State v. Dominion Hotel, Inc.

• Decision Date: 18 September 1915
• Docket Number: Criminal 369
• Citation: 151 P. 958,17 Ariz. 267
• Parties: STATE, Appellant, v. DOMINION HOTEL, INC., Respondent
• Court: Arizona Supreme Court

151 P. 958

17 Ariz. 267

STATE, Appellant, v. DOMINION HOTEL, INC., Respondent

Criminal No. 369

Supreme Court of Arizona

September 18, 1915

APPEAL from a judgment of the Superior Court of the County of Gila. G. W. Shute, Judge. Reversed and remanded, with instructions to overrule demurrer.

Mr Wiley E. Jones, Attorney General, Mr. Leslie C. Hardy and Mr Geo. W. Harben, Assistant Attorneys General, and Mr. Norman J. Johnson, County Attorney, for the State.

Miss Alice M. Birdsall (Messrs. Alderman & Elliott, of Counsel) for Respondent.

OPINION

CUNNINGHAM, J.

The respondent, Dominion Hotel, Incorporated, was charged with the commission of an offense defined by paragraph 717 of the Penal Code of Arizona of 1913. Said paragraph is as follows:

"No female shall be employed or be permitted to work in any mercantile establishment, confectionery store, bakery, laundry, hotel, restaurant, or telephone or telegraph office or exchange, in this state, more than eight hours during any one day or more than fifty-six hours during any one week: Provided, that at least one hour for meals be allowed each female during her working period, but no part of such hour for meals shall be included as a part of the permitted working period: Provided further, that the said eight hour period of work shall be performed within a period of twelve hours, the period of twelve hours during which such labor must be performed not to be applicable to railroad restaurants or eating-houses located upon railroad rights of way and operated by or under contract with any railroad company: And provided further, that in any such mercantile establishment, confectionery store, or bakery, where females are employed for six days only in any one week, two additional hours (making a total working period of ten hours) may be added to said permitted period of daily labor on one of said six working days, but in all cases the permitted period of daily labor must be performed within said period of twelve hours: And provided further, that the provisions of this section shall not apply to females employed in any such telephone or telegraph office or exchange in which not more than three females are employed or to female nurses."

Paragraph 720, Id., declares a violation of paragraph 717, supra, a misdemeanor and prescribes the punishment.

The defendant (respondent), having waived a preliminary examination, was held to answer the charge before the superior court of Gila county. In due time the county attorney of that county filed an information, which, omitting the formal language, charges the offense as follows:

"That the Dominion Hotel, Incorporated, is a corporation organized, existing, and doing business under and by virtue of the laws of the state of Arizona, and the said corporation is and heretofore has been, and was upon the second (2d) day of March, A.D. 1914, engaged in the hotel business in Globe, Gila county, state of Arizona, and did then and there run and operate the Dominion Hotel, that said corporation did upon the second (2d) day of March, A.D. 1914, unlawfully permit one Ada Tessmer, a female person, to be employed by it in said hotel and work eight (8) hours, and that said eight (8) hours of work was not then and there performed within a period of twelve (12) hours, and the said Dominion Hotel, Incorporated, not being then and there engaged in the business of conducting a railroad restaurant or eating-house located upon a railroad right of way, or operated by, or under contract, with any railroad company contrary," etc.

To this information the defendant (respondent) interposed a demurrer "upon the ground that it appears upon the face of said information that it fails to state facts sufficient to constitute a crime or a public offense under the laws of Arizona, or at all." The demurrer was sustained and the cause dismissed. From which order and judgment the state appeals.

