248 Mo. 113 | Mo. | 1913
Lead Opinion
This cause had its origin in the police court in and for the city of St. Louis, by information as follows:
To the Police Justice of the Second District Police Court of the City of St. Louis, Missouri, March 20, 1908.
State of Missouri, \ gg City of St. Louis. I
City of St. Louis, March 19, A. D. 1908.
Cus Bender.
To The City of St. Louis, Dr,
To one hundred dollars for the violation of an ordinance of said city, being Ordinance No. 23007, Chapter —, Article —, Section 10.
Approved April 1, 1907.
In This, To-wit: In the city of St. Louis, and State of Missouri, on the 19th day of March, 1908, the said Cus Bender did then and there engage in and work at the business of plumbing as journeyman plumber without having secured a certificate of qualification or license as required to do, and not being an apprentice, to-wit, at and in the building, No. 3207 Cass avenue, contrary to the ordinance in such cases made and provided. E. P. CS.EECY,
Chief of Police of the City of St. Louis.
In the police court the defendant was convicted and fined $100. From that judgment he appealed to St. Louis Court of Criminal Correction. In the Court of Criminal Correction the record discloses that defendant interposed a demurrer to the complaint, thus stated:
“Now at this day comes defendant and demurs to the information herein for reasons following:
*116 “First. The information fails to allege facts sufficient to constitute an offense.
“Second. The information fails to allege facts sufficient to show a violation of ordinance number 23007, section 10, approved April 1,1907, of the city of St. Louis.
“Third. Ordinance number 23007, section 10, of the city of St. Louis, upon which the information herein is bottomed, is unconstitutional and void.
‘ ‘ Fourth. Because said ordinance is in violation of section 30, article 2, of the Constitution of Missouri.
“Fifth. Because said ordinance is in violation of section 1 of the Fourteenth Amendment to the Constitution of the United States.'
“Sixth. Because under the charter of the city of St. Louis the Municipal Assembly has no power or authority to pass said ordinance.”
This the court overruled, and thereafter on the same day a trial by jury was waived and the cause tried out upon the facts by the court, who at the end of the trial, after some days’ considération of the law and facts, entered a judgment discharging the defendant.
From this judgment the city of St. Louis sued out its writ of error here, and the proceedings of that court under the writ of error is the case now here. Further facts and the points made will be noted in the course of the opinion.
“Any person, firm or corporation or the agent or officer for any such person, firm or corporation, who shall engage in or work at the business of plumbing in the city of St. Louis, except apprentices working for duly licensed plumbers, without first having been duly licensed as required by the provisions of this ordinance, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than ten dollars nor more than one hundred dollars for each offense. ’ ’
It will be noticed that this ordinance excepts “apprentices,” and the meaning of this term as it appears here, and as of course it must be determined from the whole body of the act, is one of the questions in the
“Direct Examination, by Mr. Rowe:
“Q. What is your name? A. Gus Bender.
“Q. How old are you? A. Thirty-two.
“Q. Were you working at this on the 19th day of March at the building 3207 Cass avenue? Á. Yes, sir.
“Q. Now state what you were doing there. A. I was getting the soil pipe ready; that is, Mr. Hobein just had taken me there to give me the instructions what I should do—
“Mr. Arnold: Well, I object to that.
“A.-and just as he left these fellows came in—
££ Mr. Arnold: Hold on there. Just a minute now.
“By the Court (Q.): What instructions did he give you? A. To run pipe. How I should run the iron pipe up — soil pipe. When I hired myself out to Mr. Hobein he asked me if I was a. plumber. I told him no, I failed to pass the examination, but he seen I had to have some ex-*119 perienee and from instructions I could go on with the work. I showed him who I worked for before he said all right, and every day he came to look at my work. I served under his instructions and was working at the soil pipe about fifteen minutes when these fellows came in. They asked me if I was a plumber. I said yes, I am doing plumbing work here and serving an apprentice under instructions,' and one, this fellow here, he got the policeman, and when the policeman came to me I showed him a letter Mr. Hobein had written to me to show I was working as an apprentice. The letter didn’t do any good. He took me to the police station, anyhow.
“Q. How long had you worked at the plumbing trade? A. I worked at the plumbing trade about a year on the outside.
“Q. Now, what actual plumbing work did you do on this building, 3207 Cass avenue ? What was it that you actually did in the way of plumbing work? A. I just had cut one length of pipe, that’s all I had done when these fellows came in.
“Q. Had you made any connections of any kind? A. No, not there.
“Q. And you had done no plumbing work at all there, had you? A. Not right then, I just had got started.
“Mr. Arnold: That calls for a conclusion, of course.
. “Mr. Rowe: Well, I am asking him what plumbing work -he had done there, that’s what the court wants to know. What plumbing work there, if any, had you done in that building? A. Just had cut one length of pipe and started the furnace. That’s all I had done.
“ Q. Now are you learning the trade of plumbing? A. Yes, sir, I am learning it.
*120 “Q. And. who are yon working under? A. I am working under Mr. Flagg, under instructions right now.
“Q.- And that was all the work that you did on this occasion, was it? A. Yes, sir.”
His cross-examination does not shake this portion.
