178 Mo. 392 | Mo. | 1903
At the December term of the Osage Circuit Court, 1902, and on the 4th day of said month, the prosecuting attorney filed in said court the following information:
“J. "William Vosholl, prosecuting attorney within and for the county of Osage, in the State of Missouri, under his oath of office and upon his best knowledge,, information and belief, informs the court that on or about the 13th day of June, 1902, at the county of Osage, in the State of Missouri, the firm of H. F. Balch & Co., consisting of H. F. Balch, Leonard F. Motley and Fred K. Balch, did then and there willfully and unlawfully issue, pay out and circulate for payment of wages of labor performed by one A. J. Richardson, to* the said A. J. Richardson, an order, check, note, memorandum, token, evidence of indebtedness and obligation,, non-negotiable and not redeemable at its face value in-lawful money of the United States. That said nonnegotiable order, check, note, memorandum, token, evidence of indebtedness and obligation is in words and. figures as follows:
“ ‘No. 330 on Maries River Works June 13,1902,
“ ‘A. J. Richardson No. 92, has worked as laborer
' iñ the month of June.
9-10ths days at $1.50 per day.................$ 1.35*
......days’ board at ......................$......
......days’ board at ......................$.....-
......days’ board at ......................$.......
......other accounts.......................$......
Total to be deducted...................$......
Balance due...........................$ 1.35-
“‘Why given quit
“ ‘M. Domigonuh, Foreman.
“ ‘Payable July pay day.
“ ‘H. F. Balch & Co., Contractors,
“ ‘F. L. BJ
“That said order, check, note, memorandum, token,, evidence of indebtedness and obligation, so unlawfully issued, paid out, and circulated for payment of. wages-
“J. William Vosholl, prosecuting attorney within and for the county of Osage in the State of Missouri, under his oath of 'office and upon his best knowledge, information and belief, informs the court that on or about the 13th day of June, 1902, at the county of Osage and State of Missouri, the firm of H. F. Balch & Co., consisting of H. F. Balch, Leonard F. Motley and Fred .K. Balch, did then and there issue and cause to be issued, pay out and circulate for payment of wages of labor performed by one A. J. Richardson, to the said A. J. Richardson, an order, note, check, memorandum, token, evidence of indebtedness and obligation which was non-negotiable.
‘ ‘ That said order, note, check, memorandum, token, evidence of indebtedness and obligation is in words and figures as follows :
“ ‘No. 330 on Maries River Works June 13,1902,
“ ‘A. J. Richardson No. 92, has worked as laborer
in the month of June.
9-10ths days at $1.50 per day.................$ • 1.35
......days’ board at ......................$......
......days ’ board at ... ’...................$......
......days’ board at ........■..............$......
......other accounts.......................$......
Total to be deducted...................$......
Balance due........................-...$ 1.35
“ ‘Why given quit
• “ ‘M. Domigonuh, Foreman.
■“ ‘Payable July pay day.
“ ‘H. F. Bax.ch & Co., Contractors,
“ ‘F. L. B.’
“That the said above set-out-note, order, check, memorandum, token, evidence of indebtedness, and obligation, so issued as aforesaid by the firm of H. F. Balch & Co., consisting of H. F. Balch, Leonard F. Motley and Fred TL Balch, for the payment of wages of labor performed by one A. J. Richardson to the said A. J. Richardson was on or about the first day of August 1902, presented at the place of business and office in Osage county in the State of Missouri of the firm of H. F. Balch & Co., consisting of H. F. Balch. Leonard F. Motley and Fred K. Balch, during the business hours of the day for payment in good and lawful money of the United States at' its face value and payment so demanded by L. Well, who had become the owner of the same for value, and said firm of H. F. Balch & Co., consisting of II. F. Balch, Leonard F. Motley and Fred
A motion to quash was duly entered by defendants; at the June term, 1903, which said motion is in the following words:
“The defendants now come and move the court to quash the information filed herein against them for the reason that the same does not charge,any crime against them or either of them.
