State v. Blaser

• Decision Date: 11 November 1933
• Docket Number: 31284.
• Citation: 138 Kan. 447,26 P.2d 593
• Parties: STATE v. BLASER et al.
• Court: Kansas Supreme Court

26 P.2d 593

138 Kan. 447

STATE v. BLASER et al.

No. 31284.

Supreme Court of Kansas

November 11, 1933

Syllabus by the Court.

Statute prohibiting public improvement contractor from employing laborers at less wage than "current rate of per diem wages" in locality, if intended as criminal statute held void for uncertainty as to meaning of quoted phrase (Rev. St. Supp. 1931, 44--201; Rev. St. 1923, 44--205).

Statute prohibiting public improvement contractor from employing laborers at less wage than current rate of per diem wages in locality held not intended to form basis of criminal liability (Rev. St. Supp. 1931, 44--201; Rev. St. 1923 44--202 to 44--205).

Information charging public improvement contractor with having employed laborers at less wage than current rate of per diem wages in locality held too indefinite, where it did not disclose class of laborers employed or alleged current rate of per diem wages for such laborers, nor what was paid by contractor (Rev. St. Supp. 1931, 44--201).

Information must charge offense with such certainty that defendant may know offense which he must prepare to meet.

When statute creating offense states facts constituting it information may be in statutory language, but, where statute is in general terms only, information should be more specific.

In an appeal by the state from a judgment quashing an information which attempted to charge defendants (under R.S.Supp. 1931 44--201), while constructing a building in Wichita under a contract with the board of education of the city, with employing "laborer and other persons at a less wage than the current rate of per diem wages in the locality," the questions are considered and it is held, first, that the provision of the statute relied upon by the state was not intended to form the basis of criminal liability; second, if so intended, it is void for uncertainty, following Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322; and, third, the information is too indefinite to charge an offense.

Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.

Frank E. Blaser and Clarence E. Vollmer were charged with violating a statute prohibiting the employment of laborers and other persons at less wage than current rate of per diem wages in locality where work of constructing school building was being performed. From a judgment sustaining a motion to quash the information, the state appeals.

Statute prohibiting public improvement contractor from employing laborers at less wage than current rate of per diem wages in locality held not intended to form basis of criminal liability. Rev.St.Supp.1931, 44-201; Rev.St.1923, 44-202 to 44-205.

Roland Boynton, Atty. Gen., Walter T. Griffin, Asst. Atty. Gen., and John W. Wood, Co. Atty., of Wichita, for the State.

W. A. Ayres, Austin M. Cowan, C. A. McCorkle, J. D. Fair, W. A. Kahrs, and R. H. Nelson, all of Wichita, for appellees.

HARVEY Justice.

This is an appeal by the state from the judgment of the trial court sustaining a motion to quash an information which attempted to charge defendants with the violation of R.S.Supp. 1931, 44--201, in that while constructing a school building in the city of Wichita, under a contract with the board of education of that city, defendants did "employ laborers and other persons at a less wage than the current rate of per diem wages in the locality said work and labor was performed." The statute above referred to, among other things, provides: "Not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers or other persons so employed" on contracts with the state, or its municipalities, for construction work. The statute contains a definition for the word "locality," and for the phrase, "the current rate of per diem wages," and the state contends that R. S. 44--205 provides the penalty sought to be imposed.

The motion to quash, broadly speaking, was predicated upon two grounds: First, that the statute is so indefinite as to be unconstitutional; and, second, that the information does not state facts sufficiently definite and certain to form the basis of a prosecution, or to enable defendants to know with what specific thing they are charged as constituting an offense.

As to the first ground, a statute of the state of Oklahoma, identical with our R. S. 44--201 (prior to its amendment by chapter 214, Laws 1931), was held void by the Supreme Court of the United States in Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322. The headnotes read:

"1. A criminal statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess at its meaning and differ as to its application, lacks the first essential of due process of law.

