State v. Livingston Concrete Building & Manufacturing Co.

87 P. 980, 34 Mont. 570, 1906 Mont. LEXIS 111

• Court: Montana Supreme Court
• Decided: December 13, 1906
• Docket: No. 2,353
• Status: Published

Opinion

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

The Livingston Concrete Building and Manufacturing Company, a domestic corporation, was charged, by an information filed in the district court of Park county, with violating the provisions of Chapter 50, page 105, Laws of 1905, known as the ‘£ Eight-hour Law, ’ ’ in this: That the defendant, having a contract with the city of Livingston for the construction of certain cement sidewalks, crosswalks, and curbs, did unlawfully and willfully cause, suffer, and permit its servants and employees engaged in such work to work for a longer period than eight hours in a day. To this information the defendant interposed a general demurrer, which was sustained. The state appeals from the judgment for the defendant on the demurrer to the information.

The information states facts sufficient to constitute a public offense, if Chapter 50 above is a valid legislative enactment capable of being enforced; but on behalf of respondent it is urged (1) that the Act is so indefinite as to be incapable of enforcement, and (2) that, even if sufficiently definite, the Act is unconstitutional and void.

The provisions of Chapter 50,"above, are as follows:

££ Section 1. A period of eight (8) hours shall constitute a day’s work on all works or undertakings carried on or aided by any municipal, county or state government, and on all contracts let by them, and in mills and smelters for the treatment of ores, and in underground mines.

"See. 2. Every person, corporation, stock company or association of persons who violate any of the provisions of section one (1) of this Act shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by fine of not less than one hundred dollars ($100) nor more than five hundred ($500) dollars or by imprisonment in the county jail for not less than thirty days nor more than six months, or by both such fine and imprisonment. ’ ’

1. It is said that the statute is too indefinite to be enforceable, in that (1) it cannot be determined whether it intends to impose the penalty prescribed upon the man who works less than eight hours in a day, or upon the man who works more than eight hours in a day, or upon both; (2) it cannot be determined whether it is intended to punish the employer, the employee, or both; and (3) it is so indefinite that, in fact, it cannot be said to forbid the employment of a laborer for more than eight hours in a day.

While it may be conceded that the intention of the lawmakers might have been expressed in plainer terms, we cannot hold a solemn legislative enactment of no force or effect because of the indefinite language in which it is couched, unless we find ourselves unable to divine the purpose or intent of the legislature. (Hochheimer on Criminal Law, 2d ed., see. 28.) For, after all, the function of the court is to determine and make known, if possible, such purpose or intent; for the intention of the legislature is the essence of the law. In Edwards v. Morton, 92 Tex. 152, 46 S. W. 792, it is said: “The intention of the legislature in enacting a law is the law itself, and must be enforced when ascertained.” In Manhattan Co. v. Kaldenberg, 165 N. Y. 1, 58 N. E. 790, it is said: “In construing statutes the proper course is to start out and follow the true intent of the legislature, and to adopt that sense which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature.” (2 Lewis’ Sutherland on Statutory Construction, 2d ed., see. 363.)

It is an elementary rule that effect must be given to a statute, if possible. If the statute is plain and unambiguous, so that no doubt can arise from the language employed as to its scope and meaning, then there is not any room for interpretation or construction, and the reading of the statute itself is a sufficient declaration of its meaning. “When the meaning of a statute is doubtful, the reason and purpose of its enactment are to be taken into consideration in construing it and determining the intention of the legislature. In other words, though a penal statute cannot be extended by construction, it should, if possible, receive such a construction as, when practically applied, will tend to suppress the evil which the legislature intended to prohibit.” (Clark & Marshall on the Law of Crimes, p. 97; 2 Lewis’ Sutherland on Statutory Construction, 2d ed., sees. 528, 530.)

(1.) The history of labor legislation makes clear the evil to suppress which such statutes are enacted. It is the continuous employment of workingmen for such length of time as to imperil their lives or health that is sought to be avoided, and, in the interest of the general welfare of its citizens, the state undertakes to correct the evil as far as it may; or it may have been the purpose of the state to stamp with its approval the view now entertained by many, that, all things considered, the general welfare of workingmen, upon whom rests a portion of the burdens of government, will be best subserved if labor performed for eight hours continuously be taken as the measure of a full day’s work; that the restriction of a day’s work to that number of hours will so far promote the morality and improve the physical and intellectual condition of workingmen as to enable them the better to discharge the duties of citizenship.

