State v. Tibbetts

It is contended on rehearing that the statute is void for uncertainty, in that the word "locality" must have in its practical application a relative and variable meaning, so indefinite that it is impossible to determine how much territory is or should be embraced by the phrase "in the locality where the work is performed."

The word "locality," considered in a common-sense way with the context and the purpose of the act, is no more difficult of construction than multitudes of other words and phrases upheld by the courts in the administration of criminal law. There are many legal terms that cannot be defined with mathematical certainty, such as "culpable negligence," "reasonable doubt," "felonious intent," and "res gestae." These and other terms must be construed in their common and ordinary significance, as they reasonably apply to the subject or object to which they relate. "Locality," as used here, is equivalent to "place," "near the place," "vicinity," or "neighborhood." Hart v. Atlantic Coast Line, 144 N.C. 91,56 S.E. 559, 12 Ann. Cas. 706; Brazier v. Philadelphia, 215 Pa. 297, 64 A. 508, 7 Ann. Cas. 548; Babcock v. Hahn, 175 Mo. 136, 75 S.W. 93, Town of Grove v. Haskell, 24 Okla. 707, 104 P. 56; Landis v. Thos. Milville Gas Light Co., 72 N.J. Eq. 347, 65 A. 716; volume 3, Second Series, Words and Phrases, 587.

The question here presented is not similar to the one involved in the case of Street v. Varney Elec. Co., 160 Ind. 338, 66 N.E. 895, 61 L.R.A. 154, 98 Am. St. Rep. 325, relied upon by petitioners. In the Varney Case the court said:

"The act of March 9, 1901, undertakes to fix the minimum rate of compensation to be paid to a particular and limited class of laborers employed upon any public work of the state, counties, cities and towns, without regard to the actual value of such labor, or the rate paid by other persons, natural or artificial, for the same kind of labor in the same vicinity."

The statute here in question avoids this vice. It provides that the same wages shall be paid as are paid for like labor in that vicinity. There is nothing inherently difficult about ascertaining whether there is an established current wage for like labor in any locality. If there is no similar labor being performed in any particular locality, then the contractor is at liberty to contract as he pleases; otherwise, he must conform to the established wage scale in that locality as defined above.

In the case of Atkin v. Kansas, decided by the Supreme Court of the United States, 191 U.S. 207, 24 Sup. Ct. 124, 48 L.Ed. 148, the court construed a statute with identical provisions and sustained its validity, where it was stipulated as part of the facts that the work done was in all respects the same as that done for private persons, firms, or corporations in Kansas City, Kan. While the court made no comment concerning the meaning of the word "locality," or concerning the character of the work, we assume that it considered both sufficiently definite under the agreed statement of facts.

Since this is an appeal upon a question of law, by the state, and no order was made in the trial court to hold the defendants, the dismissal below became final, so that as to the petitioners no further orders can be made affecting them.