State v. Day-Brite Lighting, DAY-BRITE

• Citation: 240 S.W.2d 886,362 Mo. 299
• Decision Date: 11 June 1951
• Docket Number: No. 41979,DAY-BRITE,41979
• Parties: , 19 Lab.Cas. P 66,064 STATE v.LIGHTING, Inc.
• Court: Missouri Supreme Court

Page 886

240 S.W.2d 886

362 Mo. 299, 19 Lab.Cas. P 66,064

STATE v. DAY-BRITE LIGHTING, Inc.

No. 41979.

Supreme Court of Missouri, En Banc.

June 11, 1951.

Rehearing Denied July 9, 1951.

Louis J. Portner, Cobbs, Blake, Armstrong, Teasdale & Roos, Thomas H. Cobbs and Henry C. M. Lambin, St. Louis, for appellant.

J. E. Taylor. Atty. Gen., John R. Baty, Asst. Atty. Gen., for respondent.

HOLLINGSWORTH, Judge.

This is an appeal from a conviction in the St. Louis Court of Criminal Correction by which defendant-appellant (hereinafter designated as defendant) was adjudged to pay a fine of one hundred dollars for violation of Section 11785, Mo.R.S.A. The case was tried on an agreed statement of facts. The two questions for determination are whether (a) the facts support the verdict and (b) whether that part of the section under which defendant was convicted is violative of the constitutional rights of defendant as guaranteed it under the Constitutions of the United States and the State of Missouri.

Section 11785, enacted in 1897, Laws 1897, Sec. 1, p. 108 reads: 'Any person entitled to vote at any election in this state shall, on the day of such election, be entitled to absent himself from any services or employment in which he is then engaged or employed, for a period of four hours between the times of opening and closing the polls; and such voter shall not, because of so absenting himself, be liable to any penalty: Provided, however, that his employer may specify the hours during which such employee may absent himself as aforesaid. Any person or corporation who shall refuse to any employee the privilege hereby conferred, or shall discharge or threaten to discharge any employee for absenting himself from his work for the purpose of said election, or shall cause any employee to suffer any penalty or deduction of wages because of the exercise of such privilege, or who shall, directly or indirectly, violate the provisions of this section, shall be deemed guilty of a misdemeanor, * * *'.

The information, as originally filed, charged defendant in count one with refusing to permit its employee (Fred C. Grotemeyer) to absent himself from his employment for a period of four hours between the time of opening and closing of the polls on the general election day of November 5, 1946; in count two with penalizing him by deducting from his salary the amount of his earnings for the time he was absent from his work on that day. Defendant's conviction under count two is the basis of this appeal. For a history of the case prior to this appeal, see State v. Day-Brite Lighting, Inc., Mo.App., 220 S.W.2d 782.

Defendant, a Missouri corporation, operated a manufacturing plant in the City of St. Louis and its products 'moved in interstate commerce'. Fred C. Grotemeyer was and for several years prior to November 5, 1946, had been in its employ. He was a member of Local No. 1, International Brotherhood of Electrical Workers, which had a contract with defendant covering wages, hours and other working conditions of its employees. A work week consisted of forty hours, divided into five eight hour days. Grotemeyer was paid on an hourly basis at the rate of $1.60 per hour for each hour worked. His work day began at 8:00 a. m. and closed at 4:30 p. m., with a lunch period of thirty minutes from 12:00 to 12:30 noon. He was to receive pay only for hours actually worked. The rules of defendant provided that no employee, except in cases of sickness or emergency, should be absent from work without permission.

On the day prior to the general election of November 5, 1946, Grotemeyer, who was qualified to vote in that election, asked permission to absent himself for a period of four hours between the beginning and end of his scheduled work day 'to do campaigning, to vote and to get out the vote'. This specific request was refused, but defendant on that day posted on its bulletin board a notice permitting all employees on the day shift (including Grotemeyer) to take time off to vote at 3:00 p. m., on November 5th. This was one and one-half hours earlier than Grotemeyer's work day normally would end, but it did permit him to absent himself from his employment for four consecutive hours between the opening and closing of the polls, which were 6:00 a. m. and 7:00 p. m. On November 5th, Grotemeyer absented himself from his employment at 3:00 p. m. and thereafter voted. He was paid by defendant only for those hours worked on November 5th, to-wit: six and one-half hours, or the time from 8:00 a. m. to 3:00 p. m., less the thirty minute lunch period.