With these objects in view, it cannot be supposed that the legislature intended to impose punishment upon every laborer engaged in any of the designated employments who fails to work for the full period of eight hours in every working day. But, on the other hand, it is apparent that the object and purpose in view were to prevent the employment of a laborer in any of such employments for more than eight hours in a day, that number of hours of continuous labor being fixed by the statute as the maximum for a day’s work.

(2.) As it is the purpose of the statute to conserve the health and promote the happiness of the workingman — not to curtail his capacity to earn money or to set bounds upon the greed of his employer- — the statute is written in terms broad enough to include within its inhibition both the employer and the employee. The language is: “Every person, corporation, stock company or association of persons who violates any of the provisions of section one of this Act shall be guilty of a misdemeanor,” etc.

In Short v. Bullion-Beck etc. Co., 20 Utah, 20, 57 Pac. 720, 45 L. R. A. 603, a similar statute of the state of Utah was considered, and it was there held that the statute applies both to the employer and employee, and that the protection which the state throws around the citizen by the enactment of such a law cannot be waived even by the employee, the person for whose benefit the statute is primarily enacted. We do not think that in this respect the statute is at all indefinite, but, on the contrary, the meaning of the language employed seems to be plain.

(3.) It is said that the statute does not in terms prohibit the workingman from engaging in any of the designated employments for more than eight hours in a day, nor does it specifically prohibit the employer from hiring him to do so, and that, in fact, at most, the statute does not do more than define a working day. But the courts have not had difficulty in reaching an altogether different conclusion. The statute of Utah considered in Short v. Bullion-Beck etc. Co., above, provides in section 1 (Session Laws, 1896, p. 219, Chap. 72) that the period of employment of workingmen in underground mines shall be eight hours per day. In section 2 the same language is employed with respect to mills and smelters for the treatment of ores. Section 3 provides: “Any person, body corporate, agent, manager or employer who shall violate any of the provisions of sections 1 and 2 of this Act shall be deemed guilty of a misdemeanor,” etc. Eespeeting this statute, the court said: “When the plaintiff [employee] voluntarily performed services at the request of the defendant [employer] in the mill, and worked twelve hours, instead of eight hours, there was a violation of the statute. # * * When the defendant [employer]' requested the plaintiff to work twelve hours each day, and plaintiff complied with that request, the law was violated by the act of each party.”

In State v. Whitaker, 160 Mo. 59, 60 S. W. 1068, the supreme court of Missouri had under consideration a statute which requires that every electric street-ear, other than trail ears which are attached to motor cars, shall be provided during certain months of each year with a suitable screen which shall fully and completely protect the driver, motorman, gripman, or other person guiding or directing the car from wind and storm. The penalty clause is as follows: “Any person, agent or officer of any association or corporation violating any of the provisions of this Act shall be deemed guilty of a misdemeanor,” etc. The court held that this statute is not so indefinite or uncertain in its meaning as to be inoperative, but that it imposes upon every company or association of persons operating electric cars the duty of providing the screens on their cars, and makes subject, to the penalty prescribed any person who, owning or operating such cars, operates them without screens during the designated months of the year.

The declared purpose of our statute is to impose a penalty upon everyone who violates the provisions of section 1 of the Act. And how may those provisions be violated? Manifestly in no-other way than by the employee working more than eight hours, in a day in any of the designated employments, or by the employer causing him to do so. The information in this ease-charges that the defendant company did unlawfully and willfully cause, suffer, and permit its servants to work for a longer-period than eight hours in a day, and, if this be true, there was. a clear violation of the statute by the defendant company; and it was no less a crime that its servants might also be equally guilty of the same offense.

In this connection it is said that the statute is exceedingly harsh and arbitrary, in that it limits the -number of hours of labor, even though the employee is working by the hour and paid according to the number of hours he works. But, when the purpose of the law is kept in mind, we think this criticism cannot be made. The object of the law is to conserve the health and promote the happiness of the workingmen by such reasonable regulations as will save them in the one instance from overwork, and, in the other, afford them ample time for rest, recreation, and their physical and mental improvement; and therefore it is quite immaterial whether the labor is performed by the day or by the hour. Its object is to limit the number of hours of labor in a day so far as the state may do so. The same criticism might be made of many other public statutes. Every law is a restraint upon some one, and the question of its harshness is only a relative one, depending largely upon the disposition of the person restrained, or -the character of the business in which he is engaged.

