State v. Day-Brite Lighting, Inc.

injuries hand, He testified his head, leg knee, ivere to his left and jumps place casualty. which out of He a ever since had hole in his head and still has face; upset, scars on his head and nerves his are and he has constant headaches and sleep. cannot physicians surgeon Two respondent apparent- one testified for — ly mainly as experts, injured he was since on 1948 and the June first of medical him nearly these men did not see six until months later, December, 1948, in April, July four times thereafter in November, 1949. physician October, One first him in examined other, specialist and the a diseases, April in nervous and in mental 10, 1949, days and on November four trial. All of the before the physicians thought injury respondent’s permanent. knee was surgery One said necessary would injury be restore nerve hand, might his and that successful. partially Another he post-traumatic said had suffered a anxiety, manifested neurosis depression rays X degeneration bone headaches. showed some vertebra, sixth permanent, cervical would be as would which pain the head and neck. the verdict Ta-

Respondent question cites of excessiveness of on G., SW.(2d) M. 726-9(11), tum & Rd. 359 Mo. O. spine $50,000 injuries to the

426-8(12), where a verdict for a was ordered re- pelvis bridge, of a brakeman off railroad fell who $42,500. injuries $7,500 by standing duced remittitur and left in that were not the same here. the discussion case there But Mo. 1. c. the view taken 720(1), (2d) 1. c. 223 SW. [359 421-2] Supreme regarding United States decisions narrow latitude Court appellate reviewing liability questions allowed courts in close Employers’ decided'by juries, Liability Federal cases trial courts and shrinkage precedents worthy of note. view of these and the dollar, ordering purchasing power justified we do not feel judgment All con- remittitur, below is affirmed. further and the cur. Day-Brite Inc., Missouri, Plaintiff, Corpora Lighting,

State poration, Defendant, (2d) No. 41979 240 S. W. 886. banc, June 1951. Court en Denied, July 9, Rehearing Louis Portner, J. Cobb, Blake, Armstrong, Boos, & Teasdale Thomas

H. Henry Cobbs and appellant. C. M. Lamkin for Attorney Baty, B. Taylor, General, and John Assistant At-

J. E. torney General, respondent. from a convic

HOLLINGSWORTH, appeal is an J. This defendant- which tion in the Louis Court Criminal Correction St. adjudged designated defendant) as appellant (hereinafter dollars for violation of Mo. R. S. a fine of one hundred Section agreed The two tried on an statement of facts. The case was A. (a) support the facts questions for determination are whether part.of the section under which de (b) whether verdict rights of is violatiA^eof the constitutional was convicted fendant guaranteed it under the Constitutions of the United as defendant and the State of Missouri. States (Laws 108), p. enacted in 1897 Section. 1] [Section “Any any in this person entitled to vote at state

reads: day election, himself from shall, on the of such .be to.absent entitled any engaged employment employed, services or in which he is then or closing period opening of four hours between the times of not, absenting himself, polls; and voter shall because of so such any Provided, however, employer may penalty: liable to that his during employee may such absent as specify the hours which himself Any person corporation or who shall refuse to em- aforesaid. hereby conferred, discharge- or shall or ployee the threaten absenting discharge any employee for from his work for himself election, any employee of said or shall cause to suffer purpose penalty privilege, or because the exercise of such deduction of. shall, directly indirectly, provisions violate the of this or who * * misdemeanor, guilty of a section, be deemed shall originally filed, charged information, defendant in count refusing permit (Fred Grotemeyer) its one with C. period for a of four employment from his hours absent himself between the of opening time and closing of the polls general on the day November 1946; in count two with penalizing him by deducting from salary his the amount of his earnings for the time he was absent from his work on day. that Defendant’s conviction under count two is the basis of appeal. For a history prior case to this appeal, see Day-Brite State v. Lighting, Inc., 220 S. W. 2d 782.

Defendant, a Missouri corporation, operated a manufacturing plant in the City of St. Louis and products its “moved in interstate com- merce”. Fred Grotemeyer O. was and for years several prior to November 5, 1946, had been in its employ. He was a member of Local 1,No. International Brotherhood of Electrical Workers, which had a contract with defendant covering wages, hours and working other employees. conditions of its A work week consisted forty hours, divided eight into days. five hour Grotemeyer paid was hourly on an basis at the per rate of $1.60 hour for each hour worked. His work day began at 8 :00 a. m. and closed p. m., at 4:30 with a period lunch thirty minutes from 12:00 12:30 noon. He was to receive actually for hours worked. The provided rules of defendant employee, that no except in cases of or emergency, sickness should be absent from permission. work without day prior general

On the to the 5, 1946, election of November Grotemeyer, qualified election, who was in per- to vote asked period mission to absent himself for of four hours between the day beginning campaigning, end of his scheduled work “to do refused, request get specific the vote”. This was and to out vote day posted on its bulletin board a notice on that but defendant day (including Grotemeyer) on the shift permitting employees all m., This was p. at :00 on November 5th. oft' to vote to take time normally Grotemeyer’s day earlier than work one-half hours one and employ- him from his end, permit to absent himself but it did Would closing opening hours between for four consecutive ment p. 5th, a. m. and 7:00 m. On November polls, which were 6 :00 employment p. himself from his 3:00 m. Grotemeyer absented only for paid defendant those hours voted. He thereafter hours, 5th, to-wit: six and one-half or the time November worked on thirty p. m., period. less the minute lunch to 3:00 from 8:00 a. m. employees fifty-eight of defendant’s worked at One hundred $1,089 p. m.; fifty- from m. to hourly rate of 8:00 a. 4:30

average average hourly at an rate of employees $1.03 worked 7:0O eight employees average hourly worked at an p. m., and seven a. m. to 3:30 p. m. The total amount of a. m. to 3:00 from 7:00 rate of $.8646 working, if all took four hours off from paid employees all vote, $951.42, day would be and four hours of work scheduled amounting April, would have resulted. $7138.00 production loss hourly-paid employees 230,600 the State of Mis- were there engaged manufacturing 729,600 employees souri industries and non-manufacturing hourly industries, average earnings and the $1,302. employees manufacturing these industries was agreed under the Defendant’s first contention state argument no Its ment of facts violation of 11785 was shown. Section charged runs in wise: is defendant threatened to dis “It not Grotemeyer charge discharge subject any penalty or him to or or did wages deduction of earned because of the exercise of the voting. Grotemeyer of him paid was the amount due for the he work Day-Brite Lighting, penalized did for Inc. He was not for voting ’’ for taking voting. time off for is It is This contention not sound. the clear intendment of the employee paid during act that the shall be as his authorized absence though Otherwise, course, he had worked. of there could be neither penalty impossibility nor deduction. be an would for the two necessary offense, of the from elements to-wit: absence work and de- wages during absence, duction of such ever come into coexistence Regardless under validity defendant’s contention. of act grounds, meaning on constitutional its is clear and of the deduction Grotemeyer’s one and one-half hours from was a of violation its terms. grounds challenges on which defendant the constitu

