State v. A. H. Read Co.
Decision Date | 22 October 1925 |
Docket Number | 1263 |
Citation | 240 P. 208,33 Wyo. 387 |
Parties | STATE v. A. H. READ CO. [*] |
Court | Wyoming Supreme Court |
On reserved questions from District Court of Laramie County WILLIAM A. RINER, Judge.
The A H. Read Company was charged with the violation of the eight hour labor law, relating to public works. The cause was submitted on reserved constitutional questions from District Court. Questions answered.
David J. Howell, Attorney General, for plaintiff.
Sections 3408-3409 C. S. regulating hours of labor on public works finds support in Art. 19, Section 1 of the State Constitution. Some conflict of opinion as to the validity of the statute regulating hours of labor on public works is presented by the authorities, but the trend of modern opinion seems to support statutes of this character. New York had formerly held laws of this kind unconstitutional, but subsequent to an amendment of its constitution the case of People ex rel. Metz was decided and practically all of the cases upon this subject are there referred to in the briefs or in the opinion upholding the principle of regulation thereafter the case of Atkins vs. Kansas was decided by the Sup. Court of that State upholding a similar statute, and this case was reviewed by the U. S. Supreme Court on appeal and affirmed; Atkins vs. Kansas, 191 U. S. Rep. 207; that case involved a paving contract based upon a street improvement statute similar to our statute, and it was held that it was public work within the meaning of the Kansas Law regulating hours of labor on public works. This case has been generally followed and apparently marks the turning point in the conflict of authorities respecting the validity of laws of this kind; In Re Broad 36 Wash. 449; 70 L. R. A 1011. Reference has been made to the insufficiency of the information, but it is probable that the technical defects, if any, in the charging part of the information, cannot be considered on reserved questions. Defendant's brief contains a fair discussion of the authorities holding against its contentions and it seems unnecessary to again cite them here. Plaintiff feels that in the light of the modern trend of protection of labor, its working hours and rights, it may be said that legislation of this character is being upheld almost without exception.
William E. Mullen for Defendant.
The statute 4308 and 4309 C. S. seems to be a fragmentary part of a statute borrowed from some other state. For example, the State of Ohio has a statute almost identical in language, but containing additional provisions, defining acts which constitute a violation of the statute, and to which the penalty applies; 94 Ohio Laws 357; Cleveland vs. Clements Co., 67 O. S. 197, 59 L. R. A. 775, 65 N.E. 885. Our statute fails to prescribe the elements of an offense, or define acts constituting its violation. Penal statutes are not to be enlarged by implication; City of Shawnee vs. Landon, 3 Okla. 440, 106 P. 652; State vs. Fontenat, 112 La. 628, 36 So. 630; U. S. vs. Wiltberger, 5 Wheat 76, 5 L. ed. 37; Pentlarge vs. Kirby, 19 F. 501; People vs. Friedman, 142 N.Y.S. 367; People vs. Lopez, 23 P. 106. Section 4308 C. S. merely prescribes a standard of hours, as constituting a day's work for certain classes of persons employed on public works, but does not define a penal offense. Prosecutions brought under it do not therefore constitute due process of law, the meaning of which is well understood; McGarvey vs. Swan, 17 Wyo. 120; due process of law in a criminal case, requires a sufficient information, under a valid statute; Koppala and Lampe vs. State, 15 Wyo. 419; 12 C. J. 1189-1193. Due process of law, requires a law creating or defining an offense and failing in that, is void for want of due process of law; Inter. Harv. Co. vs. Kentucky, 234 U.S. 216, 58 L. ed. 1284; Collins vs. Ky., 234 U.S. 634, 58 L. ed. 1510; Malone vs. Ky., 234 U.S. 639, 58 L. ed. 1512; American Seeding Machine Co. vs. Ky., 236 U.S. 660, 59 L. ed. 773; First Nat'l Bank vs. U. S. 206 F. 374, 46 L. R. A. (NS) 1139; (8th Cir.); People vs. Salomon, 212 N.Y. 446, 106 N.E. 111; People vs. Co., 144 N.Y.S. 707; the statute must so clearly define acts on which the penalty is denounced, that no ordinary person can fail to understand his duty; Brown vs. State, 137 Wis. 343, 119 N.W. 