State ex rel. Weasmer v. Manpower of Omaha, Inc.

Decision Date09 December 1955
Docket NumberNo. 33814,33814
Citation73 N.W.2d 692,161 Neb. 387
PartiesSTATE of Nebraska ex rel. James L. WEASMER, Commissioner of Labor, Appellant, v. MANPOWER OF OMAHA, Inc., Appellee.
CourtNebraska Supreme Court

Syllabus by the Court.

1. The petition on which this case was tried describes an employment agency as such agency is defined by sections 48-501 and 48-502, R.R.S.1943.

2. Penal statutes are inelastic and must be strictly construed, and may not be extended by implication.

3. Injunction may be properly used for the protection of public rights, property or welfare.

4. The maintenance of an employment agency as defined by sections 48-501 and 48-502, R.R.S.1943, has a relation to the public welfare.

5. Where, on appeal in equity from a judgment of the district court, the record contains no bill of exceptions and the pleadings are sufficient to support the judgment, it will be affirmed.

6. Where a bill of exceptions has been quashed, no question will be considered the determination of which necessarily involves an examination of the evidence adduced in the trial court, and in such a situation, if the pleadings are sufficient to support the judgment, it will be affirmed.

7. By the terms of section 25-1140.01, R.R.S.1943, a party appealing from a judgment of the district court may elect to come to this court on a bill of exceptions containing less than all of the evidence adduced at the trial. If, however, he does so elect he must within 3 days after notice of appeal serve notice upon the adverse party or his attorney of record and file with the clerk of the district court (1) a designation of the witnesses whose testimony he deems essential, (2) a designation of the exhibits and such trial proceedings as he desires to have included, and (3) a statement of the errors he intends to rely upon for reversal or modification of the judgment or final order from which the appeal is taken.

8. The same statute grants to the opposing party the right within 7 days thereafter to request additions and to have such requested additions made a part of the bill of exceptions.

9. The statute provides for service of the notice within 3 days after notice of appeal upon the adverse party or his attorney of record but does not prescribe any method of service.

10. Where a statute requires service upon a designated person or persons and no method of service is prescribed, and the question of whether or not service has been had comes into dispute, the burden devolves upon the party making the service to make due proof thereof.

11. As against clear and unequivocal evidence that notice was not received proof that notice was placed in the mail addressed to the party to be served may not be accepted as due proof of service.

12. The filing of a motion to quash a bill of exceptions in this court is proper procedure whereby to present the question of whether or not there has been compliance with the requirements necessary to obtain and settle a bill of exceptions.

13. Where a party at the earliest opportunity objects to the propriety of a bill of exceptions as to a matter involving the deprivation of a substantial right and he continues at all times to urge his objection, he may not ordinarily be said to have waived it.

Clarence S. Beck, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., for appellant.

Edmund R. Sturek, Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

YEAGER, Justice.

This is an action in equity instituted by the State of Nebraska on relation of James L. Weasmer, Commissioner of Labor, relator and appellant, against Manpower of Omaha, Inc., a corporation, respondent and appellee, the purpose of which was to enjoin the respondent from operating an employment agency without compliance with the statutes requiring employment agencies to obtain a license to operate such an agency.

The action was tried to the court at the conclusion of which a decree was rendered in favor of the respondent and against the relator in which decree it was found that the respondent was not an employment agency within the purview of the Nebraska statutes. From this decree the relator has appealed. The only substantial question raised by the assignments of error is that of whether or not the respondent is an employment agency within the meaning of the statutes and the facts as they appeared on the trial.

Section 48-501, R.R.S.1943, defines employment agency. The section in this respect, to the extent necessary to quote it here, is as follows: 'The term 'employment agency,' means and includes the business of conducting, as owner, agent, manager, contractor, subcontractor or in any other capacity, an intelligence office, domestic and commercial employment agency, theatrical employment agency, bonding and reference bureau, shipping agency, teachers' employment agency, general employment bureau or any other agency or office for the purpose of procuring or attempting to procure help or employment or engagements, or for the registration of persons seeking such help, employment or engagement, or for giving information as to where and of whom such help, employment or engagement may be procured, where a fee or other valuable consideration is exacted, or attempted to be collected, directly or indirectly, for such services, whether such business is conducted in a building or on the street or elsewhere.'

The section defines fee as follows: 'The term 'fee' means and includes any money or other valuable consideration paid or promised to be paid for services rendered or to be rendered by any person conducting an employment agency of any kind under the provisions of said sections. Such term includes any excess of money received by any such person, over what has been paid out by him for the transportation, transfer of baggage or board and lodging for any applicant for employment. Such term also includes the difference between the amount of money received by any such person who furnishes employees and the amount paid by him to such employee.'

Section 48-502, R.R.S.1943, provides: 'Any person, firm or corporation who for hire or with a view to profit shall undertake to secure employment or help or through the medium of cards, circulars, pamphlets of any nature whatsoever, or through the display of a sign or bulletin offer to secure employment or help or give information as to where employment or help shall be secured, shall be deemed a private employment agency and shall be subject to the provisions of sections 48-501 to 48-514.'

It is obvious from a reading of these sections that section 48-502, R.R.S.1943, is cumulative of section 48-501, R.R.S.1943, in that it includes within the definition of employment agency the procurement of help for an employer as distinguished from procurement of employment for an employee. It also subjects employment agencies to all of the provisions of article 5, chapter 48, of the Nebraska statutes.

Section 48-503, R.R.S.1943, provides: 'No person, firm or corporation in this state shall open, operate or maintain a private employment agency for hire or for help without first obtaining a license for the same from the Commissioner of Labor, * * *.'

Coupled with allegations of fact which are not in dispute the petition of the relator alleges the following facts upon which it relies to have the respondent declared an employment agency and to have it enjoined from operating as such without the procurement of a license required by section 48-503, R.R.S.1943:

'3. That the respondent, Manpower of Omaha, Inc., is * * * engaged in the maintenance and operation of an employment agency * * * without * * * first procuring or taking out therefor * * * a license as required by said laws.

'4. That respondent's business office is open to the public and the public is invited to avail themselves of the services offered by the respondent; that respondent interviews and lists in its files, without charge for registration, persons who come to it seeking part-time or temporary work; that other business organizations or persons interested in procuring such help notify respondent of their needs and respondent selects from its files a person deemed qualified to fulfill the request and dispatches him or her to the requesting organization or other person; that the requesting organization reports the actual hours that the worker dispatched has labored and respondent then bills the requesting organization at an hourly rate which is determined in advance according to the type of work requested or performed; that the hourly amount billed the requesting organization is greater than the hourly amount which is then paid to the person dispatched; that respondent keeps all records on the persons it dispatches, withholds social security and withholding taxes, maintains workmen's compensation insurance, liability insurance and fidelity bonds.'

To the extent necessary to set forth its contents here the answer denies that the respondent has ever engaged in the maintenance or operation of an employment agency or that it has violated any valid, constitutional, or enforceable statute of the State of Nebraska. And further the answer contains a general denial.

No theory of unconstitutionality of the statutory provisions in question is urged here hence that phase of the answer may be disregarded.

Also no theory of invalidity of statute on other grounds is presented. The respondent asserted in its brief that the provisions to which the petition relates are penal in character and must be strictly construed, and that being thus construed itg must be said that the respondent was guilty of no violation of the statutes.

As contended by respondent penal statutes are inelastic and must be strictly construed, and may not be extended by implication. See, Macomber v. State, 137 Neb. 882, 291 N.W. 674; State v. Chicago & N. W. R. Co., 147 Neb. 970, 25 N.W.2d 824.

It however can have no controlling...

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