tionality (1) of Section are: process violation of the due States, clauses of the Constitution of the United as defined in Section Amendment, 1 of the Fourteenth and the of Constitution of the State Missouri, I; (2) as defined in of equal Section Article denial of the protection persons of the laws to all jurisdiction, within its de- as fined in Section 1 of the Fourteenth of Amendment the Constitution of the United States and of 14 of of Section Article I the Constitution (3) impairment of of Missouri; obligation of guar- contracts anteed Section 10 of Article I of the Constitution of the United States and 13 of Article of Missouri; Section I the Constitution of and (4) violation of 28 of Section Article IV of the of Constitution 1875, Missouri of and of 23 of Section Article III the Constitution 1945, which provide Missouri that no shall bill contain more subject, clearly than expressed one which shall be in its (There title. general claim unconstitutionality another which we consider inadequate disposed and which is herein.). later

The state contends defendant has properly not question raised the constitutionality. Each of these grounds, with exception mentioned, particularity timely was set forth with in a motion to quash, trial, the motion for new and in defendant’s brief. That is A.; Hammer, sufficient. Mo. R. S. Section State v. 333 Mo. Especially S. W. 2d 966. is this true where it Is evident record the entire that the issue before either the trial court except court, or this that the facts did support verdict, was constitutionality under which defendant part of that of the section charged. City Friedman, 681, 685, 216 Louis v. 358 Mo. St. S. W. 2d apparent

It is is violative of the due Section 1.1785 clauses of both the Federal and unless its en State Constitutions police power actment is within the of the State. statutes, dealing placed has brief a State its tabulation days. employees on election to absent themselves employer to dock the em-

Sixteen states make it unlawful for the California, ployee’s wages during absence, Arizona, such to-wit: Nebraska, Illinois, Indiana, Iowa, Kansas, Minnesota, Missouri, New Virginia and Mexico, York, Ohio, Dakota, Texas, New South West no shall be AVyoming. provide and Utah statutes that there Colorado states dockage paid the hour. Six except when the days, provision with no authorize absence of the on election relating to Kentucky payment wages. Illinois and statutes A New subject matter been held unconstitutional. the same have York statute has been held constitutional. Chicago, strongly upon People the case of v.

Defendant relies 155, 28 Railway Co., 486, Paul 306 Ill. 138 N. E. Milwaukee St.& a similar to Section 610. It held unconstitutional statute A. L. R. with grounds deprived property of its 11785 on that it the law, equal protection of the and was process out due of denied laws opinion abridgement right of to contract. That unreasonable the interesting 1944, It is to note that in the same was written 1923. urged court, referring opinion, to its .1923 commented: “It is that may money use private property private not take nor for a the State ** Chicago, Co., *, People and the case of v. M. and P. R. 306 St. 158, 610, support of 486, 155, E. 28 A. L. R. is cited Ill. 138 N. such re-enacted and contention. amended from time to ^{[*] [*] [*]} However, time, [pay-while-voting] statute, still contains this pro providing right paid for the of citizen to be for the time vision * * * growing exercising right his to vote. The consumed in inevitably has to an in of our economic interests led complexity protect regulatory of measures order to individual creased use the good by safeguarding is reassured the economic public so that the good depends.” Zelney Murphy, of all upon which the v. structure 492, 754, 2d Ill. 56 N. E. 757. 387 Illinois also cites the case of R. Co. v.

Defendant Cent. Common wealth, Ky. 632, Ap W. 2d in which of 204 S. the Court 305 Kentucky pay-while-voting a statute of that state held peals of decision in this on case based the 1923 unconstitutional. great length sanctity It extols the of the Illinois decision. part constitutional privilege and holds of the statute voting right period the to absent himself for a of four giving the day, but condemns as violative of due the hours on wages doing. making a misdemeanor withhold his for so it part opinion makes contention states: “The the Commonwealth onr legislative authority right, the of its had a under exercise police power, adopt adoption law in- its was in question, the since * * * general public. However, the interest of the the welfare of legislative authority may we have not, said that under guise promoting public interest, arbitrarily private interfere with City Kuhn, Ky. business. 2d Louisville S. W. always And it appropriate police power is remember that may limitations, clearly unreasonably not. without its since private guaranteed invade rights and violate those which are under either federal state Thus, constitution. 11 Am. Jur. 992.” goes opinion premise conclusion, with no statement reasoning by which it helpful. was reached. It is not against Kentucky

As cases, Illinois the state cites case People Ford Motor Appellate decided Division Supreme App. of New Court York Div. Y. 2d 63 N. S. 697. That case held constitutional a New York statute which makes voting it misdemeanor to refuse an or to exercising deduct from his privilege. quote portions We question, of it:. “The statutes in in force for more than half a cen- tury, directly deal a detail as to the exercise of the elective subject which, franchise—-a matter under our form of government, primary is in itself a of sovereignty. act To take measures insure performance the full free of that act is therefore in the interest general welfare, may such call ‘society’s said to forth right natural self defense’ which in sovereignty inherent itself * * * generally and which been police has termed power. employer-employee “An relationship may be said to have in it such power part of dominance on the the employer capable as is thwarting the right exercise of the wholesome to vote at an election. The fact that such have abuses occurred is historical. To avoid such evils, encourage suffrage, pristine to keep it and render pertains this public and, it to efficient—all the welfare in the attain- objectives, of ment those the burden which upon the statutes cast all employer lawfully the is placed in role of one in a design for the good, slight may common and is the burden so that it not be said to be unduly oppressive. may the That burden bear unequally does not ’’ placement render its unlawful. precise police power of is

