*1 thereof. a deed is it of the contents Such purchaser from
void and even if a bona-fide ELECTRONICS, BEEHIVE MEDICAL nothing by it takes who altered INC., now known as Beehive Inter it.8 national, Appellant, Plaintiff given when a deed is Ordinarily v. land, full execution of a contract of sale of The INDUSTRIAL COMMISSION of prior contract are Utah, Alsop, and Belva Defendants therein; merged merger and when the Respondents. party, upon denied the burden is him by clear contrary to show to the and con 15062, Nos. 15127 and 15203. vincing evidence.9
Supreme Court of Utah. gave of the deed Mr. The alteration July 1978. nothing. rights The mineral were Olsen the Rasmussens only retained
effect of the alteration was to cloud the
title of the Rasmussens to their mineral
rights.
The evidence is not clear and con
vincing that the Rasmussens committed
fraud Mr. reserving Olsen in the min rights.
eral There was no claim made that given
the deed as should be reformed and request
even if a to have it reformed had counterclaim,
been made in the it would
have come late. given too The deed as is in
full force and effect.
The judgment is reversed and the case is
remanded with directions to order the de-
fendants to correct the recordation of the
deed to show the mineral to be in the
plaintiffs. claim is No made briefs regarding disposi-
filed in this matter
tion of funds received from Olsens leasing rights. mineral rec- stipula-
ord seems to indicate some sort aof regarding
tion par- matter which the undoubtedly
ties will honor.
Costs are awarded to the Rasmussens. HALL, JJ.,
CROCKETT concur.
WILKINS, J., concurs in result.
MAUGHAN, J., dissents.
Instruments,
c;
McAdams,
8. 4 Am.Jur.2d Alteration of
9. 26 C.J.S. Deeds 91 Duncan
§
v.
27;
Co.,
Mosley Magnolia
(1953);
45 N.M.
v.
Petroleum
Ark.
WILKINS, Justice: All statutory references are to Utah Code Annotated, 1953, amended, unless other- wise indicated.
Defendant, (hereafter Belva Alsop “Al- *3 sop”), commenced this action below claim- ing a violation under the Utah Antidiscrim- Act, 35, ination Chapter (hereafter Title 34 “Act”). September On she filed a complaint, pursuant 34-35-7, to Sec.' claim- ing sex discrimination in pay rate of be- tween herself and several men who were hired to do the same work that the defend- April 28, 1975, ant did. original On hearing in this matter was held before a hearing examiner of the Industrial Commis- 8,1975, sion of the May State Utah. On the hearing findings examiner made of fact and conclusions of law in Alsop. favor of 8,1975, In July its order dated the Industri- al adopted Commission fact findings of and conclusions of law hearing of the exam- iner and from its order Plaintiff Beehive Electronics, Inc., Medical now known as International, Beehive (hereafter “Bee- hive”), appealed to the District Court of County Salt Lake for a trial de novo. The trial de novo January commenced on 24,1977, 11,1977, and on March the District judgment affirming Court entered the find- ings of fact and law conclusions of Industrial Commission determining that against there had been discrimination Al- sop. Judgment granted was in favor of $4,326.80, representing in the sum of pay arising the differential out of the discrimination. Beehive was ordered to discriminating cease and desist from against the defendant at place of her sex, employment on the basis of her pay was ordered to her the same rate of being paid counterparts was to her male Kimball, Keith Rooker and Dale A. C. of who were doing the same work. Beehive Maak, City, Martineau & Salt Lake further taking was ordered to refrain from appellant. plaintiff and any retaliatory against action the defend- ant for her action in filing complaint Hansen, Gen., Atty. B. Joseph Robert P. with the Industrial Commission the Crellin, State McCarthy, Attys. Jack L. Asst. Gen., pursuing legal rights of Utah or for her Dwight King, City, Lake for de- Salt respondents. fendants and Court. 26, 1977, hearing was April employment, held 1976 in com- thereby
