State ex rel. W. Reference & Bond Ass'n, Inc. v. Kinney, 31021.

Citation138 Neb. 574,293 N.W. 393
Decision Date02 August 1940
Docket NumberNo. 31021.,31021.
PartiesSTATE EX REL. WESTERN REFERENCE & BOND ASS'N, INC., v. KINNEY, SECRETARY OF LABOR (MILLS TEACHERS AGENCY ET AL., INTERVENERS).
CourtSupreme Court of Nebraska

138 Neb. 574
293 N.W. 393

STATE EX REL. WESTERN REFERENCE & BOND ASS'N, INC.,
v.
KINNEY, SECRETARY OF LABOR (MILLS TEACHERS AGENCY ET AL., INTERVENERS).

No. 31021.

Supreme Court of Nebraska.

Aug. 2, 1940.



Syllabus by the Court.

1. A motion for judgment on the pleadings admits only facts well pleaded in an answer and does not admit a conclusion of law.

2. Section 9, art. XV of the Nebraska Constitution, provides: The legislature may enact laws “for the prevention of unfair business practices and unconscionable gains in any business or vocation affecting the public welfare.” In the absence of evidence disclosing that the statute is confiscatory, thereby depriving a person of property without due process of law, the presumption is that the factual situation favors the legislature in enacting such law, and that it is not in contravention of section 3, art. I of the Constitution of Nebraska, the due process clause.

3. That part of section 48-508, Comp.St. 1929, objected to, wherein the maximum amount that may be charged by a private employment agency for services rendered is fixed, is unconstitutional in that it contravenes section 1 of the Fourteenth Amendment to the Constitution of the United States.

4. The power to require a license for and to regulate the conduct of private employment agencies is distinct from the power to fix prices. Ribnik v. McBride, 277 U.S. 350, 48 S.Ct. 545, 72 L.Ed. 913, 56 A.L.R. 1357.


Original action in mandamus by the State, on the relation of the Western Reference & Bond Association, Incorporated, relator, against V. B. Kinney, Secretary of Labor of the State of Nebraska, to compel the defendant to issue a license to the relator to do business as a private employment agency, wherein the Mills Teachers Agency, the Thomas Employment Service, and Cooperative Reference Company, the Marti Reference Company, the Watts Reference Company, the Cornhusker Teachers Bureau, Grace Boomer, and the Davis School Service intervened.

Judgment ordering that peremptory writ should issue.

JOHNSEN, J., dissenting.

[293 N.W. 394]

Tunison & Joyner, of Omaha, for relator.

Tunison & Joyner, of Omaha, for interveners.


Walter R. Johnson, Atty. Gen., and Don Kelley, Asst. Atty. Gen., for respondent.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.

MESSMORE, Justice.

This is an original action in mandamus. The relator is a private employment agency and seeks to compel the secretary of labor of Nebraska to issue it a license to do business as such. The respondent refused to issue a license because relator refused to comply with section 48-508, Comp.St.1929, fixing the maximum compensation which an employment agency may collect. The respondent's answer seeks to justify the refusal to issue the license for the reason as above stated, and specifically alleges that the business of a private employment agency is vitally affected with a public interest, and the legislature, in the exercise of its police power, can lawfully regulate the maximum fee. A petition in intervention was filed by eight additional agencies, which allege that they operate on the same basis as the relator. By stipulation, the respondent's answer stands to the petitions in intervention. The relator filed a motion for judgment on the pleadings.

By stipulation, the only issue for determination in the cause is the constitutionality of section 48-508, Comp.St.1929, in so far as the same fixes or limits the fees or compensation for private employment agencies.

The respondent contends that the motion of relator for judgment on the pleadings has the effect of admitting all material facts in the answer.