"2. Oklahoma Comp. Stats. 1921, §§ 7255, 7257, imposing severe, cumulative punishments upon contractors with the State who pay their workmen less than the 'current rate of per diem wages in the locality where the work is perfomed,'--held void for uncertainty."

In the opinion it is said: "That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law"--citing International Harvester Co. v. Kentucky, 234 U.S. 216, 221, 34 S.Ct. 853, 58 L.Ed. 1284; Collins v. Kentucky, 234 U.S. 634, 638, 34 S.Ct. 924, 58 L.Ed. 1510. Also United States v. L. Cohen Grocery Co., 255 U.S. 81, 92, 41 S.Ct. 298, 65 L.Ed. 516, 14 A.L.R. 1045, where a section of the Food Control Act of 1917 (40 Stat. 276), which imposed a penalty upon any person who should make "any unjust or unreasonable rate or charge, in handling or dealing in or with any necessaries," was held to be invalid in that the words fixed no ascertainable standard of guilt and forbade no specific nor definite act. Also United States v. Capital Traction Co., 34 App. D. C. 592, 19 Ann.Cas. 68, where a statute which made it an offense for the street car company to run an insufficient number of cars to accommodate passengers "without crowding," was held void for uncertainty. Considering the statute under review, requiring the contractor, at the risk of incurring severe and cumulative penalties, to pay his workmen "not less than the current rate of per diem wages in the locality where the work is performed," the court said: "We are of opinion that this provision presents a double uncertainty, fatal to its validity as a criminal statute. In the first place, the words 'current rate of wages' do not denote a specific or definite sum, but minimum, maximum, and intermediate amounts, indeterminately, varying from time to time and dependent upon the class and kind of work done, the efficiency of the workmen, etc. *** The statutory phrase reasonably cannot be confined to any of these amounts, since it imports each and all of them. The 'current rate of wages' is not simple, but progressive--from so much (the minimum) to so much (the maximum), including all between; and to direct the payment of an amount which shall not be less than one of several different amounts, without saying which, is to leave the question of what is meant incapable of any definite answer. *** The vice of the statute here lies in the impossibility of ascertaining, by any reasonable test, that the Legislature meant one thing rather than another, and in the futility of an attempt to apply a requirement, which assumes the existence of a rate of wages single in amount, to a rate in fact composed of a multitude of gradations. To construe the phrase 'current rate of wages' as meaning either the lowest rate or the highest rate, or any intermediate rate, or, if it were possible to determine the various factors to be considered, an average of all rates, would be as likely to defeat the purpose of the Legislature as to promote it."

There is a further discussion of the uncertainty of the word "locality."

Following this decision of the Supreme Court of the United States, our Legislature, in 1931 (chapter 214, Laws 1931), amended R. S 44--201 so as to include definitions as follows: "'The current rate of per diem wages' for the intents and purposes of this act shall be the rate of wage paid in the locality as hereinafter defined to the greater number of workmen, laborers or mechanics in the same trade, occupation or work of a similar nature. In the event that it be determined that there is not a greater number in the same trade, occupation or on similar work paid at the same rate, then the average rate paid to such laborers, workmen or mechanics in the same trade, occupation, or work shall be the current rate. The 'locality' for the purpose of this act shall be the county wherein the physical work is being performed: Provided, That where cities of the first or second class are located in said counties, each such city shall be considered a locality." Disposing first of the word "locality," as thus defined and as applied to this case, we have no difficulty in saying that, since the work here was being done in the city of Wichita, a city of the first class, the city is the locality referred to in the statute, although the contract under which the work was being done was made with the board of education of the city. Looking at the definition given in the statute of the phrase, "the current rate of per diem wages," and comparing that with the reasons given by the Supreme Court in Connally v. General Const. Co., supra, the definition seems to be open to all the objections stated against it in that opinion. It is conceded in the argument in ...