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Decisions of Courts and Opinions Affecting Labor, 1929 and 1930


HE fifteenth bulletin in a series devoted to the presentation of decisions of courts and opinions of the Attorney General construing and applying labor laws of the United States has been published by the United States Bureau of Labor Statistics and is now in press. This bulletin (No. 548) covers the decisions of courts and opinions during the years 1929 and 1930.

In selecting the decisions to be published, cases were taken which were of special interest and importance not only to labor in general but also to students interested in the relation of employer and employee. Despite the very general enactment of workmen's compensation laws, a considerable number of cases still come before the courts, even in compensation States, involving suits for damages, under either the common law or its statutory modifications. Cases of this nature will be found in the bulletin under the general heading, "employers' liability."

The phrase "injury arising out of and in course of the employment," found in most of the compensation laws of the United States, apparently causes the greatest amount of controversy and the most frequent appeals to the courts. A number of the cases listed under workmen's compensation involved this question. Various phases of child labor legislation are also involved in cases under employers' liability and workmen's compensation as incidental to the redress of accidental injuries.

Other cases involving legislation and rules of law as applying to seamen, wages, and contracts of employment are included. Many cases involving the status and power of labor organizations in their different aspects and activities and the constitutionality of a number of statutes relating to labor are also included in the publication.

Arizona Prevailing-Wage Law Declared Unconstitutional 'N A recent decision the Supreme Court of Arizona declared unconstitutional the Arizona statute requiring the payment of the current daily wage in the locality where the work is performed, because the statute is indefinite and uncertain. (State v. Jay J. Garfield Bldg. Co., 3 Pac. (2d) 983.)

The Jay J. Garfield Building Co. was charged with violating section 1350 of the Arizona Revised Code, 1928, in failing to pay one of its employees the current rate of wage for work on the construction of a school building in Pima County, Ariz. It was contended that if the statute were enforced the employer would be deprived of liberty and property without due process of law, in violation of the fourteenth amendment to the United States Constitution and section 4 of the Arizona constitution because the statute was too indefinite and uncertain and because of the fact that whether an act was lawful or unlawful under the statute was left to conjecture, guess, and reasonably different constructions.

In determining the question involved in the case the court said:

It is the validity of the current wage feature of the statute that is in question. The right of the State to limit the hours of labor upon public works for itself or its political subdivisions has long been settled law (Atkin v. Kansas, 191 U. S. 207), and it seems the prevailing rule so declared for a like reason is that the State and its political subdivisions may establish a minimum rate of wages for laborers upon public works (16 R. C. L. 497, sec. 68).

It is not, then, a question of the power of the legislature to prescribe a current rate of wages for manual and mechanical labor on public works, but whether that phrase in its context is sufficiently clear and definite to inform the employer of the per diem he should pay to satisfy the law. If the employer, supposing him to be a person of ordinary intelligence, is not able, as between two or more alternative wages that are open to him, to determine which would be a compliance with the statute, it can not be said the statute is definite and certain, for in such case the court might conclude the alternative adopted by the employer was the wrong one.

The court, after reviewing the cases involving criminal statutes of vague and uncertain meaning, adopted and approved a statement of the rule as found in the United States v. Capital Traction Co. (34 App. D. C. 592), as follows:

The dividing line between what is lawful and unlawful can not be left to conjecture. The citizen can not be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different constructions. A criminal statute can not rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue. Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another.

Applying this rule to the statute in question, the court held that the terms, "current rate of wage" and "locality" were indefinite and uncertain and fatal to the validity of the statute. In conclusion the court cited the case of Connally v. General Construction Co. (269) U. S. 385) and said that "as it was the last and only direct affirmative expression" of the United States Supreme Court that statutes requiring the employer to pay the current wage were invalid, this court was bound to follow it.