On the District Court based an her for pensating deprivation pay, before equal Cause, following which the Order status Show and classification vio- order, 3, 1977, May Court entered an dated lation of Act. The in the Court also contempt adjudging plaintiff to be in 11, 1977 judgment March ordered Beehive violating antiretaliatory court for to cease and desist from further discrimina- antidiscriminatory provisions of the March tion against additionally prohibit- Beehive judgment. ap- Plaintiff ed Beehive from retaliatory action from the and orders above. peals bringing her for this action. employed by Febru- assigns Plaintiff errors number of the material ary expediter 1972 as an infra which we address Addi ourselves. organization Beehive. Novem- supply will be assign tional facts recited in the began of 1972 ber she to function they pertain. ments of error which Bee *4 operation. phase of the material purchasing hive contends that hearing before the the. period activity worked in that for She Commission Industrial was and unlawful assignment and then moved to an as time invalid an attorney because for Com company for a supervisor
the stores for the not present support mission did the case in period short of time. returned to work She complaint. of Alsop’s It authority cites as had purchasing phase in the until she health position 34-35-7(7), for this pro which 5, 1974, problems. August Then on she vides that: purchasing re-commenced work in the The case in support complaint of such phase company activities. presented shall be at hearing by one findings The District Court in dated attorneys agents. of the commission’s or 11, 1977, Beehive March found that had account against Alsop discriminated on 34-35-7(8) specifically per- Section states in sex, 34-35-6(l)(a), her violation of Sec. part: tinent by paying wage paid her a lower than was In the discretion of the hear- counterparts positions male which to her examiner, ing complainant may be al- similar comparable were and work present lowed to intervene and testimony Beehive; Alsop performed which for or counsel. [Emphasis add- by failing also Beehive discriminated to ed.] experience Alsop on-the-job credit with and It was not improper therefore for wage training determining job and present testimony either personally crediting her concurrently title while male during counsel the proceedings before the counterparts with experience hearing grounds examiner. Other exist for training; that Beehive discriminated our determination that this contention is against Alsop by establishing, creating and unmeritorious but need not specified as utilizing job what amounted fictitious preceding dispositive. comments are job justifica- titles and levels as a basis paying wage tion for her a lower than her Beehive asserts that it was error to counterparts, respec- male when the actual jury refuse a trial in District Court. Bee tive duties of and her male counter- hive argues because Section 34-35- parts significantly materially 8(12) were not Act of the reads as follows: further, different and the male counter- The of the Utah Rules of parts require higher did not skill a level of Procedure, Civil far applicable, so actually per- than that at which was chapter, not in conflict apply forming. proceedings provi- the courts under the this chapter. sions of granted judgment The Court favor of $4,326.80, Alsop for represented nothing which nega- Act specifically she trial, that, sum differential to which jury tives the there- August fore, entitled from to February 38 of the Rule Utah Civil Rules of The effect contention, further cites of Beehive’s were governs.1 Procedure adopt it, not, we to which we do would be I, of the Constitution Article Section long that so as a company official authoriz- Amendment Seventh ed to terminate employees person- does not as addi- the United States Constitution ally order, antiretaliatory violate an court authority position. for its tional company discrimination and retaliation point second believe Beehive’s We through company employees other 34-35-8(6) states: without merit. Sec. workers who assert their under the trial de novo of a Upon the conclusion court, Act would not contempt constitute proceedings or other in the district court power and the enforcement type of this dispose of issues appropriately order would be emasculated pur- law, court shall of fact and of the district poses and policies of the Act would be fact, of law conclusions findings enter large degree. thwarted to a company The decree, which shall be judgment official authorized to terminate employees applica- subject enforcement is not the exclusive source of retaliation and any party commission or tion of the discrimination which may exist in a busi- parties may waive judgment. Employer The ness. retaliation and discrimina- tion, orders, violative of court and conclusions of law. be in- findings of fact by employees flicted other than the compa- in the district entered ny official authorized to terminate workers. supersede any order made court shall In the instant case the District