State v. Carter

142 P.2d 403, 18 Wash. 2d 590

• Court: Washington Supreme Court
• Decided: July 26, 1943
• Docket: No. 29068.
• Status: Published

Opinions

¹ Reported in 140 P.2d 298; 142 P.2d 403. Carroll Carter was convicted on all eight counts of an information, filed in King county, charging him with the crime of collecting or receiving a rebate of employees' wages, from which conviction he appeals. The charging parts of all eight counts are the same, excepting only as to the names of employees and amounts. Therefore, it will suffice, for the purposes of this opinion, to set out the charging language of count one, which is:

"He, the said Carroll Carter, being the elected, acting, and qualified county treasurer of King county, Washington, in the county of King, state of Washington, on or about the first day of February, 1943, did collect or receive the sum of Twenty-one dollars ($21.00) from William R. Randolf, an employee in the office of the county treasurer, King county, Washington, the said Twenty-one dollars ($21.00) being a rebate of a part of the wages theretofore paid by King county to said William R. Randolf."

To this information, appellant interposed a demurrer. At the close of the state's case, appellant challenged the sufficiency of the evidence, which challenge was denied, and appellant assigns the denial as error.

[1] The pertinent part of Rem. Rev. Stat. (Sup.), § 7612-21 [P.C. § 3552-31] (amended in other particulars and now appearing as Rem. Supp. 1941, § 7612-21), under which the information was brought, reads as follows:

"Any employer or officer, vice-principal or agent of any employer, whether said employer be in private business or an elected public official, who

"(1) Shall collect or receive from any employee a rebate of any part of wages theretofore paid by such employer to such employee;. . .

"Shall be guilty of a misdemeanor."

Assuming, but not deciding, that all of the state's evidence was competent and that it will sustain the allegations of the information, does it establish that the appellant committed the crime of collecting or receiving a rebate of employees' wages, as defined by the statute? Each count of the information alleges that the appellant did collect or receive a certain sum from an employee in the office of the county treasurer theretofore paidby King county.

In the case of Savage-Scofield Co. v. Tacoma, 56 Wn. 457,105 P. 1032, this court said: "Accepting the common use of the word `rebate — to draw back,' one cannot draw back something which he never put forward, . . ."

In the case of the United States v. Laudani, 134 F.2d 847, the court said:

"Laudani, the appellant, was foreman for the Cape AnnGranite Company and, as such, had authority to employ and discharge stone masons and other stone workers in connection with the work. He knew that the rate of pay for such employees, as fixed and posted on the work, was a certain amount per hour over the period of time involved in the indictments and that all workers so employed were entitled to receive compensation in full at the posted rate of pay without deduction for any purpose whatever. Notwithstanding, Laudani and one or more of his representatives, as the indictments alleged, induced by threats of dismissal, etc., certain named employees of the Cape Ann Granite Company to give to and for Laudani and one or more of his representatives parts of such employees' wages to which the latter were entitled for work and labor performed on the particular work.

"Section 1 of the Act of June 13, 1934, 40 U.S.C.A. § 276b, whereon the indictments are based, provides that, `Whoever shall induce any person employed in the construction, prosecution, or completion of any public building, public work, or building or work financed in whole or in part by loans or grants from the United States, or in the repair thereof to give up any part of the compensation to which he is entitled under his contract of employment, by force, intimidation, threat of procuring dismissal from such employment, or by any other manner whatsoever, shall be fined not more than $5,000, or imprisoned not more than five years, or both.'

"From a reading of the statute it seems plain that the evil aimed at is the inducing of an employee, engaged in work of the character specified, `to give up any part of the compensation to which he is entitled under his contract of employment.' The `contract of employment' referred to of course means the contract between the employee and his employer. United States v. Golderet al., D.C.E.D. Pa., 11 F. Supp. 870, 871. Essential, therefore, to the crime as defined by the statute is the impairment, violation or derogation of the employee's contractual right with respect to the wages he is to receive. As the person capable of so offending, because of the requisite privity of contract, is the employer, the statute as written necessarily has application to a situation where the employee gives up or cedes a portion of his contractual wage to or in favor of or at the instance of the employer or one acting for or on behalf of the employer. In the Golder case, supra, Judge Kirkpatrick of the District Court for the Eastern District of Pennsylvania, said that `If the workman receives the whole amount of the wages which the employer agreed to pay him when he went to work and is not compelled to give back or to waive any part of it, the act has not been violated.' Further specifying in United States v. Charlick, D.C.E.D. Pa., 26 F. Supp. 203, 205, the same Judge stated, and we think correctly, that `The offense at which it [The "Kick-Back Act"] is aimed is, compelling workmen to return to theiremployers wages to which the contract between the employer and his employees entitles them.'" (Italics ours.)

In the light of the above quoted cases, we are constrained to hold that money paid by King county and collected or received by the appellant, as an individual, is not a rebate under the purview of the statute.

To hold that money so paid and collected or received is a rebate, as we understand the term, would be to affirm, in effect, one or the other of the following propositions: (1) that the appellant, and not King county, is the employer and that the wages were paid from the funds of the appellant rather than of King county; or (2) that the money was collected or received by King county, as such, as a rebate, rather than by the appellant individually. Neither of these propositions is sound, in our opinion.

The information, therefore, does not allege the commission of an offense as defined by the statute.

The judgment is reversed, and the trial court is directed to dismiss the information.

MILLARD, J., concurs.

STEINERT, J., concurs in the result.