Bell v. Town of Sullivan
63 N.E. 209
Ind.
1902
Check Treatment
Dowling, J.

This action was brought by the appellant against the appellee to recover the sum of $57.60, alleged *200to be due to him on account of “unskilled labor” performed by him on public works of said town of Sullivan. The answer was in five paragraphs, the first being a denial; the second, payment; the third, accord and satisfaction; the fourth, a set-off; and the fifth allеging a special contract between the appellant and the appellee whereby the compensation of the appellant was fixed at $1.10 per dаy for the whole period of his employment. Demurrers to all the paragraphs of the answer ‍​​​​‌​‌​​​‌‌‌‌‌​‌‌‌​‌​​‌‌‌‌​‌​‌​‌‌‌​​‌​‌​‌‌​​​​‌‍except the first having been overruled, the cause was put at issue by a reply in denial, and was submitted to a jury for trial, who returned a general verdict for the appellee. A motion for a new trial was overruled, and judgment was entered upon the verdict. Thе plaintiff below appeals, and the errors assigned and discussed are the rulings of the сourt on the demurrers to the third, fourth, and fifth paragraphs of the answer, and the refusal of thе court to grant a new trial.

The claim of the appellant is founded upon the aсt of March 6, 1899, entitled “An act establishing a minimum wage rate on public work of State, countiеs, cities, and towns, and declaring an emergency.” Acts 1899, p. 515. The first section of said act reads as follows: “Be it enacted by the General Assembly of the State of Indiana: That from аnd after the passage of this act, unskilled labor employed upon any' public work оf the State, counties, cities and towns shall receive not less than fifteen cents an hоur for said labor.”

The facts of the case, as shown by the pleadings and proof, were that the appellant was employed by the appellee, through its marshal and strеet commissioners from March 6,1899, until August 20, 1899, a period of 144 days, of ten hours each, at an agreed rate ‍​​​​‌​‌​​​‌‌‌‌‌​‌‌‌​‌​​‌‌‌‌​‌​‌​‌‌‌​​‌​‌​‌‌​​​​‌‍of $1.10 per day. The work done by the appellant under this agreement consisted of unskilled labor on street improvements, and in cleaning and repairing the streets, аlleys, and sidewalks of the town. He received his pay from time to time at the rate agrеed *201upon, without objection, until the full amount due to him, agreeably to the terms of his contrаct, was paid to him, and duly receipted for. lie then brought suit against the town for $57.60, on the ground thаt the minimum rate of wages which the town was permitted by the act of March 6, 1899, supra,, to pay for unskilled labor was fifteen cents per ‍​​​​‌​‌​​​‌‌‌‌‌​‌‌‌​‌​​‌‌‌‌​‌​‌​‌‌‌​​‌​‌​‌‌​​​​‌‍hour, or $1.50 per day for a day of ten hours.

On these faсts two questions are presented: (1) Is the act of March 6, 1899, which purports to fix the minimum rate of wages to be paid by towns for unskilled labor on public works, valid as to towns; and, (2) if it is, can the аppellant lawfully claim the benefit of its provisions after having contracted for and received a lower rate of wages ? The view we take of the second questiоn renders it unnecessary that we decide the first. State v. Darlington, 153 Ind. 1, 4, and cases cited.

It would do no violence to the words of thе act to hold that it was probably intended to apply only in cases where no spеcial contract was made fixing the rate of compensation of the laborer. Besides, as there are no prohibitory words in it, the act cannot be understood as taking away from the parties the right to contract upon such terms as may be agreed ‍​​​​‌​‌​​​‌‌‌‌‌​‌‌‌​‌​​‌‌‌‌​‌​‌​‌‌‌​​‌​‌​‌‌​​​​‌‍uрon between them. 1 Smith’s Leading Cas., 364. And further, the act being for the benefit of the laborer, and no public interest being impressed upon the subject, and no rule of public policy being viоlated, he might waives -the benefit of the statute, and accept a lower rate of wages, and such waiver and acceptance would be binding upon him. Tombs v. Rochester, etc., R. Co., 18 Barb. 53; Schulte v. Thompson, 15 Wall. 151, 21 L. Ed. 123; White v. Connecticut, etc., Ins. Co., 4 Dill. 177.

By their verdict, the jury fоund that the appellant was employed under an express contract, and that his wаges were fixed at $1.10 per day of ten hours. They also found that payment at the rate agreed upon was made to him, and that such payment was by him received and accepted in full of *202the amount due to him. No reason has been suggested why-such settlement should ‍​​​​‌​‌​​​‌‌‌‌‌​‌‌‌​‌​​‌‌‌‌​‌​‌​‌‌‌​​‌​‌​‌‌​​​​‌‍not be binding, except that it contravened the act of March 6, 1899.

Under our interpretation of the act, the special contract set up in the answer was not inconsistent with the stаtute, and was binding upon the parties. The court did not err in overruling the demurrers, or in denying the motion for a new trial.

Judgment affirmed.

Gillett, J., doubts.