Court found [Emphasis the commission. added.] *5 that the conduct of Mr. Maeser did not shall that the District Court By providing antiretaliatory violate the order but rather cases, fact in such the findings enter its of Lamb, that the actions and conduct of Mr. court, clearly intended that the Legislature employee Alsop’s an of Beehive and imme- appeal in jury, the fact finder on supervisor, retaliatory diate were and con- cases, and the antidiscrimination sequently violative of the Court order. trials are not pertaining jury Rule 38 Beehive also contends that the Dis the proceedings. Also applicable to these ordering trict Court erred in reinstatement pertaining provisions in Utah’s Constitution Alsop payment wages in lieu there by jury trial are not offended in this case discharge of after her on March essentially here were proceedings as the her discharge, After with insubordination Further, that equitable.2 Beehive admits therefor, the assigned as cause an order was has not Supreme the United Court States Beehive, immediately supported served on right by the to a trial specifically extended by Alsop’s petition, ordering ap Beehive to States, the to which in civil actions to jury pear why in Court to show cause it should the Amend- agree. we Further Seventh contempt found in thereof for not be diso law”, at common speaks ment of “Suits beying prior relating orders of the Court determining no basis for that perceive employment Alsop, why Alsop the should in this case exist- proceedings applicable the not be her earnings during awarded the ed at common law. job by period “kept she is off the con as further error that assigns Beehive Beehive, why duct” of economic sanc guilty contempt it found could not be imposed against tions should not be Alsop that discharging court as found for prior for its disobedience Court’s Maeser, termi a Beehive official who Mr. hearing orders. The Court was held on found, violate the Court’s Alsop, April nated did not 1977. The Court after this pro antiretaliatory pertaining hearing, discharge to and Alsop’s order was without cause, tecting retaliatory, her. and hence in disobedience by jury protection provides: impor- 2. It is the 1. Rule “The of trial and enforcement of given by personal by tant and civil as declared the Constitution or as establish basically preserved parties.” proceedings equitable. these as See statute shall be Am.Jur.2d, Equity, Sec. 66. by any respondent awarded dam- employment orders. It prior agency, of its discharge her date of ages from the restoration to membership by $792 represented hearing, which respondent the date of the organization, labor the admis- during period. earnings loss sion to or continuation in enrollment in stated “that Additionally, the Court an apprenticeship program, on-the-job- day (Beehive) continues to diso- each training program, or a school, vocational Court, guilty it is of a bey the orders of posting notices, making contempt day’s court. Each disobedience reports as to the manner of compliance, separate contempt and it is constitutes [Emphasis .. added.] that a fine of $200 the order of Court The District Court is not limited to the days per is four per working day, statutory sanction for contempt as the sole week, per aggregating the sum of $800 means of enforcing its judgments and or- levied, week, which said fine shall con- ders in Rather, antidiscrimination cases. (Beehive’s) long contemptuous tinue as powers granted by statute to the Indus- finally continues.” And the Court conduct trial Commission may also be exercised pay per that Beehive $180 ordered the District Court in these cases at the trial week, deductions, in lieu of less normal do novo. And those powers are buttressed order, 3,May re-employment. In the dated provides: Sec. 78-32-11 which permit ordered Beehive to Court If an actual or injury loss to a party employment to return to her or to is caused by contempt, paid which she was on pay wages her the court, in addition to the imprison- fine or 5, 1977, May day discharge. of her On imposed ment contempt for the or in Beehive, by pleading, compensate elected to thereof, place pro- order the rate she her in lieu of at ceeded party aggriev- date, prejudice paid on that without ed a sum of money sufficient to indemni- concerning error this and Beehive to claim fy him.