Commonwealth v. Reinecke Coal Mining Co.

79 S.W. 287, 117 Ky. 885, 1904 Ky. LEXIS 258

• Court: Court of Appeals of Kentucky
• Decided: March 16, 1904
• Status: Published

Opinion

Opinion of the court by

JUDGE SETTLE —

Reversing.

On October 7, 1902, the grand jury of Hopkins county found and returned in the circuit court of that county an indictment against the appellee, Reinecke Coal Mining Company, which was in words and figures as follows: “The Commonwealth of Kentucky against Reinecke Coal Mining Company. Indictment. Hopkins Circuit Court. The grand jurors of the county of Hopkins, in the name and by the authority of the Commonwealth of Kentucky, accuse the Reinecke Coal Mining Company of the offense of unlawfully and wilfully failing and refusing on or before the 15th and 30th days of August, 1902, to pay within fifteen days of the aforesaid 15th and 30th days respectively, in full amount of wages in lawful money of the United States of. America, due a person engaged and 'employed by said company in xhe mining industry, the said company employed the services of more than ten persons in the mining industry, committed in manner and form as follows, to wit: The said Reinecke Coal Mining Company, in the said county of Hopkins, on the 15th day of August, 1902, and beforel the finding of this indictment, did unlawfully and wilfully fail and refuse on or before the 15th and 30th days of August, 1902, to pay within fifteen days of the aforesaid 15th and 30th days of August, respectively, in lawful money of the United States of America, the full amount of wages due Ben Anderson, a .servant and employe of the said Reinefcke Coal Mining Company, and to whom money was due by the said company for services rendered sa;id company in August, 1902, for work done in the mining industry.

The said Reinecke Coal Mining Company was, during the months of July and August, 1902, engaged in the mining industry, to wit: Mining coal, and did have in its employment during said months and engaged' in mining coal at one and the same time and place persons in greater number than ten. Said Reinecke Coal Mining Company was at that time and is now doing a corporation business in Hopkins county, Kentucky, and said company was not prevented from paying said wages in said monthsi by unavoidable casualty. Against the peace and dignity of the Commonwealth of Kentucky.” The lower court sustained a demurrer to and dismissed the indictment, and from that judgment the Commonwealth has appealed.

The offense for which appellee was indicted was created by subsection 1, section 2739a, Ky. St., 1903, which reads as follows: “That all persons, associations, companies, and corporations, employing the services of ten or more persons in any mining work or mining industry, in this Commonwealth, shall, on or before the 15th and 30th days of each month, pay to within fifteen days of the aforesaid fifteenth and thirtieth days, respectively, each servant or employe in lawful money of the United States, the full amount of wages due each such' servant or employe rendering such service, unless prevented by an unavoidable casualty; provided however that if at any time of payment any servant or employe shall be absent from his place, he shall be entitled to such payment at any time thereafter on demand.” Subsection 2 of section 2739a forbids the blacklisting of their employes by any person, company, or corporation engaged in the business of mining, or the coercing of such employes to trade at any particular store. And subsection 3 of the same section declares that a violation of any of the provisions of the act shall be deemed a misdemeanor, and upon conviction the persons, company, or corporation so offending shall be fined not less than $50 nor more than $100 for each offense. As originally enacted, subsection 1 of section 2739a, of the stat-. ute stvpra differed somewhat from that subsection as it now appears, in that it provided for the payment to the employe on or before the 16th day of each month of his wages for the month previous, and contained this further provision, which is not found in the present statute, viz.: “But if such person, corporation or company, after using due diligence, is unable to make said payment as above required (i. e., on the 16th of each month), he or it shall within fifteen days thereafter make out a payroll and statement of account due each employe and also a due bill for said sum bearing interest from said 16th day of the month, and deliver same to each of said employes.” Ky. St., 1899. The original act was amended by an act approved March 21, 1902 (Acts 1902, p. 125, c. 60), the enacting part of which is as follows: “Be it enacted by the General Assembly of. the Oommonwealth of Kentucky: That section one of an act entitled 'An act concerning the employes and servants 'in mining work or industry in this commonwealth,’ which was received by the Governor, March 2nd, 1898, (Acts' 1898, p. 59. c. 15), and became a law at the expiration of ten days without the Governor’s approval, be, and the same is hereby, repealed, and the following is enacted in lieu thereof.” Then follows the language constituting the present, subsection 1 of section 2739a, which is accurately quoted in the foregoing part of this opinion.

We are not advised as to the grounds upon which the lower court sustained the demurrer to the indictment, as the judgment is silent upon that subject, but take it for granted thatit was sustained upon one or more of the several grounds argued in the brief of counsel for appellee. It i® contended that the indictment charges two offenses, for which reason the demurrer was properly sustained. We question the soundness of this contention. There seems to be but one offense set out in the indictment. Reduced to the brilefest statement, the charge, in substance, is that appellee, on the-day of August, 1902, unlawfully failed and refused on or before August 15 and 30, 1902, to pay to within 15 days of those dates, respectively, in lawful money, the full amount of wages due Ben Anderson, its employe, among more than 10 others, for labor performed by him in its business of mining. We therefore incline to the opinion that the demurrer should not have been sustained on this ground. But if we are mistaken in this conclusion, and should concede that the demurrer ought to have been sustained'because two offenses are charged in the indictment, nevertheless it would have been error for the court to dismiss the indictment on that ground, for when a demurrer is sustained to an indictment because of its charging two offenses the proper practice is to allow the commonwealth’s attorney to elect for which of the two offenses he will prosecute the defendant in the indictment.