By the record the city undertook to have experts to testify that an apprentice meant an “articled boy” under the age of twenty-one, or rather from fifteen to sixteen years of age, and that as such he could not do the work which defendant was then doing. It should be said that the proof is not very pointed for the city upon this point, and it relies now more upon what is called a technical definition of “apprentice” than upon this testimony. That the city did not seriously question that Hobein was a licensed plumber is apparent from the manner in which the case was tried. It was tried upon the theory that such fact was not really material, and the argument in this court for the city was to a similar effect. The position of the city is further emphasized in their brief in this language:
“The judgment of the lower court should be reversed and the ease remanded because, after plaintiff had shown and the defendant had admitted that he was doing plumbing work, at the time and place of his arrest, defendant wholly failed, in fact made no attempt, to prove that his alleged employer, for whom he said he was working as an apprentice, was a licensed plumber. However, as this will be considered a test case and of great importance to the people of St. Louis generally, and especially those engaged in the plumbing business and the city authorities having in charge the enforcement of municipal regulations, we respectfully urge the court to give its construction of the word apprentice and the phrase in which that word is used, so that all may know what that word and phrase mean. In other words, we wish the court to define who is an*121 apprentice within the meaning of the ordinance and the character of plumbing work he is authorized to perform. ’ ’
Whilst the city in the paragraph just quoted in a way seems to suggest that the defendant had not made proof of of his employer’s license, yet it is apparent that such was not the theory below, and we have no doubt that, in addition to the evidence in the record tending to show that Hobein was a licensed plumber a reversal of the case for that purpose alone would only result in such a showing; we are, therefore, inclined to proceed with this case upon the idea that such a license was. shown by the license itself. So much .is indicated by the brief of plaintiff in error. Plaintiff in error knowing the record does not seek to stand upon the question under the proof, but seeks to have us go to the legal question. This we will do. Now to state this legal question it might be well to shorten up a little. Verbosity is to be avoided even in court opinions. In the process of shortening the proposition, we can well state it thus: The ordinance in question excepts apprentices. Defendant, although thirty-two years of age, was working under a licensed plumber, with a letter of apprenticeship to that effect. Defendant so testified as to his authority to work and the trial court had the right to believe his testimony and discharge him from the charge. If error was committed at all it was the meaning which-the trial court gave to the word ‘£ apprentices ’ ’ in this ordinance. If he properly construed the ordinance in holding that the defendant fell within that term, then there was ample evidence authorizing his discharge. Defendant testified that he was working under Hobein and that Hobein had designated the particular work he was doing upon the occasion of his arrest. In other words, there is ample evidence in the record for the trial court to find that defendant was an apprentice of Hobein, if a man of his age and circumstanced as was
At the early common law the word apprentice had a specific meaning. It no doubt referred to minors who could be “bound” or “articled” to some mechanic, versed in his trade, there to receive instructions and to work under the supervision of such mechanic until he could do all work in that trade, from the lowest to the highest. The law did not preclude the apprentice from actually doing all grades, of work, but it did ■contemplate that he would do it under the supervision of his “tutor,” the man to whom he had been bound for the usual term. Nor can it be seriously questioned that at these early days the apprentice was presumed to be a boy of such age that the term of his apprenticeship would terminate about the time of his. majority. Case law of this kind is at hand and the brief of the city is not without such authority.
But the question here is not what the term “apprentice” formerly meant, but what it means now, and meant at the time the ordinance in question was adopted. We concede to the city the old time definition of “apprentice,” but is that the present meaning of the term? In other words, in modern law was it ever contemplated that men over the age of twenty-one could not learn a trade by becoming an apprentice to one who knew the trade? We should be slow in holding that only boys can become apprentices. We should not bar the open field of the “trades” from all men; if they proceed, to enter them within the spirit of the law. What has been law may not be law how. Under the old law boys were bound out to tradesmen for a term of years on conditions and terms, fixed largely by the customs of the community. When these boys had served the term and received in person, or through the parent who “articled” them, the pittance due, they were presumed to know the intricacies of the trade. But in learning these intricacies even the boys had
We therefore conclude that in the case at bar the St. Louis Court of Criminal Correction had ample evidence in the record upon which to base the judgment of acquittal which was entered. In this state of the record, the judgment should be affirmed, and this too without reference to the intricate questions (if they be intricate) raised by the demurrer. Let the judgment be affirmed.
Concurrence Opinion
CONCURRING OPINION.
Its technical definition is: One who is bound by indenture to a master for a specified time to learn the art or mystery of some trade, craft, profession or business in which his master is bound to instruct him. Even husbandry or housewifery might be such business.
The-question is: Should we give the word “apprentice” in the ordinance the elastic breadth of its usual and ordinary meaning in common conversation or give it the rigidity of its strict technical meaning?
Youth being the usual season of learning, the idea of an apprenticeship often carries with it a tang or suggestion of youth, but not necessarily so even in the
In an interesting case in Florida the court had in judgment (State ex rel. v. Jones, 16 Fla. 306) the meaning of the term “a regular apprenticeship.” In that case, on a consideration of English cases and on the reason of the thing, it was held that an apprenticeship did not necessarily import a contract by way of indenture. The same distinction was drawn .in North Brunswick Township v. Franklin Township, 16 N. J. L. 535.
For the reasons stated by my brother and these additional ones I vote to concur.