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» Northern P. R. Co. v. Whalen, 149 U.S. 157, 13 Sup. Ct. 822.

« Minn.. R.L. sec. 5173.

» Ala., Code, sees. 6804, 6805.

* Cal., Penal Code, sec. 59 ; N.Y., C.L. ch. 40, sec. 772 ; S.D., Pen. Code,
sec. 62.

•Conn., G.S. sec. 1700; Idaho, Pen. Code, sec. 4585; Ind., A.S. sec. 2341 ;
Ky. Stat. sec. 1574A.

• Wye, R.S. sec. 2523."'



44 LAW OF THE EMPLOYMENT OF LABOR

or manufacturing work carried on in the precinct, as judge,
clerk, or watcher at the polls in any election.^ Many of these
laws provide that time to vote shall be allowed employees,
either a fixed number of hours or a half day ; or the day of
election may be declared a legal holiday.

Employers are forbidden by the laws of a few states to dis-
charge employees on account of their membership in the Na-
tional Guard, or to refuse them permission to drill or perform
active service when ordered out.^ Interference with such mem-
bers in their employment, or with their employers in their busi-
ness may likewise be forbidden ; also discrimination against
such workmen by labor organizations on account of their
membership.'

« Colo.. A.S. Supp., sees. 1625wl/8, 1625wl/4.

» Kans., G.S., sec. 4058 ; Wash., Acts 1909, ch. 134, sec. 69.

» Cal., Pen. Code, sec. 421 ; 111., Acts 1909, p. 437 ; Me., Acts 1909, ch. 206,
860. 116; Mich., Acts 1909, No. 194; N.Y., C.L. Ch. 40, sees. 1480, 1481;
Wash., Acts 1909, ch. 134, sees. 67, 68.



CHAPTER II

WAGES

Section 19. Definition. — Wages are, in both common and
legal language, the compensation paid or to be paid for services,
whether computed by the day, week, or month, or by the piece
or job. Payment for piece or job work is frequently spoken of
as earnings, but it differs in no sense from payment computed by
time, the words "earnings" and "wages" being often used together
in statutes on the subject. In mining and elsewhere, much of
the work is done by what is called contracting, one man being
paid by the ton or other quantity, he paying a helper or helpers
a fixed sum daily or at a given rate per unit used ; but the sums
received by the different workmen are alike wages ; ^ so also
where a group of men are employed in the joint production of
a designated unit, and the payment therefor is divided among
them fractionally or by a percentage. The profits of con-
tractors where agreements are made for the performance of
work involving individual direction and the employment and
guidance of subordinates, as in the erection of a building or the
construction of public works, are not classed as wages.^ The
word "salary" is also said by some courts to be synonymous with
wages,' though in others it is held to mean a larger compensa-

' Coal Co. V. Costello, 33 Pa. (9 Casey) 241.

« Heard c. Crum, 73 Miss. 157, 18 So. 934 ; Lang v. Simmons, 64 Wis. 625. 25
N.W. 650. ' Bovard ». Ford, 83 Mo. App. 498 ; Com. r. Butler, 99 Pa. 635.

45



46 LAW OF THE EMPLOYMENT OF LABOR

tion for more important services/ or payment for services other
than of a manual or mechanical kind.^ Salaries of public
officers are not exempt from garnishment under laws exempt-
ing wages.^

No wages can be recovered for services rendered in violation
of the provisions of the law. Thus an engineer working without
a license when the law requires one can recover nothing in a suit
for wages ;^ nor can one who works on Sunday where the law
prohibits such labor ; ^ or who works more than eight hours in
violation of statute.^

The payee must in general be either the person rendering the
service or his legal representative, though a few states have
laws for the payment of wages to the widow, minor children,
or other heirs of a deceased employee without the formality
of administration, but only in case the debt does not exceed the
sum fixed by the statute, this amount varying in different states
from seventy-five to two hundred doUarsJ Provisions as to
the rights of assignees, and other creditors, and of married
women and minors are found in the statutes of nearly every
state, and will be noted under their various headings. Where
wages are paid in violation of the provisions of law appUcable
in the case, the employer cannot plead such unlawful payment

1 Meyers v. City of New York. 69 Hun 291, 23 N. Y. Supp. 674.

« In re Stryker, 158 N.Y. 526. 53 N.E. 525.