A definition not found. “It is not sus- ceptible precision of circumstantial because none can foresee the ever- changing call conditions which for its Moreover, exercise. has it been inadvisable, render held accurately.” these conditions to power define the Jur., 11 Am. Law, 246, Constitutional pp. 970, 971. § ‘ n ‘Judge- Cooley says police power that the of a state ‘embraces its system regulation, whole internal which the state seeks not preserve public prevent and against order offenses the state,

309 but also to establish for the intercourse of citizens with citizens those good rules of manners good and neighborhood which are calculated prevent a conflict rights, and to insure to each the uninterrupted enjoyment of his own so far reasonably as is consistent with a like enjoyment rights by others,’ and quoted the courts have this definition approval many Finally, times. it has been said that power means of this legislature supervision exercises a over matters involving the common welfare and observance,' by enforces the each individual member of society, of the which duties he owes others and to community large.” 247, pp. 972, Id. § Discussing police power, in court said Household Finance Corporation Shaffner, 808, 818, v. W. 2d 356 Mo. 203 S. 734, 3, 739: I, police power “Section of the Article states that the exclusively XI, people; 3, state remains Article and Section provides police power that ‘the state shall-never exercise of the a constitution principle surrendered’. It is familiar that ‘the state grant legislature is power, only limitation, but as far as the imposed concerned’; and, therefore, limitations except for the thereby power practically legislature ‘the of a is unlimited and state 894, absolute’. 11 Am. Jur. Sec. 193.” police power frequently legislation the state is invoked

relating physical safety employees to the economic welfare and public general, expense all of which are an or manufacturer; legislation uniformly constitu and such held principle. laws, tional in compensation Some of them workmen’s are: unemployment wage compensation laws, semimonthly payment of laws, wage laws, laws, minimum Sunday and hour labor great multiplicity safety referred to and health See cases laws. Day-Brite Lighting, Inc., 784; State v. supra, 1. c. Carmichael 495, Southern 1245; Coal & Coke 301 U. L. Ed. S. 81 Steward Davis, Mach. v.Co. L. U. S. S. Ed. Ct. 1293; A. L. Haskell, R. Noble Bank State 219 U. S. 31 S. Ct. 186, 55 L. Ed. 112.

If physical citizenry the economic and welfare of the is within the police power state, political protection then welfare merits its right suffrage sovereignty also. The of universal is the attribute of people. verity a free accept vigilance We as a that “Eternal is the price liberty”. majority only opportunity For the vast vigilance polling place. exercise that is in the every given

“That right oppor- citizen should be both the and the tunity public interest, having to vote is a matter of law purpose guarantee opportunity its of such should be upheld possible legislative if it is to do so. Such we take it purpose purpose of the enactment of 11785. And the Section legislative financially place an intent was not to enrich the voter or to * * *” unnecessary employer. and unreasonable burden on the Day-Brite Inc., State v. Lighting, supra, 1. c. 785. ‘‘ argues deprived property

Appellant Company that: tangible property, deprived two kinds under this Statute. is, money employees for work not pay that it is forced to to its * * * nothing. If performed Company and for which receives scheduled employees granted pay all from the were four hours off by way of day Company work it would cost in this case $951.42 for loss of pay employees of $7138.00 to its and an additional sum production.” thereby necessarily follow, however, act is

It does not have little figures quoted above rendered unconstitutional. probative tending They show, any evidence value. do not nor is there relationship to percentage-wise , to show—either or their otherwise— products. the overall cost of defendant’s “Pay Voting” subject In a on the While well documented article 140, 1947, page Law the writer makes the Columbia Review voting may wisdom of while stat- statement: “Whatever be the utes, they arbitrary as to violate due appear do not so or unreasonable employer is relative- requirements. imposed The burden on the ’’ ly vote, relatively high. slight subserved, right the interest are held in infrequency

When we with which elections consider the days year, we cannot comparison working with the total a calendar say employers placed law on as matter of that the economic burden by this statute is unreasonable. open guaranteed

To secure the our State Con- free and elections II; (Constitution stitutions Art. Sec. Constitution Assembly (Laws I), legislation Sec. enacted Art. the' General 1893, p. 157) prevent corrupt practices in elections. Section in, (Laws 1897, act, p. 108) was not in that but it was Legisla- present amended to include to 11787. The Sections 11785 ture, effect, thereby adequately secure declared that in order to more open require employers to expedient free and elections it was only employees opportunity afford their not to vote but also that they wages. might penalty deprivation exercise that without or determining constitutional it is not the whether statute is adequacy. province of “The basic courts to determine its wisdom constitutionality legislation, principles that courts look to the wisdom, necessity, expediency, or propriety, justice, and not to its regula- policy constantly applied involving police have been cases police tions. If an act had a real substantial relation to the power, how the measure then no matter how unreasonable or unwise may be, or vacate it judicial itself it is for the tribunals to avoid upon grounds.” 306, p. constitutional 11 Am. Jur. § may legislation upon

“If there is basis which the reasonable constitutionally legislature had rest the court must assume that the All facts passed pursuant such fact in mind and the act thereto. necessary conclusively must taken as found sustain the act 311 the legislature, if such may facts be reasonably conceived in the * * * mind of the court. ‘Nor do courts have to sure of precise reasons for the legislation, or certainly them, know or be ’ ’’ convinced of the wisdom or adequacy of the laws. Poole & Creber Market Co. v. Breshears, 343 1133, Mo. 1147, 23, 125 S. W. 2d 31. We conclude provisions that the of Section 11785 are within the police power of the state and do not violate the due clauses of either the Federal or State Constitutions.