Employment Agency Failing to Investigate Applicant Held Liable for Damage Caused by Her Dishonesty

HE Court of Appeals of the District of Columbia has held that a licensed employment agency which has registered an applicant without investigating the address or references of such applicant as required by law, is liable in damages for any loss occasioned by the dishonesty of the hired employee (Janof v. Newsom, trading as The Eureka Employment Exchange, 59 Washington Law Reporter, 794). From the facts in the case it appears that one Bertha Janof telephoned to an employment agency for a servant. The employment agency thereupon sent one in response to the call and the servant was at once hired. On the following day the servant disappeared, together with property valued at approximately $1,000. The employer brought an action against the agency, alleging failure on the part of the agency to perform a duty as required by the statute. The statute involved is the employment agency act of June 19, 1906 (34 Stat. 304, ch. 3438, D. C. Code 1929, title 20, part 9, secs. 941-951). The statute pro

vides among other things that it shall be the duty of the licensed agent to make a permanent record of "the name and address of the applicant to whom employment is promised or offered, the amount of the fee received, and, whenever possible, the name and addresses of former employers or persons to whom such applicant is known." The statute further requires that wherever possible the licensed agent must orally communicate with, or write, to at least one of the references in the case of work in fiduciary capacities. The employer relied upon the statement of the agency that the servant was a recommended one and accepted her because of such recommendation.

The agency defended on the ground of the statements of two former employers of the servant that her services were satisfactory in every respect. The Court of Appeals, however, to which the case was appealed after a judgment by the Municipal Court of the District of Columbia in favor of the agency, stated that no matter how the statements of the former employers were initiated

The result of these alleged communications was not recorded and filed in the agency, as the statute required, and consequently was not available to the officers in their search, nor was it mentioned to them by the defendant when she could give no information about the servant except her wrong address. In this connection, the defendant testified that while she knew the law required her to investigate references, she did not know it required her to record the results thereof.

The court held that a mere perfunctory compliance with the law was insufficient and that—

If injury results from a failure to do the things which it is the obvious purpose of the statute to require, or from a failure to make a reasonable effort in good faith to do them the licensed agent is answerable in damages.

When the statute requires the agent to register the address of an applicant for work, the true address must be registered, so far as reasonable investigation can reveal it. And the giving of a false address should put the agent on notice and inquiry. But here a false address was accepted, and carried in the register for more than a year, when the slightest effort at verification would have revealed its falsity.

The Court of Appeals reversed the lower court and concluded the opinion by stating that

The mere recording of any address offered by any applicant with no verification thereof, with no demand for or investigation of references, does not comply with the statute. If a servant so registered is sent to an employer by a licensed agent, and damage thereby results to the employer, the very injury has occurred which the statute intended to prevent, and consequently the violation of the statute is the proximate cause of the injury. (20 R. C. L. 43; Norman v. Coal Co., 68 W. Va. 405; Leonard v. Doherty, 174 Mass. 565.)

We consider that the requirements of the statute include a reasonable effort in good faith to verify statements made by applicants and to investigate and record their references in return for the monopoly conferred by the licenses of the statute. If this license is of so little value when obtained as not to compensate the agent for the labor and expense of performing such statutory obligations as the defendant contends-it need not be applied for, and it can always be surrendered.

Newspaper Distribution Held not Violation of Kansas Sunday Labor Law

THE Supreme Court of Kansas held, in the case of State v. Needham (4 Pac. (2d) 464), that the work of distributing the metropolitan Sunday newspaper was "work of necessity" and therefore does not violate the provisions of the Kansas Sunday labor law.

It was alleged that on a certain Sunday Berle Needham exposed for sale and sold the Sunday Kansas City Star, and furthermore, that on the same Sunday he compelled certain persons under his charge and control to work in distributing the papers. This conduct on the part of Needham was alleged to have violated section 21-952 of the Kansas Revised Statutes for 1923, which reads as follows:

Every person who shall either labor himself or compel his apprentice, servant, or any other person under his charge or control to labor or perform any work other than the household offices of daily necessity, or other works of necessity or charity, on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding $25.

The district court, Dickinson County, Kans., sustained the position of the company on the theory that metropolitan newspapers are a necessity. Thereupon the case was appealed to the Supreme Court of Kansas. In affirming the decision of the lower court, the supreme court said:

At this stage of the world's progress, with the means of gathering news that are available, we have grown to expect far more expeditious service on the part of the newspapers of the State than was received during the days when the statute in question was passed. * * * This court will take judicial notice of the fact that these demands are met by the Sunday papers of our larger cities. From the small boy whose first thought on arising Sunday morning is the comic section, to the son grown older who turns eagerly to the sport page, the young daughter who peruses the society columns, and father and mother who turn their attention to the more serious pages, the Sunday paper is looked upon and has grown to be a necessity, and this court so holds.