It is further urged that the statute is harsh, in that no provision is made for cases of emergency where life or property is in peril; and it may be conceded that the Act would be more consonant with our ideas of a reasonable regulation if provisions had been made for such emergencies. But neither of these criticisms affects the validity of the Act. If it was the legislative will that no exception be made to the rule announced, the courts cannot say that a different policy should have been pursued. In fact, these objections only raise the question of legislative policy, with which the courts have nothing to do, unless it should be made to appear that in its operation the Act would be so unreasonable that it could not be supposed that the legislature ever intended it to have such effect. (20 Ency. of Law, 2d ed., 599.) Whether this statute in its operation will in fact prove to be harsh can only be determined by experience, and a probability that it will do so is not sufficient to condemn the Act in advance.

We are not called upon in this connection to decide whether or not, in the event a workingman had practically completed his eight hours of work upon one of the designated employments, and some emergency should suddenly arise whereby life or property was placed in imminent danger, such employee might not prolong his labor beyond the allotted time without violating the spirit of this statute. That question is not presented in this case, and it is therefore not considered nor decided.

2. In prefacing his brief, counsel for respondent insists that the amendment to the Constitution of Montana, prescribing the hours of labor in works or undertakings carried on or aided by any municipal, county, or the state government, and on contracts let by them, and in mills and smelters for the treatment of ores and in underground mines, approved by popular vote at the general election of 1904, was not properly submitted to the people, and therefore was not properly adopted. And while we do not agree with counsel in this contention, we do say that it is entirely immaterial whether we have such amendment in effect or not; for this question involves the construction of our statute with reference to the Fourteenth Amendment to the Constitution of the United States, and if our statute violates such Fourteenth Amendment, it would not aid it if we had a constitutional provision authorizing it, for in that event our constitutional provision would have to give way to the paramount authority of the Constitution of the United States.

But inquiry as to the constitutionality of this statute ought to be deemed foreclosed, for every feature of it has been before the supreme court of the United States and passed upon by that tribunal. Treated from a purely technical standpoint, the statute embraces two classes of employees: (1) Those engaged in works and undertakings carried on or aided by any municipal, county, or the state government, or on contracts let by them; and (2) those engaged in mills or smelters for the treatment of ores, or in underground mines. A case involving a statute applying to an employee of the first class arose in Kansas, where they have a statute similar to our own so far as applicable to that class of employees and in so far as it raises the question now under consideration. One Atkin had a eon-tract with Kansas City, Kansas, to provide the labor and materials and construct a brick pavement upon Quindaro Boulevard, a public street of that city, and, as such contractor, required one of his employees to work for ten hours per day in prosecuting such work. Atkin was charged with violating the Kansas eight-hour law, was convicted, the judgment affirmed by the supreme court of Kansas (State v. Atkin, 64 Kan. 174, 97 Am. St. Rep. 343, 67 Pac. 519), and by writ of error the case was taken to the supreme court of the United States, where every objection to the constitutionality of the Kansas statute was urged which is urged against our statute here.

Counsel for plaintiff in error in the Atkin Case argued: (1) That the statute of Kansas abridges the privileges of a citizen of the United States, and curtails his liberty with respect to his right to contract with the state or any of its subdivisions; (2) that the construction of the sidewalk in controversy was purely a local affair, with which the state has no concern; (3) that the statute denied to Atkin the equal protection of the laws; and (4) that it was conceded that the work was not dangerous to life, limb, or health, and that daily labor on it for ten hours would not be injurious to the laborer in any way, and therefore the statute could not be upheld as a police regulation. With respect to the first of these contentions the court said: “If it be contended to be the right of every one to dispose of his labor upon such terms as he deems best — as undoubtedly it is — and that to make it a criminal offense for a contractor for public work to permit or require his employee to perform labor upon that work in excess of eight hours each day, is in derogation of the liberty both of employees and employer, it is sufficient to answer that no employee is entitled, of absolute right and as a part of his liberty, to perform labor for the state; and no contractor for public work can excuse a violation of his agreement with the state by doing that which the statute under which he proceeds distinctly and lawfully forbids him to do.”

