State v. Rose

• Citation: 125 La. 462,51 So. 496
• Decision Date: 17 January 1910
• Docket Number: 17,856
• Court: Supreme Court of Louisiana
• Parties: STATE v. ROSE

51 So. 496

125 La. 462

STATE v. ROSE

No. 17,856

Supreme Court of Louisiana

January 17, 1910

Rehearing Denied February 14, 1910.

Appeal from Juvenile Court, Parish of Orleans; Andrew H. Wilson Judge.

Lew Rose was convicted of knowingly and unlawfully permitting a minor aged 10 years to appear and perform on the stage of a theater, and appeals. Affirmed.

See also, 124 La. 526, 50 So. 520.

Arthur B. Leopold and B. C. Shields, for appellant.

St Clair Adams, Dist. Atty. (Solomon Wolff, of counsel), for the State.

LAND, J. PROVOSTY, J., dissents.

OPINION

LAND, J.

Defendant was charged on affidavit with knowingly and unlawfully permitting one Rosie Mary Shields, a minor, aged 10 years, to appear and perform on the stage of the Greenwall Theater in the city of New Orleans.

Defendant filed a demurrer to the charge, on the grounds that Act No. 301 of 1908, p. 453, under which he is prosecuted, is unconstitutional, in that its provisions make an arbitrary and unreasonable classification, and are not uniform in operation, in direct conflict with both federal and state Constitutions; that said statute makes a discrimination in favor of minors who work or labor at agricultural or domestic industries and against minors who work or labor at other pursuits; that said statute is unreasonable and its classification not uniform in operation, in that minors are permitted to work and labor in the pursuits specified in the statute, where less than five persons are employed, and are forbidden to labor or work where more than five persons are employed.

This demurrer was overruled, and the defendant excepted. The defendant then entered a plea of not guilty, and on trial was found guilty. The defendant filed a motion for a new trial on the ground that the finding was contrary to the law and the evidence. This motion was overruled. The accused thereupon filed a motion in arrest of judgment on a number of grounds, among others, that the affidavit does not disclose any crime, or offense against the statute and laws of the state of Louisiana, and that the statute in question is unconstitutional for the reasons assigned in the demurrer.

The motion in arrest was overruled, and the defendant was sentenced to pay a fine of $ 25, or, in default thereof, to serve 30 days in the parish prison. The defendant has appealed.

Act No. 83 of 1908, p. 96, creating the juvenile court in the parish of Orleans, was submitted as a constitutional amendment by Act No. 245 of 1908, p. 364, and this amendment was adopted by the people.

Section 2 of Act No. 83 of 1908 provides as follows:

"Appeals from said court shall be allowed on matters of law only, and shall be direct to the Supreme Court of the state."

This prosecution is under the provisions of section 1 of Act No. 301 of 1908, p. 453, entitled "An act to regulate the employment of children, young persons and women in this state. * * *" Section 1 reads as follows:

"That from and after the passage of this act it shall be unlawful for any person, agent, firm, company, co-partnership, or corporation to require or permit or suffer or employ any child under the age of 14 years to labor or work in any mill, factory, mine, packing house, manufacturing establishment, workshop, laundry, millinery or dressmaking store or mercantile establishment in which more than five persons are employed, or in any theatre, concert hall, or in or about any place of amusement where intoxicating liquors are made or sold, or in any bowling alley, boot blacking establishment, freight or passenger elevator, or in the transmission or distribution of messages, either telegraph or telephone, or any other messages, or merchandise, or in any other occupation not herein enumerated which may be deemed unhealthful or dangerous.

"The provisions of this section shall in no way be construed as applying to agricultural or domestic industries. Any violation of this provision shall be punishable by a fine of not less than $ 25 or more than $ 50 or by imprisonment in the parish jail (parish prison in New Orleans) for not less than ten days or more than six months or both in the discretion of the court."

Section 4 of the same act reads, in part, as follows:

"That no child or person under the age of 18 years, and no woman shall be employed in any of the places and industries enumerated in section 1 of this act for a longer period than ten hours per day or 60 hours per week."

Section 5 reads, in part:

"That no boy under the age of 16 years and no girl under the age of 18 shall be employed at any work before the hour of 6 in the morning or after the hour of 7 at night. Provided that this shall not apply to persons working in stores and mercantile establishments on Saturday nights or during 20 days before Christmas."

Section 6 reads, in part:

"That every person, firm or corporation, agent or manager of a corporation employing or permitting or suffering to work children under the age of 18 years and over the age of 14 in all places of business or establishments or occupations enumerated in section 1 shall post and keep posted in a conspicuous place in every room in which such help is employed or permitted or suffered to work a list containing the names, age and place of residence of every person under the age of 18 years employed, permitted or suffered to work in such room."

Defendant contends that acting, dancing, or singing on the stage of a theater is not "labor or work" in the sense of the statute. The word "work" has a much more comprehensive meaning than the term "labor," and has been thus defined:

"To exert one's self for a purpose, to put forth effort for the attainment of an object; to be engaged in the performance of a task, duty or the like." See Webster's Int. Dict. verbo.

The term as thus defined covers all forms of physical or mental exertions, or both combined, for the attainment of some object other than recreation or amusement. The object of the statute was to prohibit the employment of children of tender years in any kind of labor or work in the places occupations, and establishments specified in section 1, and in all others that may be deemed dangerous or unhealthful. Section 5 goes further and in cases of boys under 16 years and of girls under the age of 18 years prohibits their employment at any work before 6 a. m. or after 7 p. m. It goes without saying that acting or performing on the stage necessitates both physical and mental toil; and in our opinion the lawmaker intended to prohibit the employment of children in theaters for labor or work of any kind in the interest of their health and proper physical, moral, and mental development. Whether such children be employed in one or another kind of "labor or work" is immaterial. It may be stated, in this connection, that the Civil Code uses the terms "servant" and "laborer" as synonymous. Articles 2746-2750. Article 2749, prescribing a penalty for sending away a "laborer" before the contract term has expired, without any serious ground for complaint, has been applied to a dancing girl. Baron v. Placide, 7 La.Ann. 229. And this court...