Defendant invokes the last clause Section 1 of the Fourteenth Amendment of the United States Constitution which forbids state deprive any person equal protection of (and the laws refers to 14, Section I, Article Constitution of Missouri corollary). as a cases cited in its support brief principle announced in the amend ment, they but are not question decisive of the They involved here. are: Truax v. Corrigan, 312, 257 254; U. S. 66 L. Ed. Frost v. The Corporation Commission of Oklahoma, 515, State U. 278 S. L. 483; Ed. 73 v. Miksicek, 561, 507; State Mo. 125 S. W. 225 State Empire Bottling 300, 1176; French, 261 Mo. 168 S. W. Ex Parte v. 75, 315 Mo. 513; Taylor, 725, 173 285 S. W. State 351 Mo. S. W. v. 2d 902. statute in argument

Defendant’s is: “It is submitted question out as a guarantee singles constitutional in that it violates this goes It even those who do nbt. employ against class those who labor as namely, class; labor-employing single part further to one out to those opposed as ’’ employ hourly paid who on an basis those labor month. employ paid by who or the labor the week relations classification of the that the courts have often decided com for the welfare of employers necessary proper are within persons all When munity. Corrigan, supra. Truax v. they are conditions, then like subjected purview of a are statute Jefferson, 317 City of law. Stone equal protection afforded W. 2d 159, S. 780; Baumann, 345 Mo. 131 1,Mo. 293 Hull v. S. W. Mo. Missouri, 348 721; Trust St. Louis Union Co. State * * on alike operates law as the long S. W. 2d 107. * * * subject any objections that is not a class it all members of Law, Jur., Constitutional legislation.” Am. special is it class § p. against levelled criticism singularly free from the Section duty uniformity of complete applies assignment. employees, and to all employers privilege, respectively, to all compensation. This their regard computing method without to the against defendant. contention is ruled Section 11785 violates Defendant contends Section States and Section I, of the United Article of the Constitution forbid These sections Missouri. I, Article the Constitution contracts. obligations legislation impairing police valid always qualified Freedom of contract freedom to restrict regulations. power “This under the Constitution in be exercised many That it has had illustrations. of contract ma3r contracts between public respect interest with limiting been sustained statutes have employee is undeniable. Thus day eight hours smelters to underground mines and employment * * manufacturing employees of work of *; limiting hours * * compensation maintaining workmen’s *; establishments * * employed, and employer of dealing In with the relation laws *. in order necessarily of discretion legislature has a wide field the peace safety, and may of health and protection be suitable there designed to regulations through may promoted be good and order oppression. from and freedom wholesome conditions of work insure * * *” 379, 57 S. Ct. Parrish, U. v. 300 S. West Coast Hotel Co. 578, 703, 81 L. Ed. 108 A. L. R. 1330. Mo. Hayes, 348 v. Lumber Co.

In the case of Gideon-Anderson approval 899, quoted with 1085, 898, this court 156 S. W. 2d 186, Mills, 219 Riverside U. S. 202,, Line Rd. v. Atlantic Coast Co. obvious, from the “It is 164, 169, 167, follows: 55 L. Ed. as 31 S. Ct. absolute thing as many court, is no such of this that there decisions policy -public which contravene of freedom Contracts .contract. may contracts lawfully all; power to make made at and the cannot be validity as to third form, evidence, and fegulated as to all cases be liberty to the denial power government extends persons. The every contract forbidding regulating to the extent of of contract in- public the reasonably injuriously affect is calculated to which ’’ terests. 11785 Having subject matter Section determined that the as a matter is not shown police power state, that it within the burdensome, is calculated unreasonably and that it of law to be not uncon- hold it does general people, we protect the welfare of the defendant contract between stitutionally impair obligations employees. its and act, part, is a in contravention

Is the of which 11785 Section provision was 23, III, This Article of 1945? of Section Constitution provides 28, Article as IY. also the Constitution 1875 Section * * * which subject, one shall contain more than that “no bill an amend- clearly expressed in its title”. Section 11785 shall be 157). (Laws 1893, p. “corrupt practice to the act” of 1893 ment prac- corrupt original prevent “AN The title of the act is: ACT candidates, prescribe elections, expenses limit the tices in committees, provide penalties political candidates and duties of fault is found with this act”. No for violation on remedies [of] original the title of the act. amendatory act of by an complaint added is that the sections 11785, were 1897, 108), one of which is now Section (Laws p. 1897 313 germane not subject to the original matter of the act; that, inas- much as amendatory act of adopted by reference and without change the title of original act, subject the new matter thus clearly added is expressed not in its title. “If the original title of an act is to embrace provision sufficient contained in amendatory act, it will be good, and it need not be inquired whether the title to amendatory would, itself, act sufficient.” State ex Drainage rel. Hackmann, District v. 305 Mo. 685, 701, 267 S. Young W. 608. See also County Greene, 1105, Mo. 369, S. W. 2d and cases therein cited.

We, therefore, look original to the title of the act to determine subject whether amendatory “germane matter of the act is general scope purpose (original act) within of the bill which, although particu- forth in the 'declared in its title and set title, harmony them”. Graves expressed lars in the are not out of Edwards v. Purcell, 2d 548. See also 337 Mo. 85 S. W. 2d Business Men’s Assur. 350 Mo. S. W. deny 11785, by terms, employer for an

Section its makes it crime employees absenting its from their themselves they days work on election dock their if do. crime to essence, therefore, the acts condemned practices who statute, defendant, guilty “corrupt practices did is elections”, We phrase original act. which is the first definitive act, amendatory will title of the not further labor the matter. The by original, its reference to the is sufficient.

Finally, urged 11785 is in conflict with 11786 is that Section is, therefore, that, and if con unconstitutional “in defendant should necessarily 11785, form provisions it would then Section 11786, pointed be in violation R. Mo. 1939”. We are Section S.

no find provision support contention, constitutional and we assignment question. none. ex The is insufficient to raise the State Bader, rel. 259, Karbe v. 336 Mo. W. 2d 835. 78 S. contention, obviously The however, is without merit. Section * # * any corporation 11786 “It lawful for provides: shall be * * * persuade any employee induce or to vote or refrain from

voting any candidate, any question for or on to be determined or at *” * * any issue at is at the election. Section 11785 directed employer give employee penalizes who refuses to time to or vote (cid:127) employer him if he takes the time. Section 11786 is directed at the inducing persuading They or how to are not in vote. conflict. judgment Dalton, Leecly of the trial court is affirmed.