“And for the further reason that the said information is vague, indefinite and uncertain in its terms, in this, that it does not charge at what day or at what hour of the day or between what hours of the day the.' instrument set out in the information was presented for payment or to whom presented, nor does the information charge in sufficient terms or with sufficient distinctness that the office or place of business of the defendants was in Osage county or where the same was located or kept.
“And for the further reason that the first count in the information upon its face shows that the defendants, did not violate the provisions of article 3, chapter 121, of the Revised Statutes of 1899, of this State, upon which the information is based.
“The order or writing set out in the information is not the kind of an order declared against by the statutes, and for the further reason that the information does not charge the defendants, or either of them, with violating the said article 3 of chapter 121 of the statutes aforesaid, and for the reason further that the
“And for the further reason that the said article, under the provisions of which this information is framed, is in violation of the Constitution of the State ■of Missouri and the Constitution of the United States in this, to-wit:
“1. That all persons have a natural right to life, liberty and the enjoyment' of the gains of their own-industry.
“2. That no person shall be deprived of his life, liberty or property without due process of law.
“3. That they violate that part of the fourteenth amendment to the Constitution of the United States, which declares ‘nor shall any State deprive any person -of life, liberty or property without due process of law, nor deny to any person the equal protection of the law. ’
“Because sections 8142, 8143, 8144, Revised Statutes of Missouri of 1899, upon which the information herein is based, are unconstitutional and void as being in violation of-the constitutional provision ‘that no person shall be deprived of life, liberty or property without due process of law. ’
‘ ‘ The defendants especially move the court to quash the second count in the information charging that they •did ‘issue and caused to’be issued’ a certain order, note, check, memorandum, token, evidence of indebtedness and obligation therein described and set out, for the reason that the law does not by its terms declare against or make or attempt to make it a criminal offense ‘to cause to be issued’ paper of the character therein described.
“And further, because the paper or obligation defendants are charged with issuing and circulating is not, by its terms,' redeemable in anything but lawful money
“And further, the defendants move the court to quash the second count in the information for the reason that the charges against them therein do not conform to or follow the statutes under which it- is drawn, in this, that the statutes, if constitutional, only require the person issuing the obligation therein mentioned to be prepared at all times during the business hours of the day to redeem such order, note, check, memorandum, token, evidence of indebtedness or other obligation, when presented at their place of business or office, at their face value, in good and lawful money of the United States or in goods at the option of the holder, when the charge is that the writing, whatever it is, was issued on the 33th day of June, 1902, was indorsed on the back ‘A. J. Richardson,’ that about the first day of August, 1902, the firm did then and there fail, to be at all times during the business hours of the day prepared to redeem and failed to redeem said order when presented at-their place of business or office ‘ in Osage county, Missouri, ’ at its face value in good and lawful money of the United States, as demanded by L. Well, who had become the owner of the same for value and was the holder, without any reason being assigned for not presenting the same sooner than August 1, 1902, and without charging defendants with failing to be prepared to redeem according to the terms of the obligation which on its face expressed it to be payable July pay day.
“And further, because it is nowhere in either of said counts alleged that the writing was issued for labor performed for defendants, but it on the contrary is averred that the same was issued to A. J. Richardson Un payment of wages of labor performed by A. J. Richardson to the said Richardson.’
“And further .because, they are not charged in either count with acts that would constitute a violation of said article.”
The motion to quash was overruled, and defendants excepted.
The case then came on for trial before the court and a jury, the defendants having never pleaded to the information. The State, to .sustain the issues on its part, introduced H. C. Finch, circuit clerk, who identified the petition, affidavit and attachment bond in a suit of H. F. Balch & Co., against H. H. Wade, filed on the 20th of June, 1902, in the circuit court of said county, and then offered to introduce the papers for the purpose of proving that defendants were partners doing business as H. F. Balch & Go. This was objected to because the papers were incompetent for that purpose, not having been executed by the defendants, or either of them, but all executed by their attorneys, as shown on the face thereof; this objection,was overruled, and defendants excepted. The State then introduced Charles Vermoillen, and in the course of his examination, he was allowed, over defendants’ objection, to detail conversations had with “L. F. Balch and one Mead, ■ clerks,” in absence of defendants, to which exceptions were made at the time. The State was also allowed to introduce in evidence, without proof of execution, a paper which was a copy of the instrument set out in the information, to which defendants objected and' excepted at the time.