One hundred fifty-eight of defendant's employees worked at an average hourly rate of $1.089 from 8:00 a. m. to 4:30 p. m.; fifty-eight employees worked at an average hourly rate of $1.03 from 7:0 a. m. to 3:30 p. m., and seven employees worked at an average hourly rate of $.8646 from 7:00 a. m. to 3:00 p. m. The total amount of wages paid all employees for not working, if all took four hours off from the scheduled work day to vote, would be $951.42, and four hours of production loss amounting to $7138.00 would have resulted. In April, 1949, there were 230,600 hourly-paid employees in the State of Missouri engaged in manufacturing industries and 729,600 employees in non-manufacturing industries, and the average hourly earnings of these employees in manufacturing industries was $1.302.

Defendant's first contention is that under the agreed statement of facts no violation of Section 11785 was shown. Its argument runs in this wise: 'It is not charged defendant threatened to discharge or did discharge Grotemeyer or subject him to any penalty or deduction of wages earned because of the exercise of the privilege of voting. Grotemeyer was paid the amount due him for the work he did for Day-Brite Lighting, Inc. He was not penalized for voting or for taking time off for voting.'

This contention is not sound. It is the clear intendment of the act that the employee shall be paid during his authorized absence as though he had worked. Otherwise, of course, there could be neither penalty nor deduction. It would be an imposibility for the two necessary elements of the offense, to-wit: absence from work and deduction of wages during such absence, ever to come into coexistence under defendant's contention. Regardless of the validity of the act on constitutional grounds, its meaning is clear and the deduction of one and one-half hours from Grotemeyer's wages was a violation of its terms.

The grounds on which defendant challenges the constitutionality of Section 11785 are: (1) violation of the due process clauses of the Constitution of the United States, as defined in Section 1 of the Fourteenth Amendment, and the Constitution of the State of Missour, as defined in Section 10 of Article I, Mo.R.S.A.; (2) denial of the equal protection of the laws to all persons within its jurisdiction, as defined in Section 1 of the Fourteenth Amendment of the Constitution of the United States and of Section 14 of Article I of the Constitution of Missouri; (3) impairment of the obligation of contracts as guaranteed by Section 10 of Article I of the Constitution of the United States and Section 13 of Article I of the Constitution of Missouri; and (4) violation of Section 28 of Article IV of the Constitution of Missouri of 1875, and of Section 23 of Article III of the Constitution of Missouri of 1945, which provide that no bill shall contain more than one subject, which shall be clearly expressed in its title. (There is another general claim of unconstitutionality which we consider inadequate and which is disposed of later herein.)

The state contends defendant has not properly raised the question of constitutionality. Each of these grounds, with the exception mentioned, was set forth with particularity in a timely motion to quash, the motion for new trial, and in defendant's brief. That is sufficient. Section 4125, Mo.R.S.A.; State v. Hammer, 333 Mo. 40, 61 S.W.2d 965, 966. Especially is this true where it is evident from the entire record that the only issue before either the trial court or this court, except that the facts did not support the verdict, was the constitutionality of that part of the section under which defendant was charged. City of St. Louis v. Friedman, 358 Mo. 681, 685, 216 S.W.2d 475, 477.

It is apparent that Section 11785 is violative of the due process clauses of both the Federal and State Constitutions unless its enactment is within the police power of the State.

The State has placed in its brief a tabulation of statutes dealing with the right of employees to absent themselves on election days. Sixteen states make it unlawful for the meployer to dock the employee's wages during such absence, to-wit: Arizona, California, Illinois, Indiana, Iowa, Kansas, Minnesota, Missouri, Nebraska, New Mexico, New York, Ohio, South Dakota, Texas, West Virginia and Wyoming. Colorado and Utah statutes provide that there shall be no dockage except when the employee is paid by the hour. Six states authorize absence of the employee on election days, with no provision for payment of wages. Illinois and Kentucky statutes relating to the same subject matter have been held unconstitutional. A New York statute has been held constitutional.

Defendant strongly relies upon the case of People v. Chicago, Milwaukee & St. Paul Railway Co., 306 Ill. 486, 138 N.E. 155, 28 A.L.R. 610. It held unconstitutional a statute similar to Section 11785 on grounds that it deprived the employer of its property without due process of law, denied equal protection of the laws and was an unreasonable abridgment of the right to contract. That opinion was written in 1923. It is interesting to note that in 1944, the same court, referring to its 1923 opinion, commented: 'It is urged that the State may not take private property nor money for a private use * * *; and the case of People v. Chicago, M. & St. P. R. Co., 306 Ill. 486, 138 N.E. 155, 158, 28 A.L.R. 610,...