[Emphasis added.] other matters. Beehive contends that the penalty of asserts, effect, Plaintiff that the sole two per day hundred dollars levied enforcing means of the Court order is the *6 District Court is unlawful because it oper statutory contempt sanction for ates prospectively and it is in excess of the are within areas of remedies ordered permitted maximum under Sec. 78-32-10. jurisdiction Com- reserved Industrial provides That section part: in mission, Noting the District not Court. . if it is adjudged that he [the 34-35-8(6), ante, part noted of Sec. person proceeded against] guilty is of the judgment “The en- provides that: contempt, a fine may imposed be upon supersede court shall tered the district $200, him exceeding not or he may be commission.”, any by the it order made imprisoned county jail in the not exceed- illogical would be to assert that the District thirty ing days, or he may be both fined supersede any Court’s could order imprisoned . by made the commission if the sole method statutory were the court enforcement In this action the District Court found contempt sanction of while the commission that the acts of Beehive toward Alsop con- 34-35-7(12) empowered by to: Sec. stituted contempt. Having levy elected to a fine as the penalty, issue and cause to be served Court under the statute could have respondent requiring imposed up such an order a fine of Court, however, The respondent such to cease from ruled that $200. and desist Bee- guilty hive would be discriminatory separate of a employ- or unfair offense contempt day for each after the practice ment and to take such affirma- date of action, to, including, tive but not limited order Beehive failed to reinstate reinstatement, hiring, Alsop compensate upgrading her in lieu thereof and backpay, or without a fine employees, imposed per working day a $200 applicants employment referring penalty. order, but not limited to . making its the District Court ”. We feel First, two authority ways. impair
exceeded its would the efficacy of the Act to Second, it a fine of over $200. it levied acknowledge reinstatement as an affirma- for acts that penalty prospectively levied tive action but not at logical times its alter- place. taken had not native, viz., payment thereof, in lieu if an equitable-solution requires. so We affirm provides for certain contempt The statute the District in permitting Court payment in that must be followed procedures formal employment lieu of in this case as the bit- imposed. can be When an penalty before a (reflected record) engendered terness contempt is not committed in the alleged Court, parties between the would otherwise we presence view and immediate person appears mutually accused before believe sow seeds for a destructive Court, thereupon pro- must the Court relationship, promote and hence continuous charge, and must investigate the course, ceed to litigation. future payment Of which the arrested hear answer lieu of reinstatement would always not The to the same. Sec. 78-32-9. may make action; acceptable an per- affirmative guilt is made Court determination ceive under certain circumstances that rein- at the and evidence taken upon the answer statement should be mandated with no al- The District 78-32-10. hearing. Sec. ternative. however, action, only ruled not Court When, however, payment lieu of rein- yet taken would constitute that action statement remedy, guide- is ordered as a offense, pay but also that Beehive must an lines must be set order to achieve an doing, In so a fine for that action. equitable solution consistent with pur- Further, was in error. District Court poses of the Act. We therefore hold here provision of penalty misconstrued the Court that there must pay- termination of by imposing penalty of $200 the statute ment period after a reasonable Court, plain- day. having found each time from the remand of this case to the lawfully have guilty contempt, tiff could Court; District pursue must rea- $200, up but under imposed a fine diligence sonable after said remand to seek circumstances, no more. these qualified for which she is ante, District Court ordered As noted skills; salary at a commensurate with her pay Alsop per week less $180 week, per that the less normal $180 deductions, reinstatement. in lieu of normal employee (as deductions ordered the Dis- issuing or- 34-35-7(12) allows the Court) trict must also be diminished after action in promotive of affirmative ders remand earnings receives from employ- unfair discriminatory cases of *7 unemployment other com- practices pur- will “effectuate the ment as pensation, any, during period pay- if her of heretofore poses chapter”. of this We have order; ment under adoption Court that actions under the Act are declared of other factors to