Both witnesses gave the date of demand for payment at the camps or offices as July 8, 1902, when the charges in the information is that the demand was made on or about August 1,1902.
This substantially was the testimony of the State, and when the State closed, defendants asked an instruction in the nature of a demurrer to the evidence, which was refused, and to which exceptions were then taken. The defendants then asked the court to instruct the jury as follows:
“1. The court instructs the jury that under the information and evidence in this case the defendant can not be convicted and they will returñ a verdict of not guilty. '
‘ ‘ 2. The court further declares the law to be that the statute, sections 8142, 8143 and 8144, Revised Statutes of 1899, is unconstitutional and void, as being in violation of the constitutional provisions that no person shall be deprived of life, liberty or property without due process of law, and for that reason the jury will find the defendants not guilty.
“3. The court declares the law of this case to be that it is not unlawful to issue or give out for labor the instrument of writing read in evidence to the jury. ”
Which instructions were refused and defendants excepted at the time.
The court instructed the jury as follows:
“In the Circuit Court, June term, 1903.
“For the purpose of this case under the evidence given, the court declares the law as follows:
“The order, note, check, memorandum, token, evidence of indebtedness, set out and described in- full in the first count in the information and read in evidence to the jury, is such a paper and writing as is forbidden by law to be paid out or put in circulation by anyone for the payment of wages due for labor; if the jury believe from the evidence beyond a reasonable doubt that the defendants at any time within one- year next before the filing of the information in this case, being a firm under the style and name of H. F. Balch & Co., at the county of Osage and State of Missouri, intentionally, for the payment of wages of labor, did pay or did cause to be paid out or did issue, or did cause to be issued, or did circulate or did cause to be circulated, said check, or token, or evidence of indebtedness read in evidence as aforesaid, then the jury will find the said defendant guilty in manner and form as charged in the information, and will assess the punishment of such defendants at a fine of- a sum not less than fifty nor more than five hundred dollars; or by imprisonment in the county jail for a period not exceeding twelve months, or by both such fine and imprisonment.
“And the court further declares that if from the evidence beyond a reasonable doubt the jury shall believe that on the 8th day of July, 1902, at the place of business and office of the defendants in the county of Osage, in the State of Missouri, one L. Well, was then and there the owner and holder of the check, or evidence of indebtedness described in full in the first count of the information and read in evidence to the jury, and
“The law presumes the innocence of all persons" charged with crime, and if the jury have a reasonable' doubt of the guilt of the defendants the jury shall acquit; but a doubt to authorize an acquittal on that ground should be a substantial doubt, touching the guilt of defendants, and not a mere possibility of innocence.”
To the giving of which defendants objected and excepted at the time.
The jury returned the following verdict: ■
“State of Missouri, vs. “H. F. Balch & Co.
“We, the jury, find defendants guilty on the first count and assess their punishment at four hundred and twenty-five dollars each.
“Fred Ebert, Foreman.” And' thereupon the following judgment was rendered :
“State of Missouri, plaintiff, vs. “H. F. Balch, F. K. Balch and L. F. Motley, defendants.
“Failure to redeem checks for labor, etc.
“And now comes the jury herein, ¥m. Owens, John 0. Laughlin, Fritz Griechen, D. L. Haynes, Fritz Held, August Stock, Joseph Chapman, Earbst Placial, Fred Schmitz, Fred Ebert, ¥m. Dahms and John Stock, and return the following verdict:
“ ‘We, the jury, find the defendants guilty on the first count and assess their punishment at $425 each, and we find defendants guilty on the second count in the information and assess their punishment at $425 each, í “ ‘Feed Ebeet, Foreman.’
