State v. Lange Canning Co.

• Decision Date: 02 May 1916
• Citation: 157 N.W. 777,164 Wis. 228
• Parties: STATE v. LANGE CANNING CO.
• Court: Wisconsin Supreme Court

164 Wis. 228

157 N.W. 777

STATE

v.LANGE CANNING CO.^a1

Supreme Court of Wisconsin.

May 2, 1916.

Appeal from Circuit Court, Eau Claire County; James Wickham, Judge.

Action by the State of Wisconsin against the Lange Canning Company. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed, and cause remanded for further proceedings.

Action to recover forfeiture for violations of St. 1915, § 1728--2, regulating hours of employment of women. The complaint sets forth 30 causes of action, in each of which continuous employment of a woman by the defendant in a pea-canning factory at a gainful occupation for a continuous period of from 14 hours to 17 1/2 hours, exclusive of meal periods, part of which working period was before and part after 8 o'clock p. m., is charged. The statutory provisions material are as follows:

“Sec. 1728--2. No female shall be employed or be permitted to work in any place of employment or at any employment for such period or periods of time during any day, night or week, as shall be dangerous or prejudicial to the life, health, safety or welfare of such female. It shall be the duty of the Industrial Commission and it shall have power, jurisdiction and authority to investigate, ascertain, determine and fix such reasonable classification, and to issue general or special orders fixing a period or periods of time, or hours of beginning and ending work during any day, night or week, which shall be necessary to protect the life, health, safety or welfare of any female, or to carry out the purposes of sections 1728--1 to 1728--4, inclusive, of the Statutes. Such investigations, classifications and orders, and any action, proceeding, or suit to set aside, vacate or amend any such order of said commission, or to enjoin the enforcement thereof, shall be made pursuant to the proceeding in sections 2394--41 to 2394--70, inclusive, of the Statutes, which are hereby made a part hereof, so far as not inconsistent with the provisions of sections 1728--1, 1728--2, 1728--3, and 1728--4 of the Statutes, and every order of the said commission shall have the same force and effect as the orders issued pursuant to said sections 2394--41 to 2394--70, inclusive, of the Statutes, and the penalties therein shall apply to and be imposed for any violation of sections 1728--1, 1728--2, 1728--3 and 1728--4 of the Statutes. Until such time as the Industrial Commission shall so investigate, ascertain, determine and fix, and shall issue general or special orders thereon, the periods of time specified in the attached schedule shall be deemed to be dangerous or prejudicial to the life, health, safety or welfare of females.

Schedule.

At day work, more than ten hours in any one day, or more than fifty-five hours in any one week.

At night work, more than eight hours in any one night, or more than forty-eight hours in any one week.

Day work is work done between six o'clock a. m. and eight o'clock p. m. of the same day: Provided that employment not more than one night in the week after eight o'clock p. m. shall not be considered night work.

Night work is work done between eight o'clock p. m. and six o'clock a. m. of the following day.

Less than one hour during each day or night for dinner or other meals.”

Subdivisions 1 and 2 of section 1728--1 are as follows:

“(1) The term ‘place of employment’ shall mean and include any manufactory, mechanical or mercantile establishment, laundry, restaurant, confectionary store, or telegraph or telephone office or exchange, or any express or transportation establishment.

(2) The term ‘employment’ shall mean and include any trade, occupation or process of manufacture, or any method of carrying on such trade or occupation in which any female may be engaged, or for any place of employment, as herein defined.”

Omitting the formal allegations of the first cause of action, the material part thereof is as follows:

“That on the 26th and 27th days of July, 1915, the defendant employed, permitted, and suffered to work in said canning factory at a gainful occupation, i. e., doing work and labor connected with the preserving and canning of peas and incident thereto, for hire or wages, for a continuous period of 14 hours, exclusive of meal periods, one Mrs. J. Bauers, a woman, as follows: From 9:30 a. m. to 12 m. on July 26th, and from 1 p. m. July 26th to 12:30 a. m. July 27th, contrary to the provisions of section 1728--2 of the Wisconsin Statutes.”