[1][2][3] A motion for judgment on the pleadings admits, either directly or impliedly, the truth of all well pleaded facts in the pleading of the opposing party. Such a motion is in the nature of a demurrer and raises an issue of law only. Van Etten v. Kosters, 48 Neb. 152, 66 N.W. 1106;Webster v. City of Hastings, 56 Neb. 669, 77 N.W. 127;Abrahams v. Studebaker Corporation, 113 Neb. 721, 204 N.W. 786. A motion for judgment on the pleadings does not admit conclusions of the pleader. The allegation in respondent's answer,--that the business of a private employment agency in Nebraska is vitally affected with a public interest,--is a conclusion of law. State v. Wurdeman, 311 Mo. 64, 277 S.W. 571;Newport News Shipbuilding & Dry Dock Co. v. Schauffler, 303 U.S. 54, 58 S.Ct. 466, 82 L.Ed. 646.

The pertinent part of the statute here involved is as follows: “No licensed person or persons shall, as a condition to registering or obtaining employment for such applicant, require such applicant to subscribe to any publication or exact other fees, compensation or reward, other than the registration fee, aforesaid, and a further fee, the amount of which shall be agreed upon between such applicant and such licensed person, to be payable at such time as may be agreed upon in writing, ‘the amount of which, together with said registration fee of $2.00 added thereto shall in no case exceed 10 per cent of all moneys paid to or to be paid or earned by said applicant, for the first month's service growing out of said employment furnished by said employer.’ ” Comp.St.1929, sec. 48-508.

Relator concedes that a private employment agency is subject to regulation by the state and may be compelled to pay a license fee for the privilege of conducting such business. Brazee v. Michigan, 241 U. S. 340, 36 S.Ct. 561, 60 L.Ed. 1034;Ribnik v. McBride, 277 U.S. 350, 48 S.Ct. 545, 72 L.Ed. 913, 56 A.L.R. 1327. Relator's claim is that the part of the statute aboye set out, fixing the fees and compensation of an employment agency, is in contravention of section 3, art. I of the Constitution of Nebraska, which reads: “No person shall be deprived of life, liberty, or property, without due process of law.”

The respondent cites section 9, art. XV of the Constitution of Nebraska, as follows: “Laws may be enacted providing for the investigation, submission and determination of controversies between employers and employees in any business or vocation affected with a public interest, and for the prevention of unfair business practices

[293 N.W. 395]

and unconscionable gains in any business or vocation affecting the public welfare. An Industrial Commission may be created for the purpose of administering such laws, and appeals shall lie to the Supreme Court from the final orders and judgments of such commission.” (Italics ours.)

The respondent's contention is that the language in italics disposes of the relator's challenge, so far as the Nebraska Constitution is concerned; that such provision of the Constitution gives to the legislature authority to enact laws to prevent unfair business practices and unconscionable gains affecting the public welfare.

[4] The language of section 9, art. XV, as above quoted, is clear and comprehensive. In the absence of evidence disclosing that the statute is confiscatory, thereby depriving a person of property without due process of law, the presumption is that on the factual situation the legislature, in enacting section 48-508, Comp.St.1929, contemplated that such act was in accord with section 9, art. XV of the Constitution. Under the circumstances, we conclude: That part of section 48-508, Comp.St.1929, objected to, does not contravene section 3 art. I of the Constitution.

Relator further contends that the issue, as stated, contravenes that part of section 1 of the Fourteenth Amendment to the Constitution of the United States, reading in part: “Nor shall any State deprive any person of life, liberty, or property, without due process of law.”

[5] Our attention is specifically called to the case of Ribnik v. McBride, 277 U.S. 350, 48 S.Ct. 545, 72 L.Ed. 913, 56 A.L.R. 1327, decided May 28, 1928. The New Jersey statute empowered the commissioner of labor to provide a schedule of fees for services to employers seeking employees and persons seeking employment. Discretion with reference to the fees and granting of the license was left to the labor commissioner. All conditions of the statute were conformed to and complied with except the part with reference to the fees as fixed in the schedule and charged therein. The Ribnik case is analogous to the instant case, except that the statute in Nebraska fixes the maximum charge...

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