DECISIONS OF COURTS AFFECTING LABOR.

[This subject, begun in Bulletin No. 2, has been continued in successive issues. All material parts of the decisions are reproduced in the words of the courts, indicated when short by quotation marks and when long by being printed solid. In order to save space, immaterial matter, needed simply by way of explanation, is given in the words of the editorial reviser.]

DECISIONS UNDER STATUTORY LAW.

APPLICATION OF THE EIGHT-HOUR LAW-INABILITY OF EMPLOYEE TO WAIVE PROVISIONS OF STATUTE OR TO RECOVER PAY FOR HIS SERVICES IN EXCESS OF EIGHT HOURS PER DAY-Short v. BullionBeck and Champion Mining Co., 57 Pacific Reporter, page 720.-Suit was brought by B. L. Short against the above-named mining company and a hearing was had in the district court for the fifth district of Utah. In his complaint the plaintiff stated "that between the 1st day of June and the 1st day of November, 1896, plaintiff was employed in a mill owned and operated by the said defendant at Eureka City, State of Utah, for the purpose of treating and reducing ore, by said defendant, at the rate of $2.50 per day, and at defendant's request; that the laws of the State of Utah, found on page 219 of the Laws of Utah for 1896, and section 1337 of the Revised Laws of 1898-an act regulating the hours of employment in underground mines [and smelters-made eight hours a day's labor in such places, which act is hereby made a part of this complaint; that between the 5th day of June and the 1st day of November, 1896, plaintiff worked in said mill and reduction works, at the request of the defendant, twelve hours per day; that said services were not performed in cases of emergency, or when life or property was in imminent danger; that the overtime worked of four hours each day amounted to fifty-nine and one-quarter days; that said work and labor was reasonably worth the sum of $2.50 per day-a total of $148.15; that the said $148.15 has not been paid, nor any part thereof." The plaintiff also set out twelve other causes of action of a similar character. The defendant filed a demurrer to each cause of action on the ground that the complaint did not state facts sufficient to constitute a cause of action. The demurrers were sustained and the plaintiff declined to amend his complaint. Thereupon the court dismissed the complaint and rendered judgment against the plaintiff, who appealed the case to the supreme court of the State, which rendered its decision June 9, 1899, and affirmed the judgment of the lower court.

The opinion of the supreme court was delivered by Judge Miner, and in the course of the same he used the following language:

No promise is alleged on the part of the defendant to pay for the overtime worked. This court is asked to imply a promise to pay from the

fact that plaintiff was requested to work 12 hours per day, which request plaintiff complied with. Chapter 72, p. 219, Sess. Laws, 1896, which [is] pleaded and made a part of the complaint, in force when the work was performed, reads as follows:

"SECTION 1. The period of employment of workingmen in all underground mines or workings shall be eight hours per day, except in cases of emergency where life or property is in imminent danger.

"SEC. 2. The period of employment of workingmen in smelters and all other institutions for the reduction or refining of ores or metals shall be eight hours per day, except in cases of emergency where life or property is in imminent danger.

"SEC. 3. 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."

The statute above referred to was held constitutional by this court in State v. Holden, 14 Utah, 71, 46 Pac., 756, and the Supreme Court of the United States affirmed such decision in Holden v. Hardy, 169 U.S., 366, 18 Sup. Ct., 383 [Department of Labor Bulletin No. 17, page 625, holding that the act in question was a valid exercise of the police power

of the State of Utah.

The plaintiff claims that he was employed by the defendant to work for 12 hours per day, and that he worked for it 12 hours per day or 4 hours more than the law allowed him to work. There could be no period of employment for the plaintiff, under his complaint, without an employer. The defendant could not well violate the law unless some one was employed and performed labor prohibited by the statute. When the plaintiff voluntarily performed services at the request of the defendant in the mill, and worked 12 hours instead of 8 hours, there was a violation of the statute. Had he worked 8 hours each day there would have been no violation of the statute. When the defendant requested the plaintiff to work 12 hours each day, and plaintiff complied with that request, the law was violated by the act of each party. The penal provision of the statute applies, and was intended to apply, not to the employer alone, but to any person who shall violate its provisions. The language of the act does not authorize any inference that it was intended by it to confer any right upon the employee to work more than 8 hours a day, and relieve him from any criminal responsibility therefor.