: “It is thereupon ordered and adjudged by the court that the State of Missouri have and recover (for the benefit of the public school fund) from defendants, H. F. Balch, L. F. Motley and F. K. Balch, the sum ■of $425 each, the amount of' the fine in the first count in the information, as well as all the costs in the case laid out and expended.
f . “And it is further ordered and adjudged by the court that the State of Missouri have and recover (for the benefit of the school fund) from defendants, H. F. Balch, L. F. Motley and F. K. Balch, the further sum of $425 each, the amount of the fine in the second count in the information, as well as all costs in the case laid out and expended.”
On the same day defendants filed motion for a new trial as follows:
“State of Missouri, plaintiff, vs. “H. F. Balch, L. F. Motley, and F. K. Balch, defendants.
“Now come the defendants and move the court to set aside the verdict therein rendered and grant them a new trial for the reasons following:
“1. The court erred in permitting the State, over the objections of the defendants, to introduce improper, incompetent and irrelevant testimony to the great prejudice and injury of the defendants.
- “2. Because the court allowed and permitted the State, over the objections .of the defendants, made at the time, to introduce hearsay testimony.
“3. Because the court refused to quash the information against the defendants as prayed and moved by defendants and overruled defendants’ motion to quash the information, and because no issue was joined in the case.
“4. Because the court refused to give an instruction in the nature of a demurrer to the testimony as asked by the defendants at the close of the testimony offered by the State.
“5. Because the court refused instructions numbers 1, 2 and 3, asked by the defendants, to be given to the jury for their guidance.
“6. Because the court gave wrong, improper and-harmful instructions to the jury, over the objections of the defendants made at the time.
"7. Because all the instructions given by the court to the jury are wrong and improperly directed the jury as to their duty and were given against the defendants ’ objections made at the time they were given.
‘ ‘ 8. Because the verdict is against the law and the evidence and should have been for the defendants, and because there was no evidence to sustain the verdict.
The motion was overruled and defendants excepted. Defendants on same day filed a motion in arrest as follows:
“In the Circuit Court of Osage county, Missouri, June term, 1903.
“State of Missouri, plaintiff, vs; “H. F. Balch, L. F. Motley and F. K. Balch, defendants.
‘ ‘ 1. The defendants now come and move the court to arrest the judgment herein for the reason that their information on which they were tried does not charge any crime against the laws of this State.
. “2.. Because the statute under which the defendants were proceeded against is contrary to the provisions of the Constitution of the United States and the State of Missouri, and therefore void and of no force and effect.
“3. Because upon the face of the record the defendants are not charged with or guilty of any violation of the laws of this State. And because there was no issue joined for the court or jury to try.”
I.
Various errors have been urged for a reversal of the judgment of the circuit court.
The statute upon which this prosecution is predicated was enacted in 1895. [Laws 1895, p. 206; R. S. 1899, secs. 8142, 8143, 8144 and 8145.]
Section 8142 provides that “it shall not be lawful for any person, firm, or corporation in this State to issue, pay out or circulate for the payment of wages of labor, any order, note, check, memorandum, token, evi
Section 8143 provides that “all persons, firms or corporations issuing or circulating any such order, note, check, memorandum, token, evidence of indebtedness, or other obligation, shall be at all times during the business hours of the day prepared to redeem, and shall redeem, all such orders, notes, checks, memorandum, tokens, evidences of indebtedness, or other obligation, when presented at their place of business or office, at their face value, in good and lawful money of the United States, or in goods, at the option of the holder. ’ ’
Section 8144 provides that a violation of the fore-' going sections shall constitute a misdemeanor, and affixes the punishment at a fine, or imprisonment in the county jail.
At the threshold arises the question, is the account or exhibit incorporated in two counts of the information such an order, note, .check, memorandum, token, evidence of indebtedness or other obligation as is contemplated by section 8142?
That it is not an order, note, check or token, is undeniable.
Is it such a memorandum or evidence of indebtedness or obligation as said section contemplates?