Tipton, JJ,, concur; Hyde, J., opinion; separate dissents in Vande- venter, Special Judge, opinion separate dissents in and concurs in dissenting opinion Hyde, J.; Gonhling, J., and concurs in dissents Vandeventer, Special J.,

separate I-Iyde, dissenting opinions of Judge. ruling a crime

HYDE, respectfully dissent from the J. I criminal statutes committed in this case. construction of Strict ‘‘ to be are principle fundamental statutes of our law. Criminal strictly strictly: liberally construed in favor of the defendant against is to be State, proof. No one charge both as to the Bartley, 304 subject by made v. implication.” (State to such statutes 236, (2d)W. 58, 95; Lloyd, Mo. 263 S. W. State 320 Mo. 7 S. See also v. v. 344; (2d) 336; State Taylor, 325, S. W. State 345 Mo. Tiffany National Dougherty, (2d) 467; 358 Mo. 216 W. S. 862.) A L. Ed. Missouri, Bank of 18 Wall. U. S. any act by defendant committed a crime should not be held to have plainly which is not statute. made offense as follows: case, 129.060, The statute Sec. R. S. ‘‘ shall, on the Any any person to vote at in this state entitled any or day services election, of such to absent himself entitled employed, period for a employment engaged in which is then or he closing polls; and opening the times of four hours between any himself, not, absenting such because of so be liable voter shall may specify penalty: PROVIDED, HOWEVER, employer that his during employee may absent himself as aforesaid. the hours which such any Any corporation person or who shall refuse discharge privilege hereby conferred, discharge or threaten to or shall purpose of any employee absenting from his work for the himself any employee penalty or election, said shall cause to suffer or privilege, who exercise of or deduction of because of the such section, shall shall, directly indirectly, provisions violate the of this misdemeanor, guilty be deemed of a and on conviction thereof be ’’ exceeding fined in sum not five hundred dollars. upon an first sentence states the conferred

employee. it a for an The second sentence makes crime any employee privilege conferred the first sentence. refuse to privilege includes Nowhere in first sentence it stated that the is activity not payment by employer employee to the for time or only says by employment. covered It that he shall not the terms of his any penalty. When, here, (under as the contract which be liable to obligates employee agrees employer to work and which the under provides employee per is to receive hour pay) $1.60 himself to that the by him worked, penalty paying for there could be no not each hour It is true that the second sentence of the what he has not earned. wages” an of- imposing “penalty a or deduction of statute makes thereby wages” in the definition fense, and includes “deduction wages” how can be a “deduction of “penalty”; of the term but there unless some wages ° have been earned? It is conceded ^[6] here that the paid was for the full time he day had worked on election every day. and other How an employee, can paid who is on the basis per so much for every hour hour worked, pay and who receives agreed every for rate actually hour of work performed, be sub- jected to wages” by “deduction of being paid more? There must right be a wages first to before there can a wages, deduction be and there nothing is in this statute which a right any wages creates to beyond or pay for parties which the Therefore, have contracted. duty imposed no is on an employer pay to more than provided by the employment contract of by parties made themselves. I think to construe otherwise would be to make such employers and employment subject contracts to this purely by statute implication, to very and me a far implication fetched at that. Furthermore, I think to construe creating this statute as right wages beyond to and in addition parties agreed to what have upon, would make it unconstitutional including an additional subject not clearly expressed title, in the in violation of Art. Sec. Ill our very'broad Constitution. is a This statute; it covers every every election of kind and employment, agricultural kind of domestic, and as well as Surely industrial. to a broad create such all right and obligation require inclusive any person, as to who employs paid hour, another to work and him to also on day (up hours) for the time he takes to to four is a vote subject economy. purpose new to law our and our of this section prevent public is to of the Constitution and the members (State Legislature being to of a ex misled as the contents bill. 329; Railways Wiethaupt, W. rel. United Co. v. 231 Mo. 133 S. 122; see also 238 W. Imhoff, ex Barrett v. Mo. S. State inf. (2d) 312.) title 677, 136 W. Armour & Mo. S. Hunt v. Act to ‘An an Act Entitled “An Amend this act Act to was: Expense of Elections, Limit Corrupt Prevent Practices Com Political Candidates, the Duties Candidates to Prescribe of This for Violation and Remedies mittees, Penalties and Provide inserting 31, 1893, by between Sections Act,’ March approved 4a, 4b 4e.” known as sections to be Sections and 5 three new title, nor 108.) to me clear that neither this (Laws 1897, seems p. It it, gave Act” included original ‘.‘Corrupt Practices the title to the obligate being created to that a new any indication whatever for time anyone by him, every employed employer pay wages to pay wages of work and method vote, in addition to the taken agreed on them. ment between practices corrupt in the is, highly include course, It desirable of an prohibition against any influence or intimidation act against imposing any penalty certainly also actually and due under the making any earned deduction equally important safeguard contract them. between employee’s right him by requiring employer of his to allow franchise by time vote; obligations and to the em- make a violation of such ployer employee, paid a criminal An is to be offense. whose contract the month or year, has, of course, earned his pay even ^[897] though he has taken off from his time to vote or for other duties some personal certainly employ- purposes. It would be a violation of the contract, ment an to hold corrupt practice, as well as a for part compensation However, out earned, under such circumstances. compensation the matter of time of is a matter service method contract, regulate it, steps at least until the in to and cer- State tainly hours, fixing when (by the State does decide to do so maximum requiring pay activity) minimum hours or that is for outside separate subject corrupt and distinct from election laws or practices. judgment

I think Conhling, J., should and Vande- be reversed. venter,-Special Judge, concur.

VANDEVENTER, JUDGE. In addition SPECIAL given by Judge Hyde reasons dissenting opinion, in his in which I concur, think part I this cause should be reversed because that See. 11,785 upon which this conviction is based conflicts with the State Federal Constitutions. I (now believe that section Sec. 129.060 R. S. 1949) Mo. is unconstitutional in so far it a crime for an as it makes employer to deduct from employee of his amount of time employee my lost absenting day. himself on election t judgment, i provisions violates the and federal both the state constitutions which taking property forbid the without due law, guarantees every equal protection citizen the (Am. law. 1945) XIV Const. U. S. 1. Art. Mo. Sec. Sec. Const. question The statute in is as follows:

“Any person any shall, entitled to vote at election in this state day on election, any of such be entitled to absent himself from employment services or engaged employed, which'he then or period for a of four hours opening between the times of closing the polls; not, absenting such voter shall because of so himself, any penalty: HOWEVER, be liable to PROVIDED, employer may that his specify during the hours which such em- ployee may Any person corpora- absent himself as aforesaid. or any tion who privilege hereby shall refuse to con- ferred, discharge or discharge any shall or threaten to absenting himself from his purpose work for the of said election, any employee or shall cause penalty or suffer deduction privilege, because the exercise such or shall, directly indirectly, who provisions violate the of this section, guilty shall be misdemeanor, deemed of a and on convic- tion exceeding thereof be fined in sum not five hundred (Italics mine) dollars.”