relevant which the indi- essentially equitable. It is in this vein that equities vidual facts and lend themselves. point. are on this our comments made Beehive also asserts that the find 34-35-7(12) specifically refers Sec. ings of the District supported Court are not as an affirmative action to reinstatement competent substantial or evidence and it payment that in lieu and we herein hold essence, alleges alternatively, that those proper circumstances thereof is also under findings against weight are the clear of the though specifical an affirmative action We findings evidence. hold that the are section as one. This section ly listed said supported by competent and substantial ev desirability of acknowledges the need and and, equitable idence under principles of than those stated affirmative actions other review, we further that the employing language evidence specificity by with hold “ action, including, clearly preponderate against of . . . affirmative does not 60 purpose The of findings required as is the Antidiscrimination
District Court’s is to Act eliminate cases.3 discrimination in the equity reversal of payment wages based solely on the finally contends that of sex where basis men and women are Act as construed Utah Antidiscrimination the same doing or similar work under all violates District Court applied by and of same agree conditions. We that of the Consti the Due Utah Process Clause that is a salutary proper purpose. and In 7; tution, I, the Due Process Article Section that connection it is of interest to note United of the Clause of the Constitution of Constitution the State of 1; XIV, States, and Section Amendment has, statehood, Utah since . contained I, thereof, Article Sec the Contract Clause IV, Article Sec. 1 . tion 10. contends that Specifically, comprehensive This clear and state- case Act, construed in this applied IV, ment our foundational law [Art. objective, and is no state legitimate fulfills Sec. correlates the purpose 1] We beyond police power. Legislature’s shall there be no discrimination based on disagree. 809-810, sex. emphasis 506 P.2d [At add- legislative The in the Act not to mandate ed.] alia,
discriminate, on the against one inter One other matter concerning con harmony with fulfill- basis of sex is in stitutionality should be mentioned. If we Utah, Article of the ment Constitution assume, arguendo, there is irreconcil IV, Section which declares: ability between two of the Con rights citizens of the State Utah, viz., IV, ante, stitution Art. Utah hold office shall not be to vote and I, and Art. Sec. 184 which states: abridged denied or on account sex. . . impairing No law the obli- Both male female citizens this gations passed, of contracts shall civil, equally political enjoy shall State IV, prevail then Art. 1 Sec. must as the religious rights privileges. precious more right in our basic law. All And this is the constitutional declaration including obligation fundamental — achieving goal abolishing matrix for remain, believe, peril contract — discriminatory to be practices ought unfulfillment when invidious discrimination —which they may at times have though abolished permitted law, notwithstanding any aspect benigni- the seemingly appealing seeming argument winsomeness of ty. suggests vindication for that discrimination. Kopp City, v. Lake 29 2d Salt However, we do not believe (1973), 506 P.2d denied Court IV, there is tension between Art. Sec. 1 claiming relief to a woman violation I, Art. Sec. 18 of Utah’s Constitution. the Act on the there basis had always It has been recognized that a con fact situation of that case been no discrimi- contains, implicitly, tract the laws existing though paid nation her she completed. at the time it is Quagliana See wage counterparts. lower than male Builders, Exquisite Inc., Utah, v. Home Though the did not issue Court address the (1975); P.2d 301 Edwards v. Kearzey, 96 constitutionality of the uncon- Act’s (1878).5 24 L.Ed. U.S. It has also —or stitutionality application the Act— long recognized the “impairment been *8 Beehive that urges significant obligation” provision as is of of here —it the United (and this Court did state: Constitution similarly States that of Nelson, 80, 3. Nelson 30 P.2d contract v. 2d 513 5.The here was made after the statute (1973). 1011 in was enacted 1969. As such the contract implicitly challenged provisions contains the of States, I, of 4. Cf. Constitution the United Art. the Act. any pass Sec. 10: “No Shall . State . . impairing Obligation . . . Law the of Con- tracts . . . ”.