Rate of Pay for Scrub Women Employed by State of Massachusetts


HE Legislature of Massachusetts during the 1931 session fixed the rate of pay for scrub women employed by the Commonwealth at $18 for 33 hours' work. Chapter 372 of the Session Laws of 1931 amended section 5 of chapter 8 of the General Laws, 1921 (as subsequently amended) so as to read as follows:

The pay of scrub women employed by the Commonwealth shall be based upon a regular weekly rate of $18 for 33 hours' work. When time is lost or a greater number of hours are worked by them than the aforesaid 33 hours, the resulting reductions or additions shall be based upon an hourly rate of 55 cents, and they shall be allowed for time off on legal holidays at the regular weekly rate. Scrub women or cleaners regularly employed by the superintendent of buildings shall be paid weekly, and when so employed for a period of at least six months shall be entitled to a vacation each year of two weeks' duration with pay. Such pay shall be based upon the average weekly compensation received by them for the preceding six months' period of employment.

Works Councils and Working Hours in Estonia1

N JULY 10, 1931, the Estonian State Assembly adopted two labor laws, one relating to the establishment and status of works councils and the other to the working hours in the industrial establishments in Estonia.

Works councils. The law in effect replaces the Government regulations of 1919, under which no action could be brought against a manu

1 From report by Edward Hunt, clerk of the United States consulate, Tallinn, Estonia, dated Sept. 11,

facturer who might have been opposed to the so-called "shop elders." The new law provides a legal basis both for the election of members of works councils and for the functions of the "shop elders." It is believed that the new law will have several advantages over the old regulations of 1919. Thus after the enactment of the new law it will be the duty of works councils to assist manufacturers in the rationalization of the methods of production, in settling disputes with workers, in protecting the interests of workers, etc. All these functions, as outlined in the new law, are expected to be of considerable importance in the operation of different industrial enterprises. The manufacturer, under this law, is required to submit to the "shop elder" quarterly statements descriptive of the status of his industrial enterprise. The former must not undertake any mass discharges or engagement of workers without having first consulted the "shop elder." Hours of labor. The law respecting the working hours in industrial enterprises introduces the 8-hour working-day in Estonian industries. It also places the limit of overtime working hours at 75 hours per year for each worker, which limit may be supplemented by an additional 100 hours a year, under special authorization from the Minister of Labor. Overtime work, however, is not to exceed 2 hours per day, a 10-hour working-day being the cumulative limit. Workers are scheduled to receive at least 50 per cent additional pay

for overtime.

Law Providing for Vacations with Pay, in Basel, Switzerland

REPORT from Vice Consul Albert W. Scott, Basel, Switzerreferendum vote, a law has been put into effect in Basel which provides that all wage earners must be given annual vacations with pay, the duration of the vacation depending upon the length of service of the individual. The law was passed by the cantonal legislature of Basel City in June but with the provision that it should be submitted to a popular vote before it should become effective.

The new law will benefit a relatively small number of persons, as factory workers whose hours are regulated by Federal legislation are excepted from its provisions. However, all other employees, including domestic servants, are entitled to vacations if they have worked for the same employer at least one year. During the first four years following the first year of employment a vacation of 6 working-days must be given, from the sixth to the tenth years the employee is entitled to 9 days, and after the tenth year to a vacation of 12 days, not including holidays and Sundays. Vacations may be given at any period of the year but it is recommended that the wishes of employees shall be given as much consideration as possible. The regular wages must be paid and if board and lodging form part of the pay, as in the case of domestic servants, an additional sum varying from 2 to 5 francs (38.6 cents to 96.5 cents) per day must be paid, depending upon the nature of the employment. Office employees, the sales force in mercantile establishments, and workers in several other classes were already receiving vacations with pay, so that the new legislation will benefit chiefly domestic servants and workers in the smaller industrial establishments.

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