Wiseman v. Tanner

• Decision Date: 24 December 1914
• Docket Number: 50,20-E,2064.,49
• Citation: 221 F. 694
• Parties: WISEMAN et al. v. TANNER et al. (CITY OF SEATTLE, Intervener), and three other cases.
• Court: U.S. Court of Appeals — Ninth Circuit

221 F. 694

WISEMAN et al. v. TANNER et al. (CITY OF SEATTLE, Intervener), and three other cases.

Nos. 49, 50, 20-E, 2064.

United States District Court, W.D. Washington, Northern Division.

December 24, 1914

Dissenting Opinion, December 29, 1914.

Brightman Halverstadt & Tennant, of Seattle, Wash., for complainants Wiseman and others.

Edward J. Cannon, of Spokane, Wash., for complainants Adams and others.

W. V Tanner, Atty. Gen., and C. J. France, Asst. Atty. Gen., of Washington, for defendant state of Washington.

John F Murphy, Pros. Atty., and Robert H. Evans, Asst. Pros. Atty., both of Seattle, Wash., for defendant King County.

James E. Bradford, Corp. Counsel, and Ralph S. Pierce, Asst. Corp. Counsel, both of Seattle, Wash., for intervener city of Seattle.

Lorenzo Dow, Pros. Atty., of Tacoma, Wash., for defendant Pierce County.

George H. Crandrall, of Spokane, Wash., for defendant Spokane County.

Before GILBERT, Circuit Judge, and CUSHMAN and NETERER, District judges.

NETERER District Judge.

A bill in equity is filed by complainants, praying an injunction against the enforcement of the provisions of initiative measure No. 8, adopted by the majority of the electors of the state of Washington, voting for and against the measure, at the general election held on November 3, 1914. After alleging jurisdictional facts, it is charged that said act violates the provisions of section 1 of the fourteenth amendment to the Constitution of the United States, in that it deprives these plaintiffs, and each of them, of their liberty and property without due process of law, and denies to them the equal protection of the law; that it is in violation of section 10 of article 1 of the federal Constitution; that it is in violation of sections 3 and 12 of article 1 of the Constitution of the state of Washington.

Affidavit of plaintiffs is filed in support of the motion for temporary injunction, verifying the allegations of the complaint, and in which it is alleged that the plaintiffs have always been frank and honest with all persons dealing with them in seeking employment; that charges have been reasonable; that they have generally returned to applicants for employment any fees paid, if the labor was not satisfactory; that the charges for securing employment run from 75 cents to $9 each, depending upon the position which is provided; that the value of the business is from $3,000 to $5,000; and that the enforcement of the act would destroy the business, and an interruption would occasion irreparable loss.

The defendants have filed a motion to dismiss, upon the ground that said bill of complaint does not state facts sufficient to warrant this court in granting any relief to the plaintiffs, that plaintiffs have a plain, speedy, and adequate remedy at law, and that this court has no jurisdiction over the persons of the defendants, or either of them, upon the subject-matter of this action, and have filed controverting affidavit of E. P. Marsh, president of the State Federation of Labor, an organization embracing every organized trade of the state except the railroad brotherhoods, and for five years manager of the Everett Labor Temple, 'a place where men, organized and unorganized alike, drifted to constantly with reports of industrial hardships imposed upon them,' who states:

That he has 'been in contact with laboring men of all classes, skilled and unskilled. During the past two years I have been constantly traveling about the state of Washington, visiting every industrial center and many of the smaller towns. * * * It is often hard to get evidence of actual fraud against these agencies that will stand court test. This is in part due to reluctance and inability of victims of employment agents to appear in court. Again, it is also due to the pseudo fraudulent character of representations made by the agencies. * * * That I have visited scarcely a section of this state that I have not heard stories of alleged collusion between private employment agencies and foremen, superintendents, or other agents of employers, the system being apparently to keep men employed for a brief period of time, discharging them to make room for others, the obvious deduction being that the fee was divided between such agencies and such foremen or employers, and that 'the more men employed the bigger the split''