Counsel for respondent in this case cites Cleveland v. Clements Bros. Construction Co., 67 Ohio St. 197, 93 Am. St. Rep. 670, 65 N. E. 885, 59 L. R. A. 775, and People ex rel. Rodgers v. Coler, 166 N. Y. 1, 82 Am. St. Rep. 605, 59 N. E. 716, 52 L. R. A. 814, in support of the second contention above, which is also urged here. But these cases and several others were cited by counsel for plaintiff in error in the Atkin Case upon the same question, but without avail, and respecting that second contention the court said: “Such corporations are the creatures, mere political subdivisions, of the state for the purpose of exercising a part of its powers. They may exert only such powers as are expressly granted to them, or such as may be necessarily implied from those granted. What they lawfully do of a public character is done under the sanction of the state. They are in every essential sense- only auxiliaries of the state for the purposes of local government. * * * The improvement of the boulevard in question was a work of which the state, if it had deemed it proper to do, could have taken immediate charge by its own agents; for it is one of the functions of government to provide public highways for the gonvenienee and comfort of the people. Instead of undertaking that work directly, the state invested one of its governmental agencies with power to care for it. Whether done by the state directly or by one of its instrumentalities the work was of a public, not private character. ’ ’ (In re O’Brien, 29 Mont. 530, 75 Pac. 196; Wilcox v. Deer Lodge, 2 Mont. 574.) The supreme court further said: “Equally without any foundation upon which to rest is the proposition that the Kansas statute denied to the defendant or to his employee the equal protection of the laws. The rule of conduct prescribed by it applies alike to all who contract to do work on behalf either of the state or of its municipal subdivisions, and alike to all employed to perform labor on such work. ’ ’

With respect to the fourth .contention the court said: ‘ ‘ Some stress is laid on the fact, stipulated by the.parties for the pur-' poses of this case that the work performed by defendant’s employee is not dangerous to life, limb, or health, and that daily labor on it for ten hours would not be injurious to him in any way. In the view we take of this case, such considerations are not controlling. We rest our decision upon the broad ground that the work being of a public character, absolutely under the control of the state and its municipal agents acting by its authority, it is for the state to prescribe the conditions under which it will permit work of that kind to be done. Its action touching such a matter is final so long as it does not by its regulations infringe the personal rights of others; and that has not been •done.” The court disposed of the controversy by saying that the statute of Kansas is not inconsistent with the Constitution of the United States, and that, “indeed, its constitutionality is beyond all question.” (Atkin v. Kansas, 191 U. S. 207, 24 Sup. Ct. 124, 48 L. Ed. 148.) The decision in the Atkin Case is conclusive upon this court and decisive of the question presented here.

So far as the statute affects the other class — that is, workingmen employed in mills and smelters for the treatment of ores and in underground mines — its constitutionality is settled beyond- controversy. (Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780; Cantwell v. Missouri, 199 U. S. 602, 26 Sup. Ct. 749, 50 L. Ed. 329.)

Finally, counsel for respondent says; “If the legislature has the power to deprive cities and their contractors of the right to agree with their workingmen upon the hours of labor or compensation, it has the same right and power to legislate in respect to private persons. ’ ’ But that this contention is erroneous must be deemed settled. In Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937, the supreme court of the United States declared the general rule to be that the right of persons engaged -in private business to make contracts in relation to such business is a part of the liberty of such persons, and is protected by the Fourteenth Amendment to the Constitution of the United States, and that this right includes the right to contract for labor, except where controlled by the state in the exercise of its police power.

So that the three cases — Holden v. Hardy, Atkin v. Kansas, and Lochner v. New York — seem to cover almost every possible feature of labor legislation, except that relating to the employment of women or children, and they determine once for all (1) that with respect to work carried on or aided by any municipal, county, or state government, or on contracts let by them, or in private work of such character as to imperil the health or lives of the workingmen, as for instance, work in mills and smelters for the treatment of ores, and in underground mines, the state may prescribe reasonable rules regulating the hours of labor and the conditions under which such work shall be done; (2) with respect to contracts relating to other classes of private work (except where women or children are employed) the state may not interfere.

In the judgment of this court Chapter 50, page 105, Laws of 1905, is a valid legislative enactment, capable of being enforced. Under this view of the case, we are of the opinion that the information states a public offense.

The judgment of the district court is reversed, and the cause is remanded, with direction to vacate the judgment rendered and the order made allowing the demurrer, and to overrule the demurrer to the information.

Reversed and remanded.

Mr. Chief Justice Brantly and Mr. Justice Milburn concur.