'McLellan v. Young, 54 Ga. 399,21 Am. Rep. 276; Thomas r. Walnut
Land. etc.. Co. 43 Mo. App. 653.

* The Pioneer. Deady 72. Fed. Cas. No. 11.177.

» McGrath v. Merwin. 112 Mass. 467, 17 Am. Rep. 119; Carson v. Calhoun,
101 Me. 456, 64 Atl. 838.

« Short V. Min. Co., 20 Utah 20, 57 Pac. 720. (Suit was for pay for overtime,
work only.)

' Ala., Code, sec. 4201 ; Ga., Acts 1901, p. 60; Miss., Code, sec. 2133 ; Pa.,
Acts 1907, No. 162.



WAGES 47

as a defense in an action to recover wages earned. Thus in
the case of a law prohibiting the payment of seamen's wages
in advance,* payments made in violation thereof were not
allowed as a set-off in an action to recover the whole amount of
wages earned under the contract.^

Section 20. Rate. — The rate of wages is usually fixed by
agreement, but where no agreement is made, the law implies
a promise to pay as much as the services are reasonably worth,
or a quantum meruit.^ Where a rate is agreed upon, no action
on a quantum meruit can be brought,* and if it can be shown in
an action of this sort that a rate was actually agreed upon, that
rate will control the decision of the court.^ On the other hand,
a suit on contract cannot secure a recovery on a quantum meruit.*
If the price is agreed upon after entrance on service, the agreed
rate relates back to the beginning of such service.' Changing
the rate of wages is in effect making a new contract, so that the
courts will sanction neither a settlement by proffer of a lower
rate than the one agreed upon,^ nor a demand for a higher rate
on the ground that the work was worth more,^ unless mutual
consent is properly shown. Thus, though competence is assumed
and an employer may rightfully discharge an employee for in-

1 U.S.. 30 Stat. 763.

* The Alexander M. Lawrence, 101 Fed. 135.

» Henderson Bridge Co. v. McGrath. 134 U.S. 260, 10 Sup. Ct. 730 ; Dubois v.
Del. & H. Canal Co., 4 Wend. 292 (N.Y.).
« Clark V. Smith, 14 Johns. 326 (N.Y.).
' Rubin ». Cohen. 113 N.Y. Supp. 843.

• Birlant v. Cleckley, 48 S.C. 298, 26 S.E. 600.
' Royal r. Grant, 5 Ga. App. 643, 63 S.E. 708.

•Hackman v. Flory, 16 Pa. St. 196; Pennington r. Lumber Co., 122 S.W.
923 (Tex. Civ. App).

» Snyder r. Wright, 4 E. D. Smith 367 (N.Y.) ; Wallace c. Floyd, 29 Pa. St.
184.



48 LAW OF THE EMPLOYMENT OF LABOR

competence, he cannot refuse to pay wages at the agreed rate
on the plea that the employee was unskillful, as his retention
in service will be construed as a waiver of the employer's right
to discharge.^ Prior notice of reduction of wages may be re-
quired by statute,^ though in view of the rule of law that an
agreed rate controls until a change is assented to by both par-
ties, the importance of such a law does not seem to be great.

Rates of wages have been fixed by statute in a few states
though only in the matter of employment on public works,^
or in the printing offices of the state or the United States.*
Besides these, a Virginia statute declares that a reasonable sum
shall be paid for services in salvage, and in case of the failure
of the parties interested to agree, they shall each choose an
arbitrator, and a state official shall choose a third, this board to
determine the rate.^

The state of Massachusetts is the first to look seriously toward
the regulation of wages in private undertakings, having provided
for a commission to study the matter of the wages of women
and minors, with a view to fixing minimum rates of wages for
such classes of employees.^ Since laws regulating the hours of
labor of such persons are valid, there appears to be at least an
open field for an attempt to regulate their wages also, though
the chief reason for limiting the hours of labor of females, i.e.,

» Clark V. Fensky, 3 Kans. 389.