The other causes of action are the same excepting as to persons and time of employment. The defendant demurred to the complaint and the demurrer was sustained on the theory that the period of work described in the complaint, a part being before 8 o'clock p. m., and a part after that hour, is not defined in the statute as either night work or day work, that the statute should be construed as prohibiting the employment of women more than 10 hours in any one day at day work, as defined, and more than 8 hours in any one night at night work, but that no limitation as to time is declared by the statute when part of the work is performed before 8 o'clock p. m. and part of the work is performed after that hour in any one calendar day. From the order sustaining the demurrer, the state brings this appeal.W. C. Owen, Atty. Gen., J. F. Baker, Asst. Atty. Gen., and Fred Arnold, Dist. Atty., of Eau Claire, for the State.

Sturdevant & Farr, of Eau Claire, for respondent.

ROSENBERRY, J. (after stating the facts as above).

Three questions are presented for determination upon this appeal:

(1) Does the statute limit the number of hours women may be employed in any one calendar day where the work is done partly before and partly after 8 o'clock p. m. of that day?

(2) Is the statute void for the reason that it unlawfully delegates legislative power to the Industrial Commission?

(3) If it is held that the provision delegating certain powers to the Industrial Commission is unconstitutional and therefore void, can the remainder of the act stand as a valid enactment?

[1] It seems to us clear that the Legislature intended to fix as the maximum period of time during which a female might work in any one day at 10 hours and in any one week at 55 hours. The statute specifically provides that, where all of the work is done between the hours of 8 o'clock p. m. on one day and 6 o'clock a. m. of the following day, it shall be denominated night work, and shall not exceed 8 hours. The Legislature has not stated in express terms what the limitation should be where the work is performed partly before 8 o'clock p. m. and partly thereafter in the same day. Had this matter been brought to its attention, it might have prescribed a still different limitation, but, having failed to make such specific limitation, there is no doubt in our minds that the limitation as to the amount of work which may be done in any one day, meaning thereby the period from midnight to midnight, is limited to 10 hours. The complaint therefore states a cause of action.

So construed, the law is reasonable, and the intent of the Legislature is given effect. Construed in accordance with the contention of the defendant, it would permit a female to work 14 or more hours in one calendar day. Such a construction would be subversive of the purpose of the law, and would lead to the absurd result of permitting women to work more hours per day when the service is rendered partly in the nighttime than would be permitted if the work were all done in the daytime, and that in the face of a declaration by the Legislature that night work is more detrimental to the health of women than day work. Such a construction should be avoided. State ex rel. Husting v. Board of State Canvassers, 159 Wis. 216, 150 N. W. 542.

[2][3] 2. Is the law void in so far as it attempts to delegate to the Industrial Commission power to “investigate, ascertain, determine and fix such reasonable classification, and to issue general or special orders fixing a period or periods of time, or hours of beginning and ending work during any day, night or week, which shall be necessary to protect the life, health, safety or welfare of any female, or to carry out the purposes of sections 1728--1 to 1728--4, inclusive, of the Statutes”?

It has been said by Chief Justice John Marshall that:

“The question whether a law be void for its repugnancy to the Constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.” Fletcher v. Peck, 10 U. S. (6 Cranch) 87, 128, 3 L. Ed. 162.

This principle, enunciated early in the development of the constitutional law of this country, has been repeatedly recognized, affirmed, and acted upon by this court. State ex rel. Zillmer v. Kreutzberg, 114 Wis. 530, 549, 90 N. W. 1098, 58 L. R. A. 748, 91 Am. St. Rep. 934;State ex rel. Hessey v. Daniels, 143 Wis. 649, 653, 128 N. W. 565;State v. Redmon, 134 Wis. 89, 112, 114 N. W. 137, 14 L. R. A. (N. S.) 229, 126 Am. St. Rep. 1003, 15 Ann. Cas. 408. We approach this question with a full appreciation of the duties, responsibilities, and obligations of the court in the premises.

“The legislative power shall be vested in a senate and assembly.” Article 4, § 1, Const.

It is a principle of elementary law that:

“Under our constitutional form of government the Legislature cannot delegate legislative powers to any officer or to any body of persons, individual or corporate, aside from the power to confer...