State v. Day-Brite Lighting

• Decision Date: 17 May 1949
• Docket Number: 27658
• Citation: 220 S.W.2d 782
• Parties: STATE v. DAY-BRITE LIGHTING, Inc
• Court: Missouri Court of Appeals

220 S.W.2d 782

STATE v. DAY-BRITE LIGHTING, Inc

No. 27658

Court of Appeals of Missouri, St. Louis

May 17, 1949

'Not to be reported in State Reports.'

J. E Taylor, Atty. Gen., John R. Baty, Asst. Atty. Gen., for plaintiff-appellant.

Louis J. Portner, St. Louis, Cobbs, Logan, Roos & Armstrong, St Louis, George B. Logan, St. Louis, Henry C. M. Lamkin, St Louis, for defendant-appellant.

OPINION

HUGHES

There being a separate appeal by each party, in order to avoid confusion the plaintiff below will be referred to as the State, and the defendant below as the defendant.

On the 24th day of June, 1947, the associate prosecuting attorney filed an information in the St. Louis Court of Criminal Correction, containing two counts, charging the defendant with having violated the provisions of Section 11785, R.S.Mo. 1939, Mo.R.S.A. § 11785. The first count charged that the defendant, on November 5, 1946, an election day, failed and refused to allow Fred C. Grotemeyer, one of its employees, who was entitled to vote at the election, to absent himself from his employment for a period of four hours between the times of the opening and closing of the polls. The second count charged the defendant with having penalized said employee by deducting from his wages the amount of his earnings for the time he was absent from his work in the exercise of his privilege of being absent therefrom for a period of four hours to vote at said election.

Thereafter, the court overruled defendant's motion to quash the first count of the information, and sustained defendant's motion to quash the second count. From the judgment quashing the second count the State has appealed. The defendant was tried on the first count, a jury being waived, and was convicted and its punishment fixed at a fine of $ 100. From the judgment of conviction on the first count the defendant appeals.

The prosecution, as above stated, is under Section 11785, R.S.Mo. 1939, Mo.R.S.A. § 11785, which is as follows: '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, and on conviction thereof be fined in any sum not exceeding five hundred dollars.'

The facts are not disputed and are as follows:

The defendant is the employer of about 200 workmen, who were divided into shifts or groups, as to their working hours. Fred Grotemeyer, who had been in the employ of defendant for about five years, worked on a shift which began work at 8:00 o'clock a. m. and worked until 4:30 o'clock p. m. with one-half hour off during the noon hour for lunch. His wages were $ 1.60 per hour. The day before the election held on November 5, 1946, the defendant caused to be placed on a bulletin board maintained for the purpose of official notices to its employees a notice as follows: 'Day-Brite Lighting Inc. 5411 Bulwer Avenue, St. Louis, Missouri. November 4th, 1946. Employees on day shift only wishing to take time off for voting November 5th may do so by leaving work at three p. m. Day-Brite Lighting, Inc.'

On November 4th Grotemeyer saw Mr. Wilks, who was defendant's plant superintendent, and asked him, 'How about getting off at noontime according to the law, with pay, four hours from work?' and Mr. Wilks told him 'no.' The next morning (election day) Grotemeyer again saw Wilks, and the following question and answer appear in the transcript: 'Q. What conversation did you have with him, if any, pertaining to this bulletin you saw displayed? A. I asked him about the bulletin board. I told him -- let me phrase myself right here. According to law we should have four hours off from work with pay. He says no. He says it is on the bulletin board. You can get off at three o'clock but you will not be paid for that hour and a half.'

Grotemeyer testified that it would take him about twenty minutes to go from his working place to his home, and that his polling place was within 200 feet of his home. That on November 5, 1946, he voted about 5:00 o'clock in the afternoon, and it took him about five minutes to vote. He said that he wanted time off from the noon hour on in order to do a little campaigning, canvass to get out the vote.

There was evidence that fifty years ago, about the time of the enactment of Section 11785 (Laws 1897, p. 108), the working day was at least ten hours, and the average was fourteen to sixteen hours, and that today eight hours is the average working day.

The working contracts between the defendant and the labor union to which Grotemeyer belonged show that wages were paid the employees on an hourly rate; that the work consisted of forty hours of five eight-hour days, from Monday to Friday, both inclusive, and that the employees contracted to be on the job ready to work at the starting time and to be at work until quitting time (except on specified holidays and vacation periods, concerning which there is no issue in this case).

Both appeals in the case were taken to the Supreme Court, where the briefs were filed, and the Supreme Court made an order as follows: 'Now at this day it appearing to the satisfaction of the Court that there is no constitutional question in a jurisdictional sense presented in the above-entitled cause, the Court doth order that said cause be and the same is hereby transferred to the St. Louis Court of Appeals.'

If the Legislature or the courts in construing legislative acts were required to draw distinctions with hair-like accuracy as to what would constitute taking property without due process of law, there are few laws looking to the health and safety and working conditions of employees which would not come under the constitutional inhibition. It cannot be said that a constitutional question is involved in a jurisdictional sense as to the legislative right to adopt reasonable regulations for the operation of corporations, which are themselves creatures of statutes, and which regulations might place an inconsequential burden on the corporation. In the case of Noble State Bank v. Haskell, 219 U.S. 104, 31 S.Ct. 186, 55 L.Ed. 112, 32 L.R.A., N.S., 1062, Ann.Cas.1912A, 487, the question involved was whether an assessment against banks for the purpose of creating a Depositors' Guaranty Fund came within the inhibition of the due process clause of the Federal Constitution, Amend. 14, and the Court said, 219 U.S. 110, 111, 31 S.Ct. 187, 55 L.Ed. 112, 32 L.R.A., N.S., 1062, Ann.Cas., 1912A, 487:

'In answering that question, we must be cautious about pressing the broad words of the 14th Amendment to a drily logical extreme. Many laws which it would be vain to ask the court to overthrow could be shown, easily enough, to transgress a scholastic interpretation of one or another of the great guaranties in the Bill of Rights. They more or less limit the liberty of the individual, or they diminish property to a certain extent. We have few scientifically certain criteria of legislation, and as it often is difficult to mark the line where what is called the police power of the States is limited by the Constitution of the United States, judges should be slow to read into the latter a nolumus matare as against the lawmaking power.

'The substance of the plaintiff's argument is that the assessment takes private property for private use without compensation. And while we should assume that the plaintiff would retain a reversionary interest in its contribution to the fund, so as to be entitled to a return of what remained of it if the purpose were given up (see Receiver of Danby Bank v. State Treasurer, ...