» Mo., R. S. sec. 1009 ; Texas, R. S., sec. 4544 ; U.S., 30 Stat. 424, sec. 9, C.S.,
p. 3205 (applies only to receivers of railroads appointed by Federal courts).

3 Cal., Sims' Gen. Laws, No. 2894 ; Del., Acts 1903, ch. 410 (City of Wilming-
ton only) ; Nebr., Acts 1903, ch. 17 (cities of first class) ; Nev., Acts 1907,
ch. 202 ; N.Y., Con. L., ch. 31, sec. 3.

* Cal., Sims' Pol. Code, sec. 531 ; Kans., Acts 1907, ch. 393 ; U.S., 28 Stat.
607, 31 Stat. 643.

» Code, sec. 1946. * Resolve approved May 11, 1911.



WAGES 49

on account of physiological differences between males and fe-
males, cannot be cited as supporting a wage law.

Laws regulating wages on public works may fix an absolute
minimum rate, or they may provide that current or prevailing
rates shall be paid. A law of Indiana^ fixing a minimum rate
was held to be unconstitutional, since it interfered with the free-
dom of counties, cities, and towns, which were held to be cor-
porations with a right to contract in matters affecting their
own interests; and also burdened the citizen by taking his
property without due process of law.^ A similar law of New
York 3 was upheld in the case of a direct employee of the
state under a superintendent of one of its undertakings, the
court finding no express or implied restriction in the constitu-
tion of the state upon the power of the legislature to fix and
declare the compensation to be paid for labor or services per-
formed upon the public works of the state, declaring further
that wages so fixed cannot be reduced by the officer under
whom any employee might work.* A subsequent law of this
state directing contractors as well as public officers to pay
current local rates of wages ^ was declared unconstitutional as
exceeding the power of the legislature in the matter of both
public and private contracts, the interference with the rights
of both the city and the contractor being condemned.* Later
this decision was modified to the extent of holding the law ap-
plicable to contracts in which the city was directly interested,
making the law invalid in its application to contractors only.''

' Acts 1901, p. 282.

« street v. Varney Elec. Supply Co.. 160 Ind. 338. 66 N.E. 895.
» Acta 1889. ch. 380. * Clark v. State. 142 N.Y. 101. 36 N.E. 817.

' Acts 1897. ch. 415. • People v. Coler. 166 N.Y. 1, 59 N.E. 716.

' Ryan v. City of New York, 177 N.Y. 271, 69 N.E. 599.
B



50 LAW OF THE EMPLOYMENT OP LABOR

Following these decisions came the adoption of an amend-
ment of the constitution of the state, empowering the legislature
to regulate the conditions of employment on the public works
of the state, whether directed by the state or a subdivision
thereof, or by a contractor. The law previously declared un-
constitutional was thereupon reenacted,' and has been sus-
tained by the court of last resort of the state.* The view of
the Supreme Court of the United States, laid down in a case
where the question turned, not on rates of wages, but on the
hours of labor, holding that municipalities are but the agents,
of the state for the conduct of local affairs, and are properly
subject to such regulations as the state may see fit to prescribe,
would sustain such laws as the above generally.^

Section 21. Deductions from Wages. — The discounting of
time checks by the employer issuing them, or by his agent, may
be prohibited by statute,* or the amount that may be deducted
for payments made in advance of the regular payday limited.^
The willful refusal to pay a wage debt with the intent of obtain-
ing a discount thereon may be punished as a misdemeanor,®
or as a crime.^

Deductions by way of fines for imperfect work,^ or "for any
reason," ^ may be prohibited or restricted. But a law that
prohibits the imposition of a fine or the withholding of wages
on account of imperfections, unlawfully interferes with the right
to make reasonable contracts ; ^^ though if it allows for fines only

« Const, art. 12, sec. 1, Am. 1905 ; Acts 1906, ch. 506.

* People ex rel. Williams Eng. & Cont. Co. v. Metz., 193 N.Y. 148. 85 N.E.
1070. 3 Atkin v. Kansas, 191 U.S. 207, 24 Sup. Ct. 124.