The complaint in this case, taken as true, shows that both the plaintiff and defendant, or person acting in its behalf, were particeps criminis in the violation of the statute. They were in pari delicto. By the plaintiff's act in rendering services prohibited by law at defendant's request both parties became amenable to the penal provision of the statute. The act in question was enacted as a police regulation, and for the public good, in the interest of public policy. The experience of the past few years in the business of mining and smelting and underground workings of mines shows that such business can no longer be carried on with due regard to the safety and health of those miners engaged in such business without special protection and restraint against the danger necessarily incident to such employment. For this purpose laws have been enacted in many States, including Utah, designed to meet such exigencies as may arise, and to secure the safety and health of persons who are peculiarly exposed to such dangers by inhaling unhealthy gases for an unreasonable time while engaged in their employment. The State has a direct interest in the health, safety. and prosperity of its people, and it is as much for the interest of the State

that public health should be preserved as that life should be secure. It was therefore considered that the employment of men in smelters and underground mines for a period of more than eight hours per day was detrimental to the health of such persons, and, as the State had au interest in the welfare of its citizens, such employment and labor for more than eight hours should be prohibited under penalty.

In the present case both parties knew the law. They each agreed to take part in an illegal act. In no case can a servant claim under an express or implied contract for services, when the contract under which it is claimed the services were rendered is in violation of the laws wherein a penalty is attached for the doing of the act upon which recovery is sought. In no case can such a contract be implied when the parties to it are in pari delicto, and where, in order to make out his case, the plaintiff is obliged to resort to the illegal transaction in proof and pleading. The judgment of the district court is affirmed with costs. Judge Baskin delivered a dissenting opinion, from which the following is quoted:

Where a party is employed by another to perform some specific act for a stipulated sum, and afterwards, at the request of the employer, something additional is done by the employee, without any express promise of payment, the law will imply a promise by the employer to pay what the additional service is reasonably worth, and the employeo may recover on an implied assumpsit, by alleging, as has been done in this case, the facts from which the law implies a promise to pay. This is elementary, and therefore reference to the authorities which support the principle is not necessary. The facts alleged in the complaint and admitted by the demurrer bring the case clearly within this general elementary principle, and entitle the plaintiff to recover for the extra labor performed, unless, as asserted in the majority opinion, he is par ticeps criminis with the defendant in violating the provisions of the law of 1896. The terms of this law are so ambiguous and indefinite that resort to construction is required in order to ascertain its meaning and scope. If the term "employment" is used in sections 1 and 2 in the sense of "the act of employing or using," then the gist of the offense is the employment or use by the employer of any of the workingmen employed in the occupations specified for more than eight hours per day, and such employer, only, is subject to punishment under said act; and, if said term is used in the sense of "the state of being employed," then the gist of the crime consists of workingmen engaged in the occupations specified laboring more than eight hours per day, and they alone are subject to punishment under said act. I am of the opinion that the term "employment" was used in the sense of the first definition of the term before mentioned, and it was not the intention of the legislature to punish the workingman. The language of the third section indicates that the act was intended to apply only to the employers of workingmen. That section specifically names the employer, and, if it had been intended to apply it to employees as well, the latter term, from the natural association of ideas, would have been inserted in said section after the term "employer." The fact that this was not done is significant of the intention of the framers of the act.

In the opinion in said case [Holden r. Hardy, 169 U. S., 368, 18 Sup. Ct., 383] the court said: "It may not be improper to suggest in this connection that, although the prosecution in this case was against the employer of labor, who apparently, under the statute, is the only one liable, his defense is not so much that his right to contract has been

infringed upon, but that the act works a peculiar hardship to his employees, whose right to labor as long as they please is alleged to be thereby violated. The argument would certainly come with better grace and greater cogency from the latter class. But the fact that both parties are of full age, and competent to contract, does not necessarily deprive the State of the power to interfere where the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself."

