Short v. Bullion-Beck & Champion Mining Co. , 45 L.R.A. 603 ( 1899 )

DissbNting Opinion.

Baskin J.,

dissenting.

In this case it is admitted by the demurrer that the defendant employed the plaintiff and was to pay him for ’each day’s labor $2.50; that at the time the plaintiff was employed and during the time he continued in the service of the defendant, by the provisions of the act of the legislature of 1896, eight hours labor in the ore reduction works of the defendant, constitute a day’s labor; that at the request of defendant the plaintiff, during. the time he was in the employ of the defendant, worked in said ore reduction works, each day, four hours more than a day’s labor of eight hours, which he had originally contracted to perform for $2.50, and that such extra service was not performed in cases of emergency where life or property was in imminent danger.

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 employé, 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 em-ployé 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 entitled the plaintiff to recover for the extra labor performed, unless, as asserted in the majority opinion, he is particeps 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. The term' employment used in the first and second sections of said act. is defined by Webster as being “The act of employing or using;” also as “The state of being employed.” The connections in which this term is used in both sections are as follows: “ The period of employment of working men (in certain specified occupations) shall be eight hours per day,” and it is provided in section 3 that “Any person, body corporate, agent, manager or employer, who shall violate any of the provisions of Secs. 1 and 2, shall be guilty of a misdemeanor.”

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 working men 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 working men, 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 that term before mentioned, and it was not the intention of the legislature to punish the working man.

The language of the third section indicates that the act was intended to apply only to the employers of working men. That section specifically names the employer, and if it had been intended to apply it to employes 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. It is true that the term ‘ ‘ any person” is used in said section, but it is,also true that while the expression is broad enough to include employés, it is broad enough to include employer, also, and its use does not therefore explain why the former class was omitted, and the latter class was expressly included, if it was the intention to embrace the former class; nor does its use indicate that it relates to employes, because, as before stated, tbe act was not intended to apply to working men.

In the case of Holden v. Hardy, referred to in the majority opinion, and which is reported in 169 U. S. 366, Holden was charged with having, in violation of said act, unlawfully employed “one John Anderson to work and labor as a miner in the underground workings of the Old Jordan mine in Bingham canyon, in the county aforesaid, for the period of ten hours each day; and said defendant, on the date aforesaid and continuously since said time, has unlawfully required said John Anderson, under and by virtue of said employment, to work and labor in the' underground workings of the mine aforesaid, for the period of ten hours each day, and that said employment was not in case of an emergency or where life or property was in imminent danger, contrary,” etc.

In the opinion in said case the court said, on page 397: “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 employes, 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.”

It is made still more apparent that, under the statute in question, referred to by the Supreme Court, in the. Ian-guage just quoted, the employer is tbe only one liable, when the history of this kind of legislation is considered.

In 1802, Sir Robert Peel introduced in Parliament, and procured the passage of a measure limiting the number of hours per day which an apprentice should be required by his master, to labor, and making it an offense for the master to require the apprentice to work more hours than was fixed as the limit. In about fifteen years afterwards the same broad-minded and patriotic statesman, who was,be it said to his immortal honor, a large manufacturer himself, introduced and procured the passage of a like measure for the protection of young persons employed in manufacturing establishments. These measures were regarded by many persons as an unwarranted interference with free labor, and were bitterly opposed on that ground. The existing facts, however, conclusively showed that even in the absence of any legal restraint labor was not free, but was subjected to the demands which necessity imposed, a force, frequently, so overpowering, as to make the will of employes subservient to the oppressive demands of avaricious masters. As a result of this subservience to such demands thousands of apprentices and young people of both sexes, in England, were being dwarfed in both mind and body, and their health impaired by the excessive hours of labor imposed upon them by their employers. The Apprentice and Factory Acts were passed by Parliament to protect these laborers against such extortions and not to punish them for yielding to the imposition thus imposed upon them.

In 1842, to correct the evil arising from the employment of women and children in coal mines, an Act of Parliament was passed prohibiting altogether the labor of women or children in coal mines and punishing any owner of such mine who should permit such labor to be performed therein.

To protect the laborers from similar impositions, as these Acts of Parliament were passed to prevent, acts have been passed elsewhere than in England. Even 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.

I am not aware that it has ever been held, except in the case at bar, that under any of these acts, passed in this country or elsewhere, it was the intention to punish the laborer as well as 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 employés 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 employés, 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 legislature may properly interpose its authority.” Holden v. Hardy, supra, p. 397.

As the plaintiff is not amenable, under the statute, he was not, as asserted in the opinion of the majority of the court, partieeps 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 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.

The demurrer was improperly sustained, and the judgment should therefore be reversed.