In the construction of any statute, the history and reason of its enactment may always be invoked in its construction. The underlying purpose of this act unqustionably was to remedy what the Legislature- deemed was an evil in the company stores or “truck system” resorted to by corporations and individuals employing laborers whereby the employees were practically compelled to purchase their supplies and expend their wages for goods and supplies furnished by their employers, greatly to the disadvantage of the employee.
It was obviously intended also to obviate the con
The Legislature in this act has avoided one of the grounds on which the Loomis case rests, to-wit, class legislation.
This act, unlike 7058 and 7060, Revised Statutes 1889, is not restricted to “corporations or persons engaged in mining and manufacturing, ’ ’ but applies alike to all persons, firms and corporations. It was well known that, as in the Loomis case, different mining and manufacturing companies had resorted to a practice of issuing in payment of wages, scrip, punch-outs, orders and tokens, to their employees, which were redeemable only in goods, wares and merchandise at the stores of said companies, and on their face non-negotiable and uncollectible in money at their face value.
Accordingly, this act was passed to correct these practices. It is to be noted, first, that it prohibits any person, firm or corporation from issuing any such order, note, check, etc., for the payment of tvages of labor, unless the same is negotiable and redeemable at its face value in lawful money by such person, firm or corporation.
This is a criminal prosecution and the act is to. to be strictly construed in favor of the defendant and against the State.
Was it the purpose of the Legislature to say that no person, firm of individuals or corporation in this State, if one of their employees quit their service at any time and for any good reason, in auditing his account could render him an account stated to the time he quit without subjecting such person, firm or corporation to a criminal prosecution under this statute?
Such a construction in our opinion would be utterly unreasonable and subversive of all the business habits
Men must be allowed to- adjust their differences. Take the case before us. There is not the slightest evidence that the defendants issued this statement of Eichardson’s account to him as and for payment of their indebtedness to him. It was nothing more or less than a statement by one of their foremen that Eichardson had worked nine-tenths of a day in June at the rate of $1.50 a day, and that the amount due him was.$1.35, and that it was given to him because he had quit work, not issued, paid out or circulated in payment nor for payment of his wages. It simply showed what amount of work he had done and what was due him therefor.That such an account was negotiable in the sense that it was assignable there can be no doubt. There was nothing on it to restrict its assignment, and nothing to indicate it-was not to be paid in lawful money at its face value.
The statute does not prohibit an employer from giving his note or check for wages earned by his employee provided such note or check is negotiable and redeemable in money, and without doubt he is not guilty of a violation of this statute unless he does issue or pay out such note, check, memorandum, or evidence of indebtedness in payment of, or for payment of such wages. While in this case the pleader charges such was the case, he further sets out the exact instrument which he alleges was issued to Eichardson and thus has restricted his charge to that, and as we have seen it is not such a note, check or other evidence as was contemplated by the Legislature, but is in substance only a certificate by a foreman of the amount of work done and the value of it for the information of his employer when pay day arrived. On the contrary it states on its face it is payable the next pay day. The second count, based as it is on the same account stated, obviously is no better than the first, because unless it was a note, check
II.
But again. The information is fatally defective as a criminal pleading. In such case nothing is left to intendment.
Now, there is no allegation that Richardson was in the employment of defendants or that the note, check, etc., was issued to him for wages for labor, performed by said Richardson for them. The underlying purpose of the act is to protect employees from unjust practices of their employers. The pleader has not brought his case within the statute. While not insisted on by defendants, we observe that this information is not verified in any manner as required by sections 2477 and 2478, Revised Statutes 1899, as amended by the Acts of 1901 (Laws 1901, pp. 138 and 139). [State v. Bonner, 178 Mo. 424.]
III.
We are asked to declare the said sections unconstitutional, but it is always a serious matter to declare an act of the General Assembly unconstitutional, and it should never be done save for grave reasons. Inasmuch as this case can be disposed of without passing-on the constitutionality of the act and as in no event can this prosecution be maintained, we must decline to go into the constitutionality of the sections mentioned.
The judgment of the circuit court is reversed and the prisoners discharged.