The Court of Industrial Relations v. The Charles Wolff Packing Company

• Decision Date: 10 November 1923
• Docket Number: 23,702
• Citation: 227 P. 249,114 Kan. 487
• Parties: THE COURT OF INDUSTRIAL RELATIONS, Plaintiff, v. THE CHARLES WOLFF PACKING COMPANY, Defendant
• Court: Kansas Supreme Court

227 P. 249

114 Kan. 487

THE COURT OF INDUSTRIAL RELATIONS, Plaintiff, v. THE CHARLES WOLFF PACKING COMPANY, Defendant

No. 23,702

Supreme Court of Kansas

November 10, 1923

Decided July, 1923

Original proceedings in mandamus. Opinion on rehearing filed November 10, 1923. Modification of judgment allowed. (For former opinions see 111 Kan. 501, 207 P. 606, ante, p. 304 219 P. 259.

SYLLABUS

SYLLABUS BY THE COURT.

1. JUDGMENT PURSUANT TO MANDATE OF SUPREME COURT OF UNITED STATES--Jurisdiction of this Court to Hear Motion for Rehearing and Modification of Such Judgment. This court has jurisdiction under its rules to hear a motion for rehearing or modification of judgment, if filed within proper time, notwithstanding a writ of error to the supreme court of the United States has been allowed and citation served.

2. SAME--The Supreme Court of Kansas Governed by the Decision of the Supreme Court of the United States. The supreme court of this state is controlled by the decision of the supreme court of the United States declaring invalid all that part of chapter 29 of the Laws of 1920 which confers on the court of industrial relations the power to fix wages, but the order of that court fixing wages for overtime at time and one-half concerns working conditions and is legal.

3. SAME--Order No Violation of Constitution. Such an order of the court of industrial relations does not violate section 6 of article 6 of the constitution of this state.

Charles B. Griffith, attorney-general, John G. Egan, assistant attorney-general, Baxter D. McClain, and Randal C. Harvey, both of Topeka, for the plaintiff; Chester I. Long, and Austin M. Cowan, both of Wichita, of counsel.

D. R. Hite, John S. Dean, and Harry W. Colmery, all of Topeka, for the defendant.

Marshall J. Burch, J. Harvey, J., dissenting in part.

OPINION

MARSHALL, J.:

The plaintiff moves "for a rehearing and for a modification of the judgment entered upon the motion of the plaintiff to spread the mandate from the supreme court of the United States and to modify judgment, and on the motion of the defendant to spread the mandate of the supreme court of the United States upon the record and to enter judgment pursuant thereto."

We quote from the motion as follows:

"This court, in its judgment upon said motions, ordered that a peremptory writ of mandamus issue, commanding the defendant to put into effect the following parts of the order of the court of industrial relations of the state of Kansas, to wit:

"'3. A basic working day of eight hours shall be observed in this industry; but a nine-hour day may be observed not to exceed two days in any one week without penalty.

"'14. Workers paid by the week or day, if employed within the plant and not within the office or sales department, shall be subject to hours of work . . . as others employed.

"'19. In departments operating twenty-four hours a day and seven days a week, each employee therein shall be entitled to one day off each week.

"'This order shall . . . continue in force until changed by the court (the court of industrial relations) or changed by agreement of the parties with the approval of the court (the court of industrial relations).'

"Said order and judgment of this Court omits from the order of the court of industrial relations of the State of Kansas, made on May 2, 1921, the following portions:

"From the finding No. 3 thereof: 'providing, however, that if the working hours of the week shall exceed forty-eight in number, all over forty-eight shall be paid for at the rate of time and one-half; furthermore, in case a day in excess of the eight hour day shall be observed more than two days in one week, all over eight hours, except for said two days in said week, shall be paid for at the rate of time and one-half, even though the working hours of the week may be forty-eight hours or fewer.'

"And from the finding No. 14 thereof, the words, 'and overtime,' and the words, 'under the terms of finding No. Three hereof.'

"And from the finding No. 19 thereof, 'in other departments, work performed on Sundays and legal holidays shall be paid for at the rate of time and one-half.'"

1. The defendant objects to the jurisdiction of this court to hear the motion and bases its objection on the following facts: On October 11, 1923, a writ of error to the supreme court of the United States was allowed by the chief justice of this court, and on October 12, 1923, citation signed by the chief justice was served on counsel of record for the plaintiff. The defendant contends that by virtue of those proceedings, this cause was removed from this court, and, since October 12, 1923, has been pending in the United States supreme court. The opinion and order of this court directing the mandate of the supreme court of the United States to be spread of record and entering judgment in obedience to that mandate was filed on October 6, 1923; the motion of the plaintiff for rehearing and modification of the judgment was filed October 22, 1923. Under the rules of this court, motions for rehearing or for modification of judgment may be filed within twenty days after the decision. The motion of the plaintiff was filed within that time. Such a motion challenges the attention of the court to any mistakes that may have been made by the court, and gives an opportunity to correct those mistakes. Jurisdiction to correct mistakes is not lost by a writ of error to the supreme court of the United States taken before the motion for rehearing or modification has been filed.

2. On receiving the mandate of the supreme court of the United States, this court construed the opinion of that court as declaring invalid all that part of chapter 29 of the Laws of 1920 which attempts to give the court of industrial relations power to fix wages. The industrial court law gives to the court of industrial relations power to prescribe working conditions and hours of labor and authorizes the court to compel compliance with the order by increasing the compensation to be paid workmen who must work under conditions more unfavorable or work longer hours than those prescribed.

Section 8 of chapter 29 of the Laws of 1920, in part reads:

"The court of industrial relations shall order such changes, if any, as are necessary to be made in and about the conduct of said industry, employment utility or common carrier, in the matters of working and living conditions, hours of labor, rules and practices, and a reasonable minimum wage, or standard of wages, to conform to the findings of the court in such matters, as provided in this act, and such orders shall be served at the same time and in the same manner as provided for the service of the court's findings in this act. . . ."

We quote from Bunting v. Oregon, 243 U.S. 426, 436, 61 L.Ed. 830, 37 S.Ct. 435, as follows:

"There is a certain verbal plausibility in the contention that it was intended to permit 13 hours' work if there be 15 1/2 hours' pay, but the plausibility disappears upon reflection. The provision for overtime is permissive, in the same sense that any penalty may be said to be permissive. Its purpose is to deter by its burden and its adequacy for this was a matter of legislative judgment under the particular circumstances. It may not achieve its end, but its insufficiency cannot change its character from penalty to permission. Besides, it is to be borne in mind that the legislature was dealing with a matter in which many elements were to be considered. It might not have been possible, it might not have been wise, to make a rigid prohibition. We can easily realize that the legislature deemed it sufficient for its policy to give to the law an adaptation to occasions different from special cases of emergency for which it provided, occasions not of such imperative necessity, and yet which should have some accommodation--abuses prevented by the requirement of higher wages. Or even a broader contention might be made that the legislature considered it a proper policy to meet the conditions long existent by a tentative restraint of...