317 A of reading careful this statute demonstrates its purpose that main every employed was to allow citizen to absent himself from his labor days long on election enough to nothing cast his ballot. There is requires voté, although statute that him to may he demand four opening hours relief the closing polls. between part of the The (cid:127) that I think is part unconstitutional is that which condemns the employer if any he deducís the employee’s wages. Really, of it isn’t a of wages employee deduction for the has no rendered services for paid. which he should be apparently if statute means that the employer fails to employee the for work he do during that does not the working usual absent, employer hours the when is the is guilty deemed a according of guilty, misdemeanor. He is to the ‘‘ * * * statute, if he any employee shall cause to suffer deduc- * * wages tion of because of of privilege, the exercise such privilege given by the privilege words of statute of the is the voting but it is the privilege absenting himself for four hours opening between the closing' polls. of the Whether reference to duty voting deliberately was left out and de- signedly, we way clearly statute, have no knowing, but under the employer punished deducting could be the em- ployee during himself, he voted or time has absented whether he However, say not. if the specifically statute did that the vote, if off, opinion must he that it takes the time am still of I

attempts process property to take without due of law, and equal protection denies him the law. process law, legislation,

Due referring when has been defined as follows: applied legislation,

“As process due of law means- statutes general operation that are all alike.” rights and affect the Sec, (16 Law, Page 1145) J. S. 567 (c) C. Constitutional merely legislature, does not for such a mean act of ' abrogate legislative power. construction would all restrictions on Pauly v. Keebler, 554, N. Wis. 185 W. 175 428.

There are squarely decisions that hold under statute almost identical with this one it is violative of these constitutional guarantees. People Chicago, eases M. P. R. Those are: v. & St. 486, McAlpine Dimick, 306 Ill. R. 155, N. E. 28 A. L. 610. 138 240, Commonwealth,

157 N. E. R. Ill. 245. Illinois Cent. Co. (2) 973, Ky. 204 S. Cer. 92 L. Ed. 334 U. S. W. den. S. Ct. says opinion:

Division One in its apparent “It is is due Section 11785 violative un- clauses of both the Federal and State Constitutions power police less its enactment within of the State.” all, justified So if can it be exercise be must based on valid police power. “police power” of the cannot recognize I that while all sets way to embrace definitely briefly in such defined epito- general definition courts, yet a might facts that face as follows:

mized C. J. S. gov- right of a sovereign power is the exercise “Police morals, general health, safety, promote order, ernment (16 J. S. limits.” C. society, constitutional within welfare of Law, 174) Sec. Constitutional within the 1949) is to be held (129.060 R. Mo. If S. Section 11785 general or “the certainly under “morals” would be police power, it Law, society.” 196 of C. J. S. Constitutional But section welfare of to is subordinate police power tersely “The exercise of the states limitations thereon.” constitutional from an to find cited, have been able been or I far as we have

So United leading case in the investigation, the first and independent of People of the State the case of directly question on this States Railway 306 Ill. Paul Chicago, Milwaukee and St. Illinois case the end of that An annotation at N. 28 A. L. R. 610. 138 E. impression. of first my opinion that it is case A. L. R. confirms in consideration a Illinois had under Supreme of In that case the Court except permitted the before us almost identical with the one statute That said: instead of four Court employee two hours absence every person is state and Federal Constitutions “Under our right own, law in the equal protection of the guaranteed the distinctly also use, enjoy property. These Constitutions and unless person shall be taken provide property that the of no Any rights. invasion of his compensation given to him for such compels him to property his or deprives any person law that of deprives justification any person property his without deliver to The section of the property process due of law. him of without quoted provision the of our Constitution statute above violates substance, deduction from the by providing, in that no aforesaid by employee shall be made his em- salary usual or of the by subjecting employer absence, and ployer on account of such from the in makes such deduction penalty to the aforesaid case he wages. justification or sound reason to employee’s There is no making for such a discrimination between be found in the law employ labor, persons other who do not of labor and process due clause of the and it likewise is a clear violation of the legislative The Federal 14th Amendment to the Constitution. gone of state have to the government branches of and this this health, safety protect lives, and legislation utmost limits in country, including court, employees, courts of this and the gone sustaining those laws wherever and when- have also far in necessary reasonably appeared that such laws were ever it health, safety lives, and of such protecting or beneficial in question work, regard to the employees without cost while employers. gone same courts have equally far in sustaining guarantee equal laws that and right untrammeled of every right citizen to his exercise of franchise and to east his vote at every pleases election as he for pleases, whom he and without hindrance or any undue any influence of kind person; but, know, so far as we no court any has ever decided case that it right was the citizen, under circumstance, paid to be exercising right his to vote paid by or to be his employer for time employed by him in the exercise his right vote. The statute in this case in requires substance employers of laborers to them for hours’ two time while exercising their to vote, deprives employers and thus such money property law, of their without due thereby equal laws, denies protection them violation both Federal State Constitutions.” here, argued, argued that this Illinois this case as State police power statute was a valid exercise of but that contention was considered the court and it said: right, police

“It is true that the state have the under its does pass powers, promote health, safety, laws tend employees Turney, morals such because fact such promote comfort, health, safety, laws would tend to wel- society. question, by plaintiff fare of The act in as contended error, any way, see, far does not in so as we are able to tend to health, safety, the promote employees. or morals of The such provisions in question adapted object are for which not to the enacted, public comfort, the law was and be said cannot to secure welfare, safety, contention, public or morals. There is no and any there can be made showing, none reasonable that the provision question safety in promote any tends or to the health of employee. always policy It has been the of our laws condemn any being paid exercising the of for idea voter the of an right simply The one of privileges elector or voter. to vote the country guaranteed every possesses citizen of this who the requisite qualifications. right, It is not a but be should regarded duty citizen, reasonably as a of the where he is able duty. physically perform is not the constitutional right any paid of right vote, of citizen be for the exercise his holding provision and of of the statute void does not any right citizen, including employed violate the of who those are provision to labor. This of the statute is not sustainable under police power state, of it does and violate constitutional aforesaid, provisions and therefore must declared void. Be- sides, police power disregard ‘no exercise of the can the consti- guaranties respect private taking property, tutional in to the of protection’ laws, process, equal due and of the and it should not ” ‘pverride justice.’ of the demands natural N. E. 245, 157 McAlpine Dimick, 326 Ill. In the case of v. and that of Illinois question again Supreme was before the Court Paul Chicago, Mil. & St. People doctrine v. court reaffirmed its in Railway saying: Supra, Co. right employees the provision 7, giving