In our own free country it has become necessary to invoke the strong arm of the law to protect the laborer against the rapacity of his employer. The Supreme Court of the United States, in the case of Holden v. Hardy, expressed the opinion that the employer was the only one liable under the statute of Utah, and in that connection made the following terse statement of certain recognized facts, which, I think, show the reason why employees are exempted from liability, to wit: "The legislature has also recognized the fact, which the experience of legislators in many States has corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are, to a certain extent, conflicting. The former naturally desire to obtain as much labor as possible from their employees, while the latter are often induced by the fear of discharge to conform to regulations which their judgment, fairly exercised, would pronounce to be detrimental to their health or strength. In other words, the proprietors lay down the rules, and the laborers are practically constrained to obey them. In such case self-interest is often an unsafe guide, and the legis lature may properly interpose its authority." As the plaintiff is not amenable under the statute, he was not, as asserted in the opinion of the majority of the court, particeps criminis in the violation of the statute. To deny the right of the plaintiff to recover the reasonable value of the extra labor performed at the request of the defendant, is to punish him whom the legislature intended to protect by said act, and reward the culpable party for an extortion which the act was passed to prevent.

COERCION OF EMPLOYEES-INDICTMENT INSUFFICIENT UNDER STATUTE-State v. Darlington, 53 Northeastern Reporter, page 925.—One Frank G. Darlington was indicted under section 2302 of the Annotated Statutes of Indiana of 1894 for the coercion of an employee, which section reads as follows:

SECTION 2302. It shall be unlawful for any individual, or member of any firm, agent, officer, or employee of any company or corporation to prevent employees from forming, joining and belonging to any lawful labor organization, and any such individual member, agent, officer or employee that coerces or attempts to coerce employees, by discharging or threatening to discharge from their employ or the employ of any firm, company or corporation because of their connection with such lawful labor organization, and any officer or employer, to exact a pledge from workingmen that they will not become members of a labor organization as a consideration of employment, shall be guilty of a misdemeanor, and upon conviction thereof in any court of competent jurisdiction, shall be fined in any sum not exceeding one hundred dollars, or imprisoned for not more than six months, or both, in the discretion of the court.

In the circuit court of Marion County, Ind., this indictment was quashed upon motion of the defendant, and from this action the State appealed to the supreme court of the State, which rendered its decision. May 23, 1899, and sustained the action of the lower court.

Judge Dowling, in delivering the opinion of the supreme court, used the following language in showing the reasons for the decision:

The indictment, omitting its title and formal parts, was as follows: "The grand jurors for the county of Marion, and State of Indiana, upon their oaths present that Frank G. Darlington, on the 29th day of June, A. D. 1894, at and in the county of Marion, and State aforesaid, being then and there the agent, officer, and superintendent of a corporation, to wit, the Pittsburg, Cincinnati, Chicago and St. Louis Railway Company, did then and there unlawfully coerce, and attempt to coerce one William Carroll by then and there discharging him, the said William Carroll, from the employ of said railway company, because he, the said William Carroll, was then and there a member of a lawful labor organization, to wit, the American Railway Union; contrary," etc. The grounds of the motion to quash were (1) that the facts stated in the indictment did not constitute a public offense,

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It is generally true as a rule of criminal pleading, that where the particular act or acts constituting the offense are clearly defined by the statute, it is sufficient to charge the offense in the language of the statute. But, as was said in State v. Aydelott, 7 Blackf., 157, "This mode of setting out an offense is not always attended with the requisite certainty." There should be such a specific description of the offense as will apprise the defendant with certainty of the crime with which he is charged, and enable him to plead the verdict and judgment in any future prosecution for the same offense.

To render a charge of coercion or attempted coercion intelligible, it is necessary that the act or thing the person coerced or attempted to be coerced was compelled to do, or refrain from doing, should be set forth. Used as the word "coerce" is in this indictment, its sense is incomplete. To discharge a man from employment because he is a member of a particular association, church, or political party is not to coerce, but to punish, him. A threat to discharge one in the employment of another unless he will withdraw from an association, church, or political party would, according to the result, be coercion, or an attempt to coerce.

The statute is somewhat vague and uncertain, and a charge in the words of the act that the defendant coerced or attempted to coerce an employee can not be understood without the further allegation that he threatened, or otherwise intimidated, or attempted to intimidate the employee with the penalty of a discharge unless he should sever his connection with, or refrain from joining, such association, church, or party. By the terms of the statute, the offense consists, not in discharging the employee, but in coercing or attempting to coerce him by discharg ing or attempting to discharge him. But the indictment here does not show in what respect the employee was coerced, or an attempt was made to coerce him. If it had been stated that the defendant threatened to discharge the employee unless he withdrew from the labor organization of which he was a member, and that upon his refusal to withdraw he was so discharged, a different question would have been presented.

The judgment quashing the indictment is affirmed.

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