-- and corroborates the contravening affidavit made by D. P. Kenyon, an examiner in the office of the labor commission of the city of Seattle, and sole labor adjuster in the office of said labor commission, who swears that 75 per cent. of all labor complaints have been meritorious from the labor standpoint, and arise out of the wrongs perpetrated by plaintiff and other agencies; that--

'the actual experience, study, and observation of your affiant clearly show that the natural, usual, and inevitable tendency of the employment agency system as conducted in the state of Washington leads to a shortening of the length of employment; that the said system is based solely on the desire on the part of the employment agents to secure fees, and all the money they can, and by reason of such desire and conditions the shorter the time of employment the greater the number of jobs. * * * That generally the applicants, or such employes, who are seeking work, are poor and without money or other means, and are unable to bear the burden of paying the fee demanded and extracted or extorted from them by such agencies. That all of my said experience, observation, and study show such conditions obtain and substantially are of the same character and extent throughout the entire state of Washington'

-- and charges collusion between agencies and managers of employers which results in shorter time of employment to increase the number of 'jobs.'

Mr. A. H. Grout, secretary of the municipal civil service commission and ex officio labor commissioner, corroborates the affidavit of D. P. Kenyon, and further says:

'I also reached the conclusion prior to the adoption of said initiative measure that the only efficient method of regulating the private employment agencies of said state was to prohibit the charging by said agencies of fees to persons seeking employment, and after consultation with other persons engaged in similar official positions to that which I hold I find that it is the general opinion that the prohibition of the taking of fees from those seeking employment is the only efficient manner of regulating said private employment agencies and the curing and preventing of the many abuses which arise i the conducting of said businesses as heretofore practiced.'

James R. Bradford, now and for three years corporation counsel of the city of Seattle, in addition to other matters, states that he has been frequently called upon by the labor commission of Seattle and the labor department to aid in the adjustment of settlements of complaints or claims lodged in the said labor commission by employes against employment agents in said city, and says:

'I have read and know the contents of the controverting affidavit of Mr. D. P. Kenyon, and personally know that a great deal of time of said legal department during all of said period has been consumed in aiding the said labor department in the adjustment and settlement of such complaints, and that very much time and attention has been given by said labor department in the adjustment and settlement of such claims. That during said times said employment agencies have, among other, resorted to various forms of artifices, false representations, and fraud to and in dealing with employes, for the purpose of extracting and extorting money and fees from such applicants; that such false representations, wrongs, and injustice consist, among other things, in statements to such applicants as to the amount of wages they will secure, the sanitary and other conditions in and about the camps at the places of work, the number of hours they will be required to labor each day, the price and character of board and lodging furnished by the employers, the relative distances and miles to the various places of work, and the cost and nature of such transportation, and other similar matters.'

Complainants have filed a reply affidavit, setting out 'An ordinance to license and regulate certain trades and occupations in the city of Seattle, and providing penalties for the violation thereof,' in which ordinance the city of Seattle seeks to regulate employment agencies, and complainants allege compliance with the provisions of the ordinance, and further state:

'That heretofore, on or about the 17th day of November, 1914, in the city of Seattle, the said Kenyon attended a meeting of some of the plaintiffs above named, among whom were Crane, Rafter, Moore, Wiseman, Lilyman, and B. W. Sawyer, at which time the said Halverstadt asked Kenyon if he had any trouble whatever with any of the employment agents which Halverstadt represented, and Kenyon replied he had had no trouble with them whatsoever, and that it was not necessary for anybody to look after them; that there were only three or four agencies in the city which had ever made him any trouble.'

The act in issue reads:

'An act to prohibit the collection of fees for the securing of employment or furnishing information leading thereto and fixing a penalty for violation thereof.

'Be it enacted by the people of the state of Washington:

'Section 1. The welfare of the state of Washington depends on the welfare of its workers and demands that they be protected from conditions that result in their being liable to imposition and extortion.

'The state of Washington, therefore, exercising herein police and sovereign power, declares that the system of collecting fees from the workers

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