61 ELLETT, Justice Constitution) (dissenting). Chief protect to future is not Utah’s existing prior to rather those but contracts It my opinion is the statute runs challenged statute. the enactment provisions counter the state to of our consti- right a do establish provisions tution, I,' These sec. 1 provides: Article of which illegal are make contracts to parties All the men have inherent and inaliena- They merely pre policy. public against and right enjoy ble to and defend their lives liberties; changing the and acquire, possess pro- to and “impairment” vent tect . property; Og been made. the contract has after laws Saunders, 12 Wheat. U.S. den v. Our addressed in provision Court the Kearzey, v. (1827); Edwards 6 L.Ed. Golding Optical case of v. Schubach Co.1 supra, U.S. wherein was said: it The Constitution declares in ar- finds Act nour- Antidiscrimination Utah’s ticle men are nature free and § IV, 1 of this Sec. validity Art. ishing independent, and have certain inalienable of no and know State’s Constitution rights which among pursuing are the and of Utah in the Constitution provision other happiness, obtaining safety, and and impoverishes which or United States property. rights These invaded are when cit- including those validity, liberty one ‘is not at to contract with Beehive, ante. ed others respecting use to which he may 34-35-6(l)(a) states: subject property employ his to use his [or talents], time or the or manner which . “To discriminate matters may enjoy he it. The legislature may payment of compensation” means prescribe the form in which contracts employees wages or salaries differing shall binding, be executed be valid or re- equal experience, having substantially parties, but cannot limit competency and for sponsibilities, contracts, incorporate into their other- job. [Emphasis . add- particular . . valid, wise may such terms as mutual- ed.] ly satisfactory to . . them.’ case, significant it is to note that the In this right of one to sell his time and his tal- Court, particu- findings of the District same, ents is the as inalienable as the specified the findings ones larly the right of the owner property other 11,1977, suf- March demonstrate sale, respecting use, to contract pay though she had fered discrimination enjoyment thereof. right This of con- responsibil- equal “substantially experience, tract, course, subject is to such reason- job” which ities, competency for the police regulations able be enacted precisely counterparts, or more male promote public good. In determin- counterpart, Kenneth Ed- a Mr. one male ing purports the effect of statute which wards, possessed. change limit of contract purposes, require rules to the District This case remanded such changes or limitations must be ex- hearing concerning the Court for a further implied declared or pressly reasonably in lieu of rein- payment matter of language from the used. opinion. Af- with this statement consistent I can police regulation see no present except the order all other matters firmed in legislation. It takes on more of nature prospec- fining concerning political ploy regula- than it of a does ante, is reversed. which tively, discussed health, safety, tion of or morals. are awarded to Costs In legislature California the enacted a Beehive. law provided that all liens of materi- payable almen laborers shall .mon- JJ., ey. Mill Co. v. HALL, concur. the case Stimson MAUGHAN *9 32, (1937). 871 70 P.2d
1. 93 Utah 62 agreed the contractor had with the same work
Braun2 and would also permit different to owner take certain unused material wages to be paid to two women doing the part payment of his contract. On trial the work, same but does not permit different court held that the contract violated the wages if the sexes are different. That does Supreme statute. The Court of California not make such sense to me. court said: reversed trial type What discipline could exist in the provision The in the constitu- organization if an unwanted em- (article respecting tion mechanics’ liens ployee kept is on the payroll the authori- 20, 15) is subordinate to declaration § ty of the Industrial Commission and backed instrument, of rights in the same which up order of the courts? This ais sure 1, (article 1) all declares men have § way destroy to a private enterprise ‘acquiring, right pos- inalienable should not be condoned this Court. sessing protecting property,’ 13, person section that no shall be de- system In our of free enterprise, competi- prived of property process ‘without due is any tion such that private organ- business right of law.’ The of property antedates ization must seek out the best and most constitutions, all pro- and the individual’s employees efficient if it is to survive and tection in enjoyment right prosper. prospective If a employee can fit objects one society. of the chief He organization into an job and do a better enjoy has the to right property his employee, another than then that prospect improve according the same his to own hired; will certainly be would not desires, way consistent with the matter he whether or she was black or others, subject only just white, female, male Gentile, or Jew or right demands of the state. This is in- Catholic Protestant. liberty if he is not at vaded to contract The legislature permit would do well to respecting others the use to which people to run their enterprises own business may he subject property, his or the man- it. without too much may enjoy legis- ner in he The interference and allow right may prescribe acquire lature the form in which men the property lawfully contracts shall be executed order that and to enter freely into contracts with all binding, they may be valid but it can- they may agreeable. whom find parties incorpo- not limit the Kopp City4 The case of v. Salt Lake was respecting prop- rate into contracts their brought under the statute here involved. It valid, erty, such otherwise terms necessary to decide the constitu- them.3 mutually satisfactory to tionality of the statute then because we (cid:127) only person Not should a entitled held that there was no discrimination in- pleases, contract with whom he or she but case; volved in that do and we not hold a also sole judge should be the statute to be unconstitutional if the matter whether or is a employee not an satisfacto- can otherwise be determined. ry one. No people two have identical abili- I would reverse of the low- any given endeavor, ties in field er court and award costs to the appellant. employer should be pay able to each one they may mutually remuneration as agree upon. CROCKETT, J., in the views ex- concurs pressed statute dissenting involved opinion in the instant mat- of EL- permit LETT, J., ter would dif- C. employer insofar itas is consistent with wages ferent engaged two men his dissent below. 122, (1902).
