State v. Miksicek

• Citation: 125 S.W. 507,225 Mo. 561
• Parties: STATE v. MIKSICEK.
• Decision Date: 12 February 1910
• Court: United States State Supreme Court of Missouri

125 S.W. 507

225 Mo. 561

STATE v. MIKSICEK.

Supreme Court of Missouri, Division No. 2.

February 12, 1910.

1. CONSTITUTIONAL LAW (§ 89) — FREEDOM TO CONTRACT — EMPLOYMENT IN BAKERIES — "INTERFERENCE WITH FREEDOM TO CONTRACT."

The limitation of employment in bakeries, attempted by Rev. St. 1899, § 10,088 (Ann. St. 1906, p. 4600), fixing the number of days in a week employés shall work, and between what hours in certain cases, is an arbitrary "interference with freedom to contract" guaranteed by Const. U. S. Amend. 14, § 1, and by similar provisions in Const. Mo. art. 2, §§ 4, 30 (Ann. St. 1906, pp. 128, 166).

2. MASTER AND SERVANT (§ 13) — REGULATING HOURS OF SERVICE — POLICE POWER — EMPLOYMENT IN BAKERIES.

Such limitation cannot be sustained as a valid exercise of the police power to protect the public health, safety, morals, or general welfare.

3. COURTS (§ 97) — PREVIOUS DECISIONS AS CONTROLLING — UNITED STATES COURTS AS AUTHORITY IN STATE COURTS.

A case in the state Supreme Court being presented in a form of which the United States Supreme Court would have jurisdiction to decide a constitutional question raised therein, the principles announced by that court in a similar case furnish a rule to govern as well as to guide, and its decision must be treated as decisive of the proposition as applied to the subject in question.

4. EVIDENCE (§ 20) — JUDICIAL KNOWLEDGE — OCCUPATIONS.

It is common knowledge that in large cities pie and pastry bakeries are quite numerous, and have many persons in their employ.

5. STATUTES (§ 77) — "GENERAL LAW" — "SPECIAL LAWS."

A statute relating to persons and things as a class is a "general law," while one relating to particular persons or things of a class is a "special law."

6. CONSTITUTIONAL LAW (§ 208) — CLASS LEGISLATION — REGULATION OF BAKERIES.

Rev. St. 1899, § 10,089 (Ann. St. 1906, p. 4600), provides that all rooms or buildings occupied as biscuit, bread, or cake bakeries shall be drained and plumbed in a manner to conduce to the proper and healthful sanitary condition thereof, and constructed with air shafts, windows, or ventilating pipes sufficient to insure ventilation. Held, that as such section applied only to the bakeries named, and did not apply to those engaged in making pie and pastry, or crackers and confectioneries, as to which there was the same reason for keeping buildings and rooms occupied by that class of bakeries in a proper sanitary condition, it was invalid as a discrimination between persons belonging to the same class, forbidden by Const. art. 4, § 53 (Ann. St. 1906, p. 197).

7. CONSTITUTIONAL LAW (§ 240) — EQUAL PROTECTION OF THE LAWS.

It is also violative of Const. U. S. Amend. 14, in denying the equal protection of the law.

Appeal from St. Louis Court of Criminal Correction; Wilson A. Taylor, Judge.

Robert Miksicek was convicted of violations of Rev. St. 1899, §§ 10,088, 10,089 (Ann. St. 1906, p. 4600), relating to bakeries, and he appeals. Reversed, and defendant discharged.

The offenses of which the defendant was convicted are misdemeanors; however, the cause was properly sent to this court on the ground that certain constitutional questions are involved, which were properly raised and presented to the trial court.

