State v. Rossman

• Citation: 93 Wash. 530,161 P. 349
• Decision Date: 05 December 1916
• Docket Number: 13441.
• Court: United States State Supreme Court of Washington
• Parties: STATE v. ROSSMAN.

161 P. 349

93 Wash. 530

STATE v. ROSSMAN.

No. 13441.

Supreme Court of Washington

December 5, 1916

Department 1. Appeal from Superior Court, King County; J. T. Ronald Judge.

George P. Rossman was convicted of charging a fee for furnishing employment or information leading thereto, and he appeals. Affirmed.

Edgar S. Hadley, of Seattle, for appellant.

Alfred H. Lundin and Lane Summers, both of Seattle, for the State.

MOUNT J.

The defendant was convicted of the crime of charging a fee for furnishing employment or information leading thereto. He has appealed from the sentence imposed upon that conviction.

The facts are stipulated in substance as follows: The defendant was operating an agency for the employment of stenographers and bookkeepers, and was charging a fee of $2 as an enrollment fee, and 20 per cent. of the first month's salary after the applicant secured employment. On the 14th day of February, 1916, the appellant demanded and received from one Elnora Hughes the sum of $2. She was then seeking employment as a stenographer and bookkeeper.

The appellant makes three contentions in this court, to the effect: First, that a stenographer and bookkeeper is not a worker within the meaning of initiative measure No. 8; second, that the word 'worker' is so indefinite as to render the act void, and, third, that the act is unconstitutional under the fifth and fourteenth amendments to the Constitution of the United States, and like provisions of the Constitution of this state. We shall notice these contentions briefly.

On the first point the appellant relies upon the case of Huntworth v. Tanner, 87 Wash. 670, at 680, 152 P 523, 527, where we held that a school teacher was not a worker within the meaning of that act. In that case we said:

'The act has no reasonable relation to any subject other than the protection of those who may be classed as workers or laborers. It has never been contended that business and professional men, teachers, and those following scientific pursuits, are not amply equipped to protect themselves. A teacher renders the very highest class of professional service, whereas, those for whose benefit this law was passed are frequently unskilled in business affairs, and in many instances are men of foreign birth having no competent understanding of our business methods or our language.'

It is contended by the appellant that a stenographer and bookkeeper, for the reasons stated in Huntworth v. Tanner supra, is not included within the meaning of the term 'worker.' Some things there said might lead to that conclusion. But we are satisfied that a stenographer and bookkeeper is a worker, and therefore comes within the meaning of the act. In Georgia, in a case where a man was employed as a private secretary and stenographer to the president of a railroad and banking company at $125 per month, his duties being to receive dictation and transcribe letters, and to take care of the papers in the office, including the keeping of books and statements, it was held that he was a worker, and was entitled to have his wages exempt from garnishment. Abrahams v. Anderson, 80 Ga. 570, 5 S.E. 778, 12 Am. Rep. 274. And in Cohen v. Aldrich, 5 Ga.App. 256, 62 S.E. 1015, also a Georgia case, a stenographer was also held to be a worker. In that case it was said:

'That a stenographer is skilled and trained cannot affect the nature of the work he does, although it does affect its character. After acquiring the trade, the test is the method of carrying it on. It is difficult to conceive of anything more thoroughly manual than the work of a stenographer. Receiving the sounds from the lips of another, he registers what he hears and reproduces what he receives. He exercises no independence of thought, no initiative, no discretion. The test of his efficiency is his absolute acceptance of what is given him and its return unchanged. If his employer indulges in the pastime of murdering the King's English, he must become a 'particeps criminis,' and join in the assassination. So pronouncedly are the physical faculties involved in stenography that there comes a time when the hand refuses to work, although the mental faculties may be entirely clear. It is preeminently manual labor, work of the hand.'

Under the rule in these cases, and others of a similar character which might be cited, we are satisfied that a stenographer and bookkeeper is a worker within the common acceptation of that term, and is within the meaning of initiative measure No. 8.

It is next contended that the term 'worker' is so indefinite as to render the act void. This contention is based upon the decision in State v. Powles & Co., 90 Wash. 112, 155 P. 774. In that case we held that the term 'commission merchant,' which was defined to be 'any person, firm or corporation whose principal business is the sale of farm, dairy, orchard or garden produce on account of the shipper or consignor,' was too indefinite to base a criminal charge upon by reason of the use of the words 'principal business.' But it was not held there that the words 'commission business,' if they had been used alone, were not capable of accurate definition. But because the word 'principal' was used, it was held that it could not be determined with accuracy what the principal business of a commission merchant might be. The word 'worker' is capable of definite definition, and is readily understood. We think there is no merit in the contention that the act is void for indefiniteness because of the use of the word 'worker.'

It is next contended that the act is unconstitutional because it is not within the police power of the state to regulate or interfere with the right of a private citizen to pursue a lawful business. In the case of Huntworth v. Tanner, we reserved the constitutional question, because in that case it was not necessary to determine that question, for we held that a school teacher was not a worker within the meaning of the act. The question now presented is whether this act is within the police power of the state.

A number of cases are cited by the appellant to the effect that a citizen is guaranteed the protection of his property and the pursuit of his happiness under the Constitution of the United States, and that any person is at liberty to pursue any lawful calling and to do so in his own way when not encroaching upon the rights of others; and it is contended that the police power of the state does not extend to the right to take away or regulate a lawful business. There can be no doubt of the right of a citizen to pursue a lawful calling in a lawful way; but it is equally true that there can be no doubt of the right of the state, through its Legislature, to regulate a business which may become unlawful by improper and unlawful means.

In Munn v. Illinois, 94 U.S. 113, at page 124, 24 L.Ed. 77, it was said:

'When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. * * * From this source come the police powers, which as was said by Mr. Chief Justice Taney in the License Cases, 5 How. 583 , 'are nothing more or less than the powers of government inherent in every sovereignty; * * * that is to say, * * * the power to govern men and things.' Under these powers the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good.'

In State v. Mountain Timber Co., 75 Wash. 581, 135 P. 645, this court said:

'Having in mind the sovereignty of the state, it would be folly to define the term. To define is to limit that which from the nature of things cannot be limited, but which is rather to be adjusted to conditions touching the common welfare, when covered by legislative enactments. The police power is to the public what

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