“The of section for hours-on election employment their two absent themselves from any from their dáy voting for of without deduction purpose also unconstitution- wages or on account such absence is salaries ’’ al, being a 2 of the violation of section article Constitution. then, If was it is now. Constitutional unconstitutional exercise A valid provision the statute remain the same. and police power transcend the cannot Constitution. 754, which was Zelney (2) N. Murphy, E. v. 387 Ill. the case of compensation, mentioned unemployment a for the court suit said: Paul R. R. and People Chicago, Milwaukee Co. and St. any for penalty a there, questioned, provided “The as statute period two made a in for who deduction special voting any general hours used such in constitutional court that it was not .the and the held exercising right paid to be the time consumed citizen for ‘ right.to exercise vote. The further said: “No court respect power disregard guaranties police can the constitutional protec equal taking private due and property, to the McAlpine approved in holding This tion” the laws.’ statute, However, re Dimick, 240, 157 this Ill. N. E. 235. time, pro still time to contains enacted and amended paid for providing citizen to be vision for the cases, right to These exercising time consumed in his vote. course, considera to the under controlling could not be statute appreciation especially growing here tion view of finding ground necessity rational public and of the needs rights public welfare.” compromise individual between amended, placed fact statute re-enacted and that the has been apparently enforced, maintained, never on the statute books was enacted The statute this state does make it constitutional. years ago that there no decisions on it more than 50 fact are prove inferentially to its con- until now does-not or otherwise tend stitutionality. likely any been that has never proves More there one, far attempt to at bar seems to be the first as enforce it. case show, punish this to an em- the books where has endeavored State refusing pay employee an under these circumstances. ployer for to attempt part any employee to collect I can no on the And find such, me, unrighteous compensation. I had appears as it to rather precedent due to the fact that the workers that absence of believe they legislative implication that will Missouri resented the have being paid privilege of free men without for it. not exercise that had I rather think that in outweighs their scales the to vote a few pay. hours Railway Illinois Company Commonwealth, Central v. Ky. (2) 204 S. W. question the same upwas and that court held it Kentucky

unconstitutional both under the Constitution the Consti- tution of the United opinion, States. As I read it did that not base its decision upon People Chicago, Co., the Milwaukee & St. R. P. supra, statute, but after it holding had discussed the for its reasons it unconstitutional, declaring uneonstitutionality then its under the Kentucky Constitution, it said this:

“We also wage-paymeiit-for-voting-time pro- believe that the visions of this antagonistic statute are to the United States Con- stitution, particularly provision says that which no state shall deprive any person of property without his due of law or deny any person jurisdiction equal in its protection the law.- far know, only

“So as we been there has one'case this exact character by any decided court of last resort the United-States. holding a that one ease was that such law as this one now passed by under consideration, legislative authority in the State of Illinois, could not meet constitutional standards and must accord ingly fall in organic the face of the fundamental restrictions People law. Chicago, Paul Ry. See M. St. 306 Ill. & 138 N. E. 28 A. L. R. 610.” question seems to me that this here boils itself down to this proposition, legislature, violating provisions can without Constitutions, compel employer pay to his or its hours, time, for four or other amount of that he himself on absents day employer election no gives and for Avhichhe his service? every good day,

It is duty to vote. On that citizen then, every course, the em equal he stands Avith other citizen. Of duty by refusing ployer deprive permitted should not him of if he employment. penalize to let him -To him place leave the of his promotes is certainly police poAver does a valid exercise of country general increasing of voters Avelfare of the the number the, thereby questions polls-repre make to be determined at the greater require employer the voices number. But to sent (of absenting day him while on himself for going that) polls although require to the vote statute does not promote my judgment, does not the morals of the citizens but has pay opposite going polls effect. To to the to vote is voter step way. corruptly influencing the first toAArard him vote a certain voting What benefit does receive is different to himself third the benefit that the voter receives person expression opinion polls? fair He interested in a at the including anyone employee. benefits no else, more than It certain- to abstain part of a citizen high morals on ly does not indicate he can somebody pays him, or unless polls unless going from to the fact, a matter of wages. As losing a small amount of so without do eight hour age in this modern employee, employees as most this quitting or after going to work day, plenty of before had time either employer. to his his service interrupting cast his ballot without time to voting. It should privilege of good All exercise the citizens should He should voluntarily any strings attached. without be exercised any in- citizens without day equal all other to be desire on this judgment of the except his considered own fluence source If he receives decided. issues to be to be selected or the candidates payor. obligation to the voting, he must feel a certain sense pay for hiring of condemn the always policy democracy to been the a It has their ballot marking manner of people vote, to the end that the corruptly would not influenced. be general welfare” and argued for “the might It that it would be be employee, if employer and

foster more relations between amicable a pays employee. Such employer the statute is followed and the which would only obligation upon be based sense of could feeling according own to one’s right to vote restrict free exercise lights. attribute likely employee, paid, not

But it is more that the so would the statute employer his benefaction to but enforcement legisla- loyalty employer gratitude to the would transmute into event, not beneficial ture. either the result would be general welfare. elections, apply will be noted that this to certain statute does jt applies only requirement all is that elections and the object

election in The solo which the is “entitled to vote”. is to Corrupt and nation Practice Acts of the various states go procure expression voting free in The voter should booth. voluntarily least, there convic- theory, express and in his honest go tions on as the the candidates and He should not there issues. compelled hired hand of his master that his master is on the time pay for, require his exercising privileges in his as a citizen. To absenting of himself voting pay him for him the job, may is, my opinion, from his so he itself vote immoral unhampered country’s at variance elec- policy with this of free and general tions. The if the welfare of will be best conserved the state voter exercises own his to vote on his time uninfluenced feeling pay- he is an his master’s service and on the roll at the doing time he should do as a citizen. he that which This privilege should not be measured dollars.