On January 30, 1908, the assistant prosecuting attorney of the St. Louis Court of Criminal Correction filed in said court his second amended information in this cause. In the first count of said amended information the defendant is charged with the violation of section 10,088, Rev. St. 1899 (Ann. St. 1906, p. 4600), in that he suffered and permitted certain named employés to work in a cake and bread bakery and confectionery establishment belonging to defendant, and located at 2005 South Eleventh street, in the city of St. Louis, for more than six days during a period of one week, contrary to the provisions of said section of the statute. In the second count of said information defendant is charged with a violation of section 10,089, Rev. St. 1899, in that defendant owned and occupied a certain cake and bread bakery, located at 2005 South Eleventh street in the city of St. Louis, and which said cake and bread bakery was not constructed with air shafts, windows, and ventilating pipes sufficient to insure the proper ventilation of said bakeshop, as required by that section of the statute. During the course of the opinion the entire provisions of both sections of the statute upon which the information and judgment rest will be fully reproduced. The defendant filed his motion to quash the information on the ground that it violated both the federal and state Constitutions. We do not deem it essential to reproduce the numerous grounds alleged in the motion to quash, and the particular constitutional provisions, both of this state and the federal Constitutions, which it is claimed that the provisions of the statute upon which this information is based violate. During the course of the opinion we will make such reference to the constitutional provisions as may be necessary in order to present our views upon the questions involved. The motion to quash was by the trial court overruled, to which action of the court the defendant duly preserved his objections and exceptions. A plea of not guilty to the charge as contained in the information was entered by the defendant, and the trial proceeded, neither party requiring a jury, before the court sitting as a jury.

We shall not undertake to set forth in detail the testimony introduced upon the trial. It is sufficient to say, as applicable to the first count, that the state introduced testimony which tended to establish the allegations in the information. The testimony as applicable to the second count is very unsatisfactory, and while it may be true, as a matter of fact, that the building occupied for the bakery of the defendant was not constructed with air shafts, windows, and ventilating pipes sufficient to insure ventilation, yet the testimony by the inspectors fails to make a clear showing that the building was not so constructed. They testified about there being two small windows, but no inquiry was made of the witnesses as to the air shafts or ventilating pipes, and, while that testimony would be of a negative character, yet, under the provisons of section 10,089 it was essential to show that the building was not constructed with air shafts, windows, or ventilating pipes sufficient to insure ventilation. In fact there is an entire absence of any testimony upon the subject of whether or not this building was so constructed as to insure ventilation. An inquiry of that kind was made of one of the inspectors, and the testimony was objected to, and the objection sustained; however, with the views we entertain of the provisions of section 10,089, as before stated, we deem it unnecessary to detail the testimony introduced upon the second count of the information as applicable to that section. The defendant did not introduce any evidence upon the trial of this cause.

At the close of the evidence upon the part of the state the defendant requested an instruction in the nature of a demurrer to the evidence, as follows: "Now comes the above-named defendant at the close of the state's case, and moves the court to find the defendant not guilty under the evidence and charge herein." This motion or instruction was by the court overruled. The defendant requested numerous other declarations of law, which were by the court overruled. The cause being submitted to the court, the defendant was found guilty upon both counts of the information, and his punishment assessed at a fine of $10 upon each count. Timely motions for new trial and in arrest of judgment were filed, which were by the court overruled, and the defendant prosecuted his appeal to this court. Through some inadvertence the record in the trial court was first transmitted to the St. Louis Court of Appeals. Subsequently that court transferred the cause to this court, for the reason that they were without jurisdiction to dispose of it, and it is now pending before us for consideration.

Zachritz & Bass, for appellant. E. W. Major, Atty. Gen., and Jno. M. Atkinson, Asst. Atty. Gen., for the State.

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

It is insisted by learned counsel for appellant that the section of the statute upon which the first count of the information is predicated is unconstitutional and void. In other words, it is contended that this section of the statute is violative of both the state and federal Constitutions. Article 2, § 4, Const. Mo.; article 2, § 30, Const. Mo. (Ann. St. 1906, pp. 128, 166); article 14, § 1, Const. U. S. Amend. The solution of this proposition necessitates a careful consideration of the provisions of section 10,088, Rev. St. 1899, upon which the prosecution in this cause is based. This section provides: "That no employé shall be required, permitted or suffered to work in a biscuit, bread, pastry or cake bakery or other bakery or confectionery establishment in this state more than six days in one week, said week to commence at a stated time, `post meridian,' on Sunday, and to terminate not later than the corresponding time on Saturday of the same week — except from this rule may be the time on Sunday for setting the sponges for the night's work following. No person under the age of sixteen years shall be employed in any bakeshop between the hours of nine o'clock at night and five o'clock in the morning."

The proposition with which we are confronted as to the constitutionality of this section was in judgment before the Supreme Court of the United States in Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937, upon a statute substantially the same as the statute upon which the prosecution in the case at bar rests. Section 110 of the New York statute (Laws 1897, c. 415) provided: "No employé shall be required or permitted to work in a biscuit, bread or cake bakery or confectionery...