tie & Timber Co., 181 Mo. 536; St. L. & S.W. Ry. Co. v. Griffin, 106 Tex. 477. (3) Section 16 in question unreasonably deprives the employee of the free right of contract, in that he is thereby prohibited to sell his claim for wages earned and restricts him to a loan on the security of his claim, thereby compelling him, in effect, to obligate himself as a debtor, to guarantee the solvency of his employer and the collection of his claim. 6 R. C. L., sec. 193, pp. 196-7; State v. Julow, 129 Mo. 163; Chicago v. Wells, 236 Ill. 129; State of Va. v. Goodwill, 6 L. R. A. 623.

OPINION

Hays, J.

This is an action against an employer, brought by plaintiff as assignee of an assigned account for commissions earned by an employee in the service of said employer. From a judgment for plaintiff rendered on the pleadings the defendant appealed. This court's appellate jurisdiction rests upon a constitutional question lodged in the case and involving the validity of a certain statutory provision as contained in the so-called Small Loan Laws.

The gist of the petition is that one Echols during October, 1929 as solicitor of printing for defendant upon a commission basis,...