There are also cases which to hold that such are seem statutes justified power. They as a police People valid exercise of are: (2) Ford Motor N. Y. S. Kouff v. App. Div. Bethlehem-Alameda Shipyard, (Cal. Inc. App.) 202 (2) Pac. 1059. Lee v. Ideal Roller Mfg. & Co., 92 (2) N. Y. S. 276. Ballarini v. . Schlage Lock (Cal.) Co. (2) 226 Pac. 771 to, The cases contrary the my opinion in are not as well reasoned logical and as the ones above referred to. In People v. Ford Co., Motor App. 271 Div. 63 N. Y. (2) 697, S. the Company was convicted and fined $100.00 on each of three counts subjecting for employees to a reduction of of because absence from work, while exercising privilege attending of an election. majority opinion did not discuss the constitutionality of the statutes. It was discussed, lengthy however in a and well reasoned dissenting opinion by J., Lawrence, and at opinion, the close of that he said: any

“So far as brought my has case been attention and so far discover, as I have been able to no has court decided that it is right any voter, circumstances, paid all for under to be voting. requires employers The statute here the.

pay employees exercising their for two while hours time vote, necessary deprives that is or not and thus whether process and denies them the property them of their without due equal both protection law, in the federal violation ’’ state constitutions. Shipyard, (Cal. App.) v. Inc. 202 Kouff Bethlehem-Alameda legality

Pac. was the (2) question before the court discharge employee an off serve as an because he had taken time to statutory day. that re- officer of election on election It was held quirement discussed was not unconstitutional. The court cited and People Chicago, Co., R. supra v. M. & St. Paul R. Illinois Central Commonwealth, supra said: “ interesting part It note that both concede that that cases requiring employer to time vote—2

of the statute allow out to Kentucky proper power. in a Illinois and exercise hours —is part requiring full It for a violation both was prosecuted. Although were those cases deal time railroads voting, with time for out for while deals out election-board statutory essential between service, there is no difference ,‘nor 696, viz., section shall language those cases that of salary wages. However, made his usual it deduction be from ’. necessary express opinion as to for us the constitu- just quoted. say tionality part of section 695 suffices to provision. clearly the dismissal separable from See 12 that it is prevent If employers can pp. state Cal. Jur. they boards, on employees because serve election

discharging action states for complaint that the cause .unlawful follows ’’ discharge. Y. Mfg. (2) In the Lee et 92 N. al. Ideal Roller S. & case of court, Scileppi, Justice, pre

726; municipal the cause was tried in the siding. one In that The facts that case were dissimilar here. paid for had 38 hours in week and been case worked ha%d day. He of two off on was then called hours because hours Saturday upon 4 more hours on after he had worked to work for paid for 40. a Union contract over hours but been Under .had week, and one-half. He time a 40 hour he was to receive above time paid for he and did not the two hours which contended get so could time and be counted the 40 hour week he work'should Saturday. full four worked on His for the hours one-half Justice, Scileppi, held otherwise but contended against 4 hours on judgment the defendant the worked rendered opinion Saturday wages. No case cited in the as at overtime question was and the issue authority, no constitutional discussed paid -to hours that were for that were not count the two was whether Saturday,-would full 40 hour so the four hours on be worked in the week Scileppi, Justice, said: paid opinion, overtime rate. In its at the plaintiffs if had by “It the that the is conceded defendant eight Day, actually worked hours on Election with two additional vote, plaintiffs be entitled two hours hours off would day.” rate for that overtime point not in here. This case is therefore 771, (2) the-Appellate Schlage Co., Ballarini v. Lock 226 Pac. In Court, City County Francisco, Superior and Department, San Cali- considering a .statute in all essentials the same as ours. fornia was November, and until 1950 had This had been enacted 1881 statute every every permitted It voter at before the courts. never .been general, presidential primary absent primary or election direct hours between the time employment his for two consecutive provided he opening closing polls. It that should and the time of any be made on penalty “nor shall deduction not be liable to salary wages.” This (any) such absence from his usual account of separate of the pretended to the two elements case never right' paid. to be right to and the is, statute that be absent contract, all material merely persons enter into stated that when That, by the law. affecting it are read into the contract statutes excepion, it that it does abstract, is a-true but has statement part of one. The court apply an unconstitutional statute or not exercise of taken a whole was a valid that this statute then held every be- power part contract entered into police and became after its and enactment. tween argument appellant about impressed I am much with the its contract with the em- production. When it entered into loss of not, it or that contract included ployee,'whether actually written into Contracts, statutes. 17 C. J. S. provisions of all valid material

325 Sec. 330. When it employee, contracted with it its knew that' on days he was to a entitled leave of absence for four hours opening closing between the hours of polls. my judg In ment, provision contract, went a part it, into awas police valid power exercise of the loss occasioned it non-productivity because of the plant its was nothing about which complain. it could money pocket But to take from the of the em ployer $2.40 whether it be for an hour and one-half or the same sum multiplied by the number employees, taking of-its property segment society one giving anything to another without return and this considering without aspect the immoral paying an employee for exercising duty his part That vote. of the statute was unconstitutional and did not binding become a part of People Coler, the contract. ex rel. v. 59 716, 1, N. E. N. Y. Am. S. R. 52 L. R. A. Affirmed 701, App. 67 N. Y. S. Div. 98. Cleveland v. Clements Bros. Const. 65 N. E. Ohio R. St. 197, 93 Am. L. S. 59 R. A. 755. case written the St. Louis Appeals Court of (State v.

Day-Brite Inc., Lighting, (2) 782) 220 S. merely W. held, it was question as to matter now in court, before this that the information charged an under offense the statute. It construed the statute as it it, pretend pass found and did not (as indeed it not) upon could constitutionality. disagreement its no holding I have with its for an employment, to absent himself' from his penalizing employer if prevented of an he him from the “exercise privilege,” police power of such is within valid exercise the state. deprived property

An of his without due compelled if he' is equal protection of laws law and denied the period, for the em- during the absent where no service pay wages performed period of absence for the ployer where is. employee. a violation of an Such benefit and convenience .of power. Conkling, employer’s rights police be hallowed cannot Jconcurs. Specialties Corporation, Plaintiff-Appellant, Company,

Merit Foundry Corporation, Defendant- Company, Gilbert Brass (2d) 718. Respondent, No. S. W. 42167 241 One, July

Division

Case Details

Case Name: State v. Day-Brite Lighting, Inc.

Court Name: Supreme Court of Missouri

Date Published: Jun 11, 1951

Citation: 240 S.W.2d 886

Docket Number: 41979

Court Abbreviation: Mo.