State v. J. B. & R. E. Walker, Inc.

• Decision Date: 10 September 1941
• Docket Number: 6179
• Citation: 100 Utah 523,116 P.2d 766
• Parties: STATE v. J. B. & R. E. WALKER, Inc., et al
• Court: Utah Supreme Court

116 P.2d 766

100 Utah 523

STATE v. J. B. & R. E. WALKER, Inc., et al

No. 6179

Supreme Court of Utah

September 10, 1941

Appeal from District Court, Third District, Salt Lake County Clarence E. Baker, Judge.

J. B. &amp R. E. Walker, Inc., R. E. Walker, and others were indicted for, and R. E. Walker was convicted of, failing to pay wages and he appeals.

Affirmed.

Irvine, Skeen & Thurman, of Salt Lake City, for appellant.

Grover A. Giles, Atty. Gen., and Zelph S. Calder and Zar E. Hayes, Asst. Attys. Gen., for respondent.

McDONOUGH, Justice. WOLFE and LARSON, JJ., concur. MOFFAT, C. J., and PRATT, J., dissent.

OPINION

McDONOUGH, Justice.

Appellant, R. E. Walker, was found guilty in the district court of the crime of failing to pay wages, in violation of Section 12, Chapter 60, Laws of Utah 1937. The complaint charged the violation of that portion of said Section 12 which provides that

"any employer who, shall refuse to pay the wages due and payable when demanded, as in this act provided, or who shall falsely deny the amount thereof, or that the same is due, with intent to secure for himself, or any other person, any discount upon such indebtedness, with intent to annoy, harass, oppress, hinder, delay or defraud, the person to whom such indebtedness is due, * * * shall in addition to any other penalty imposed upon him by this act, be guilty of a misdemeanor, punishable by a fine of not less than $ 50 and not exceeding $ 100." Subd. c.

The act requires payment of wages to employees semi-monthly, in lawful money of the United States, except where an employee is hired on a yearly salary basis, in which case payment may be made monthly; and, in effect, requires on demand immediate payment of wages upon discharge or resignation of an employee.

Section 4 of Chapter 60, supra, provides:

"None of the provisions of this act shall apply to employers or employees engaged in farm, dairy, agricultural, viticultural or horticultural pursuits or to banks and mercantile houses, or to stock or poultry raising or to household domestic service."

This appeal was taken from a judgment, made and entered pursuant to a verdict of guilty, on the sole ground that the law upon which the conviction was based is unconstitutional in that by virtue of the exclusion provisions of Section 4, just quoted, the legislature enacted a special law which denies to appellant the equal protection of the law in violation of both the Constitution of this state and the Constitution of the United States.

Appellants main contention centers around that part of Section 4 which excludes from the operation of the act "banks and mercantile houses," it apparently being conceded that the exclusion of agricultural and domestic employment from the operation of labor laws generally has been upheld almost uniformly. The question is, therefore, narrowed to whether the exclusion of "banks and mercantile houses" does constitute the act discriminatory class legislation.

Although many states have passed legislation with respect to the payment of wages, our statute appears to be unique in expressly excluding from the operation thereof "banks and mercantile houses." Nor does the history of the enactment of the legislation reveal definitely just why such exclusion was made.

The original statute in this state on payment of wages was enacted in 1919, Laws of Utah 1919, Chapter 71. The bill as introduced, Senate Bill 61, did not contain the phrase "banks and mercantile houses" in the excluding provision of the act. However, that phrase was inserted as an amendment from the floor of the Senate before the bill was passed. And an additional excluding phrase was also added immediately following "banks and mercantile houses," to wit:

"Or other employment where an agreement exists between an employer and employee providing for different terms of pay."

The statute, as passed, continued until the Revised Statutes of Utah 1933 were enacted. At that time the phraseology of the including section of the statute was changed slightly to read as follows (Section 49-9-8, R. S. U. 1933):

"None of the provisions of this chapter shall apply to the state, or to any county, incorporated city or town, or other political subdivision, or to employers and employees engaged in farm, dairy, agricultural, viticultural or horticultural pursuits, or to banks and mercantile houses, or to stock or poultry raising, or to household domestic service, or to any other employment, where an agreement exists between employer and employee providing for different terms of payment."

This statute continued in force until the enactment of the law under consideration in 1937.