2. 136 Cal.
68 P.
(1973).
4.29
2d
63 simple yet complex of CROCKETT, facts life that (dissenting). Justice (or sophisticated confused) in a less era less I said below assert preface to what is something appreciated be accepted, to to belief in commitment and my unreserved and honored. every per- principle that justice of the the equally all enjoy entitled to son should be this was the that 'Correlated to realization consistent and immunities rights, privileges differences in some make those instances equally ba- respecting recognizing with and one sex more suitable than the other for others; should that this rights in and sic Witness, and occupations. certain activities work, equal equal and equal pay for include g., e. of more aspects some the violent merit, without recognition and reward for war, living, fighting in a or in the How- only on sex.1 based discrimination competitive rougher sports, in which such ever, is not a just rights, right, like differences are so obvious. Further note be and right to asserted sole and absolute welder, that a plumber, layer, a a brick others, of all but to the exclusion exercised may helper both want and a with need prop- in its applied be and should considered qualifications, one of that certain which is out pointed to This is relationship er them. Conversely, he be of the male sex. a den- Ellett relation by Chief Justice may tist or a doctor for his own reasons which in- employer’s right property, in his prefer nurse an assistant the female respect right to contract with cludes the Similarly, though perhaps sex. ex- not for thereto. reasons, actly young the same man unnecessary me to confront It seems to be some sort of an illusion that he under unconstitutionality of the issue the the as to partner his for the Junior wants choose I entirely. say it down statute and to strike partly Prom on the basis of sex. interpret duty it is our to so this because importance keep It the is of utmost it is apply a statute that constitutional system the our sustaining that mind ques- The statute if that can be done. depends upon pres- individual freedoms harmony salutary with purpose tion has a initiative and free ervation individual of Art. IV of our Utah Constitution. Sec. 1 turn depends that this in enterprise; and in a manner consistent with applied If it is right own hold employer’s an important recognizing equally other consti- contracts,2 to enter into and to property, carry out rights, tutional can stand and according to operate his his own business properly appli- wherever it is purpose most judgment as to the efficient and desir- cable. way able to assure its success. pretensions I make no the artfulness opinion em- places The main considerable side any aficionado on either persuade phasis proposition on the determi- subject “women’slib” which seems to relationship of this personal nation it is my so controversial of late. But be rights na- dependent equitable thereon is confusing often impression that are Accepting that the in- proposition, ture.3 be made because of allowances must justice require terests of that the total situ- between the sexes the obvious “differences” analyzed should ation sensible “inequalities.” claimed Notwithstand- with practical way, including only justice honoring the ing the fairness and non-discrimination on account sex above, the fact must equalities referred to, employee is but with due entitled there recognized and dealt are interests, one) rights consideration for other multiplex (not just many differ- sexes; including employer, and that fact ences between my society generally. is one welfare of It that there are such innate differences 1; U.C.A.1953, Const., IV, opinion. 3. Footnote main Art. 34- 1. Utah seq. et 35-1 Const.; I, Golding Art. v. Schu Sec. Utah Co., Optical P.2d 871. bach *11 are weighed if those interests opinion that other, relationship to each proper
in their case,
and to the evidence considera- justice equity
tions of lead to the con- happened to Ms.
clusion that what
was the result of other factors involved in it, her relationship her employer
but was not attributable to discriminating on
unlawfully against her sex;
account of and that therefore
finding thereon should permitted to stand. GRIBBLE,
Emmarae Plaintiff Respondent,
v. GRIBBLE,
Michael Defendant Appellant.
No. 15453.
Supreme Court of Utah.
July