It is insisted for appellee that the indictment is defective because it does not allege that Ben Anderson was at his place of labor at the time his wages'were payable under the statute, or, if absent, that he did upon his return demand of appellee his wages. This objection is urged in view of ihe proviso contained in the statute which declares that “if at any time of payment any servant or employe shall be absent from his place of labor, he shall be entitled to such payment at any time thereafter on demand.” It is not necessary for an indictment to negative a state of facts that may be relied upon as a defense. If appellee can shield itself behind the proviso of the statute, it must do so by way of defense. An indictment need not follow the language of the statute upon which it is based. It may use the words of the statute, or words of similar import; consequently the indictment in the case at bar is not, as argued, defective because it does not follow the precise language of the statute upon which it is based. Commonwealth v. Scroggan (22 R., 1338), 60 S. W., 528; Connor v. Commonwealth, 13 Bush, 721. As it sets forth the offense with such certainty as to apprise the appellee of the nature of the accusation upon which it is to be tried, and to constitute a bar to a subsequent prosecution for the same offense, it is sufficiently specific. Paynter v. Commonwealth (21 R., 1562), 55 S. W., 687.

It is also contended in argument that the amendment of 1902, under which the indictment in this case was found, was not enacted in compliance with the provisions of section 51 of the Constitution, which declares that: “No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title; and no law shall he revised, amended, or the provisions thereof extended, or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred shall be reenacted and published at length.” And it is claimed that the title of the act of 1902 is defective, in that the amendment of the act of 1898 is the subject thereof, and such subject does not appear in its title; and because, as further contended, it amends the act. of 1898 by a reference to/ its title only, and without republishing the act as amended. The title of the amendment of 1902 is as follows: “An .act concerning the employes and servants in mining work or industry in this Commonwealth.” The general subject of the amendment as of the original act of 1898 is the better protection of employes and servants in mining work or industry, and the objection in view is their payment in lawful money for services rendered. The act, as amended, contains! nothing that is not germane to the subject expressed in the body thereof and in the title, and its meaning is so plain that any person of ordinary intelligence can readily understand it.

Nor is it true that the act in question amends that of 1898- by a reference to its title only, and without republishing the act as amended. The act of 1902 sets forth in explicit terms that section 1 of the original act is repealed, and that the single section constituting the amendment shall be and is substituted therefor. No other section or provision of the original act was amended by the act of 1902, and as section 1, enacted in lieu of the one repealed, is set out in full — that is, ‘‘published at length” — in the act of 1902, such publication was and is a substantial compliance with section 51 of the Constitution. In Purnell v. Mann, etc., 105 Ky., 95, 20 R., 1146, 48 S. W., 409, this court, in construing the section of the Constitution supr-a, said: “The question, then .arises how to construe the provision, ‘but so much thereof .as is revised, amended, extended or conferred, shall be reenacted and published at length,’ so as to substantially comply with that section. We think the manifest intention was that the provision should apply only to so much of the law ¡as, after passage of the new act, remains in force amended.” Herndon v. Farmer (24 E., 1045), 70 S. W., 632. The act of 1902, as passed and published, is full and specific enough .as to the subject embraced by it to show for what part of the law of 1898 ift is substituted; and, moreover, the part for which it is substituted being in express terms repealed, the residue of the law of 1898 ifei unaffected, and left in full force.

It is further contended for counsel for appellee that the ¡statute, as amended, is class legislation, also special legislation, and not a just exercise of the police power, for any and .all of which reasons it iisi unconstitutional, and should be so declared by this court. The questions raised by the foregoing objections have been heretofore settled by this court in favor of the validity of the statute, and its constitutionality upheld, in the case of the Commonwealth of Kentucky v. Hillside Coal Company 22 R., 559, 58 8. W., 441, and, without taking time to quote from the opinion, or to discuss it in detail, we hereby express our approval of its reasoning and conclusions. In truth, section 244 of the Constitution, which provides that “all wage earners in this State employed in factories, mines, workshops, or by corporations, shall be paid for their labor in lawful money,” authorized the enactment by the Legislature of the statute in question. It is true that Commonwealth v. Hillside Coal Company, swpra, was decided before the passage of the act of 1902, whereby the law of 1898 was amended. But the points of difference between the statute and its original and amended form we-have already indicated. They are not material and the opinion of the court in Commonwealth v. Hillside Coal Company is just as applicable to the present as it was to the former-statute.

We can find no ground for the appellee’s contention that an enforcement of the statute supra- would interfere with vested rights, impair the obligations of contracts, or' impose-a penalty for the nonpayment of debt. It is a well established principle in this- State that, so long as the Legislature does not pass the limits- fixed by the Constitution, the-courts have no authority to interfere on the ground that the act in question violates the natural principles of justice- and right. Tiedeman, Lim. Police Powers, section 3. The-subjects' for the exercise of the police power are, first, -preservation of the public health; second, preservation of the-public morals; third, regulation of business enterprises* fourth, regulation of civil rights of individuals; and, fifth,, the general welfare and safety of the citizens. All business must be subject to reasonable regulations, and as- the Legislature in enacting the statute under consideration seems to-have kept within the purview of section 244 of the Constitution, we are constrained to hold that the statute in all of its parts is valid. Consequently the lower court erred in. sustaining the demurrer to the indictment.

Wherefore the judgment is reversed, and cause remande® for proceedings consistent with this opinion.