338; without a definition there can be no offense; Hackney vs. State, 8 Ind. 494; Czarra vs. Board, 25 App. D. C. 443; the City of Cheyenne is a body corporate 1623 C. S. but not subject to imprisonment, as is also each county and school district in the State; 1300, 2237 C. S. It is therefore impossible to impose a uniform penalty; the right to follow any lawful vocation and make a contract is a constitutional right; State vs. City of Sheridan, 25 Wyo. 359; it is doubtful whether street improvement work under the authority of Chapter 129 C. S. 1920 is public work. There is a distinction between the power delegated to municipalities of a sovereign character, and that other power exercised by corporations to carry on public improvement, supply water, light or other functions for the benefit of its inhabitants generally regarded as proprietary acts; Western College vs. Cleveland, 12 O. S. 375; Cinti. vs. Cameron, 330 O. S. 366; Cleveland vs. Clements, 67 O. S. 197, 65 N.E. 885; Com. vs. Casey, 231 Pa. 170; 80 A. 78, 34 L. R. A. (NS) 767; O'Rourke vs. Sioux Falls, 4 S.D. 47, 54 N.W. 1044, 19 L. R. A. 789; with respect to property and contract rights of local concerns, the State will not interfere; People vs. Coler, 166 N.Y. 13, 59 N.E. 716; Lexington vs. Thompson, 24 Ky. L. R. 384, 68 S.W. 477; this statute is not based upon any principle of police power; Loehner vs. New York, (U. S.) 49 L. ed. 937; the above action included the more or less noteworthy controversy restricting the employment of bakers to 60 hours per week and ten hours a day. We concede the existence of a rule authorizing the regulation of labor upon public works. It is recognized by our own constitution, Art. 19, Section 1. The Constitution employs the term "actual work," but the statute in question employs the term "time of service." The terms import a distinction of meaning. The New York court has denied the power of the Legislature to regulate the hours of labor on public work; People vs. Orange Co., 175 N.Y. 84, 67 N.E. 129; the principle was followed in the City of Seattle vs. Smyth (Wash.) 60 P. 1120; however since the Kansas case of Atkins vs. Kansas, which was reviewed and affirmed by the U. S. S.Ct. in 191 U.S. 207, 48 L. ed. 148, the right to regulate the hours of work has been generally recognized; Opinions of the Justices, 208 Mass. 619, 94 N.E. 1044; In Re Broad, 36 Wash. 449, 70 L. R. A. 1011, and since the amendment of the New York Constitution the case of People vs. Orange Company has not been followed in that state; People vs. Metz, 193 N.Y. 148, 85 N.E. 1070; a different rule obtains in Illinois; Fiske vs. People, 186 Ill. 206, 52 L. R. A. 291; the Montana court has sustained statute similar to the one here in question, but it seems to be out of harmony with the settled weight of authority requiring a statute to define acts constituting a violation of law; State vs. Livingston Company, 34 Mont. 570; 87 P. 980. The result in that case seems to be predicated upon the idea that the intention of the Legislature might be inferred. We submit that the questions numbered 1 to 5 should be answered in the affirmative, and reserved question numbered 6 should be answered in the negative.
Upon the hearing of a demurrer to the information the district court, of its own motion, entered an order reciting that there is involved in the cause, by reason of said demurrer, "important and difficult constitutional questions, a decision of which is necessary in said cause," and directing that said questions be reserved to this court for its decision thereon. The reserved questions stated substantially as in the order are:
1. Is the statute (L. 1913, Ch. 90, Secs. 4308 and 4309, Comp. Stat. 1920) in conflict with Sec. 6 of Art. I of the Constitution of this state, providing that no person shall be deprived of life, liberty or property without due process of law?
2. Is the statute in conflict with Article V of the Constitution of the United States, making a like provision?
3. Is the statute in conflict with Sec. 1, Art. XIV of the Constitution of the United States, providing that no state shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws?
4. Is the statute in conflict with Sec. 22 of Art. 1 of the State Constitution, requiring that the rights of labor shall have just protection through laws...
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