The respondent, in support of the ruling and judgment, contends that the statute, paragraph 717, supra, defining the offense set forth in the information, violates the fourteenth amendment of the federal Constitution, and sections 4 and 13 of article 2 of the state Constitution. The offense charged and defined by the statute is that the defendant permitted Ada Tessmer, a female employee, to be employed about the operation of its business at a time not within the permitted hours of her employment; that is, defendant permitted said female employee to work a part of 8 hours in performing a day's work after a period of 12 hours elapsed from the time of the commencement of such day's work. The demurrer admits, for all of its purposes and of this appeal, that respondent, in the operation of its hotel, did permit Ada Tessmer, a female then in its service, to be employed at a time not within the permitted hours of her employment. These facts admitted the commission of the offense defined in the statute, and it is liable to the punishment prescribed, unless the statute is a nullity.

The respondent contends that the statute is inoperative, because by its terms hotels of the class to which it belongs are not granted equal protection with restaurants or eating-houses on railroad rights of way operated by a railroad company or under contract with the railroad company, that restaurants and eating-houses coming within the exception of the statute are granted rights not granted to hotels conducting eating departments such as respondent, and hence respondent is unjustly discriminated against and denied the equal protection of the law. Counsel assume that Ada Tessmer was employed as a waitress in respondent's dining-room department. The statute limits the daily working period of female employees of all hotels and of all restaurants and eating-houses and of all other designated occupations to 8 hours as one day, with minor exceptions not urged in this case. The permitted working period is determined in all occupations affected by paragraph 719 of said statute, providing: "Every employer shall post in a conspicuous place in every room where such females are employed, a printed notice stating the hours of commencing and stopping such work, the time allowed for dinner or other meals, and the maximum number of hours any female employee is permitted to work in any one day," thereby requiring all hotels, restaurants and eating-houses, without exception, in the respect under consideration, to define by a printed notice the permitted working hours of female employees. Such permitted working hours must be designated in such notice, so as to show the time of actual employment within the limits of the period of commencement of the employment and its end, so that in the aggregate the time the female employee is required to be employed in the performance of her duty does not exceed 8 hours. Therefore the actual daily working period of female employees in the occupations mentioned in the statute is 8 hours in any one day; and the permitted working period of such employees in such occupation is that period of time limited by the printed and posted notice required by paragraph 719 of said statute. All hotels, restaurants and eating-houses, without exception, are required to post the printed notice defining the daily permitted working period of their female employees, and any hotel, restaurant or eating-house, without exception, permitting its female employees to be employed at a time other than the actual daily working period as defined by the said notice, is declared to be guilty of the offense defined.

Paragraph 718 of the statute provides: "The employment of any female in any place or establishment defined in the preceding section, at any time other than those of the posted hours of labor, as herein provided for, shall be prima facie evidence of a violation of this act [section 717]" clearly showing that it was the intention of the legislature to declare as a public offense the employment of female employees at times other than during the posted hours for employment. Such are clearly the conditions essential to the public offense defined by the statute, of which respondent stands charged on the face of the information.

The exception of which respondent complains as depriving it of the equal protection of the law, in violation of the fourteenth amendment of the federal Constitution and in violation of section 4 of article 2 of the state Constitution, reads as follows:

"Provided further, that the said eight hour period of work shall be performed within a period of twelve hours, the period of twelve hours during which such labor must be performed not to be applicable to railroad restaurants or eating-houses located upon railroad rights of way and operated by or under contract with any railroad company."

Respondent's contention, as stated in the brief, is this:

"That in providing that the 8-hour working period prescribed for females in certain designated occupations must not extend over a period of more than 12 hours the legislature has made such an unreasonable, unwarranted, and arbitrary regulation of the working hours of women as to be entirely without justification, even under the guise of an attempted exercise of so-called 'police powers.'"

As we have seen above, the actual daily working hours for female employees are defined and fixed, not by the statute, but by the employer in the printed and posted notice. The actual daily working hours of such employees must be so defined and fixed by all employers engaged in the designated occupations without exception; consequently it is clear that the exception complained of affects the notice required to be posted, as it concerns the contents of such notice. The notice printed and posted by the occupations not falling within the exception must fix the...