This 1937 statute did not have any "excluding" provision as it was originally introduced and passed by the House (House Bill 11). The Senate, however, made certain amendments relative to the application of the bill to certain types of labor. An amendment was made first excluding from the operation of the bill "employees of the federal or state government or any political subdivision of the state government." Then was added the words "nor to any of the following businesses and industries, agriculture, livestock and mercantile." This latter phrase was immediately amended by striking the words "and mercantile."

The House refused to concur in the various amendments made by the Senate and it became necessary for the legislature to appoint three Conference Committees before an agreement could be reached with respect to the exclusion feature of the bill. As finally accepted the bill contained practically the same exclusion clause as did the old statute, except that the phrase "or to any other employment, where an agreement exists between employer and employee providing for different terms of payment," was omitted, as also was any reference to the state or its political subdivisions, the act being limited to private employments.

We discover, then nothing in the history of the legislation, nor in the proceedings relative to its enactment, which casts any light on the reason for excluding mercantile houses from its operation; though they do reveal that so excluding them was a matter giving rise to differences of opinion, if not of recorded debate.

Appellant's contention as noted is the exclusion of "banks and mercantile houses" renders the statute unconstitutional as discriminatory class legislation. Cases in support of such contention are cited: An Illinois statute was declared unconstitutional as class legislation in Braceville Coal Co. V. People, 147 Ill. 66, 35 N.E. 62, 22 L.R.A. 340, 37 Am. St. Rep. 206. The statute there applied to every "manufacturing, mining, quarrying, lumbering, mercantile, street, electric and elevated railway, steamboat, telegraph, telephone and municipal corporation and every incorporated express company and water company." Act April 23, 1891. It was held invalid because it did not apply "to all corporations existing within the state" but excluded several without any apparent reasonable basis. In Indiana several statutes relating to payment of wages have been held unconstitutional: Dixon V. Poe, 159 Ind. 492, 65 N.E. 518, 60 L.R.A. 308, 95 Am. St. Rep. 309 (the act invalidated applying only to merchants and laborers in coal mines); Toledo, St. L. & W. R. Co. V. Long, 169 Ind. 316, 82 N.E. 757, 758, 124 Am. St. Rep. 226 (where the statute applied to every "company, corporation or association" and required only that such businesses pay "employees, engaged in manual or mechanical labor" at least once a month); Smith V. Ohio Oil Co., 43 Ind.App. 735, 86 N.E. 1027, affirming the position taken in Toledo, St. L. & W. R. Co. V. Long, supra; State V. Martin, 193 Ind. 120, 139 N.E. 282, 26 A. L. R. 1386 (in which the penalty provision was held to render the statute unconstitutional); and Superior Laundry Co. V. Rose, 193 Ind. 138, 137 N.E. 761, 1139 N.E. 142, 26 A. L. R. 1392 (where the court reviewed the several different statutes passed by the Indiana legislature and pointed out the classifications which rendered most of them unconstitutional).

In State V. Potomac Valley Coal Co., 116 Md. 380, 81 A. 686, a statute applying only to corporations engaged in mining coal or fire clay in Garrett County was held unconstitutional. In Sorenson V. Webb, 111 Miss. 87, 71 So. 273, one applying only to manufacturers and no other classes or individuals or corporations was likewise held unconstitutional. Anderson V. Uncle Sam Oil Co., 106 Kan. 483, 186 P. 198, involved a statute, held unconstitutional, which excluded steam surface railroads as well as corporations engaged in the production of farm and dairy products from its operation. With such exceptions, it applied to all corporations. The statute, however, made all corporations, with the exception noted, liable for a reasonable attorney's fee, when suit was successfully maintained under the act for the collection of wages. This view was affirmed in a later Kansas case, Livingston V. Susquehanna Oil Co., 113 Kan. 702, 216 P. 296. See, also, State V. Barba, 132 La. 768, 61 So. 784, 45 L.R.A., N.S., 546, Ann. Cas. 1914D, 1261; State V. LeBarron, 24 Wyo. 519, 162 P. 265, Ann. Cas. 1918D, 998.

On the other hand, are many cases upholding as constitutional various classifications in statutes requiring prompt payment of wages. In New York the statute provides a different time for payment of employees on steam surface railroads (twice a month) than for employees in most other corporations (once a week). This statute was upheld in New York Cent. & H. R. R. Co. V. Williams, 199 N.Y. 108, 92 N.E. 404, 409, 35 L.R.A., N.S., 549, the court stating:

"The discussion thus far has related to the contention of the appellant that the enactments in question deprive the parties of...