* Nev., Acts 1905, ch. 106. ' Ark.. Dig. sec. 5383.

* Mont., Acts 1907, ch. 144. ' Minn., R.L., sec. 5096.
« Mass., Acts 1909, ch. 514, sec. 114. ' Ind., A.S. sec. 7059b.
10 Commonwealth v. Perry, 155 Mass. 117. 28 N.E. 1126.



WAGES 51

in accordance with the terms of a prior agreement or contract,
it is valid. ^ Within the purpose of this class of laws are those
that prohibit the screening of coal before it is weighed,^ the loss
of coal through the screen being regarded as causing an unjust
loss to the miner whose contract calls for payment by the weight
of the coal mined. Such laws have been held to be constitutional,
as within the police power of the state,^ though the contrary view
has also been expressed, the laws being condenmed as interfering
unduly with the right to contract freely.*

The compulsory remission of any part of an employee's wages
for the maintenance of hospitals, libraries, or for other benefits
or social purposes is prohibited in some states.^ Though it is
unlawful for an employer thus to withhold his employee's wages,
he is not by that fact relieved from his obligation to supply
hospital treatment, according to his contract, to an injured
employee whose wages have been thus retained.^

Section 22. Time of Payment. — The time of payment of
wages is usually fixed by the contract of employment, or by
custom, which is in effect the same thing. An agreement to do
a piece of work, or to work for a stated period, for a certain sum,
no time of payment being set, is construed to be a contract to
pay only when the labor is completed or the contract is other-
wise terminated.^ If monthly payments are agreed to, wages

» Gallagher v. Mfg. Co., 172 Mass. 230, 51 N.E. 1086.

« Ark., Acts 1905, No. 219 ; Colo., A.S., sec. 3204k ; Iowa, Code, sec. 2490, etc.

» McLean v. State, 211 U.S. 535, 29 Sup. Ct. 206 ; State r. Peel Splint Coal Co.,
36 W. Va. 802, 15 S.E. 1000.

< Ramsey r. People, 142 III. 380, 32 N.E. 364 ; In re House BUI No. 203, 21
Colo. 27, 39 Pac. 431.

' Ind., A.S. sec. 2300; Md., P.G.L. art. 23. sec. 297; Mich.. C.L. sec.
11400, 11401. • Wabash R. Co. v. KcUey, 153 Ind. 119, 52 N.E. 152.

' Thompson v. Phelan, 22 N.H. 339 ; Thorp v. White, 13 Johns. 53 (N.Y.).



52 LAW OF THE EMPLOYMENT OP LABOR

are due for full months as they are earned. For fractions of
a month no recovery of wages can be had unless there was a
wrongful discharge, when the employee may sue, not for wages
earned, but for damages caused by the discharge.^ (See sections
8, 11.)

Numerous statutes have been enacted regulating the time o\
payment of wages, some legislatures prescribing a monthly pay-
day,2 others semi-monthly,^ bi-weekly,^ or even weekly ^ pay-
days. These laws may apply to all employers of labor, cor-
porate or individual,^ to corporations only,' or to designated
classes of employers, as operators of mines,^ mines and fac-
tories,^ or to employers having in their service more than a
designated number of laborers.^"

Courts have upheld the constitutionality of a law that applied
only to designated classes of employers," or to corporations
only,^^ as well as a law of general application." In the New
York case cited, though the law uses the words, "each and
every employee," it was construed to apply only to manual
laborers.

1 Walsh V. New York & Ky. Co., 85 N.Y. Supp. 83.

* Ariz., Pen. Code, sec. 615 ; Va., Code, sec. 3657d.

* Colo., Supp., sec. 2801ol (except railroads which must pay monthly) ; Iowa,
Code, sec. 2490 ; Ky., Stat., sec. 2739A ; Pa., B.P.Dig. p. 2077.

« Ind., A.S. sec. 7065 ; Me., R.S. ch. 40, sec. 57 ; N.J., Acts 1899, ch. 38.
' Conn., G.S. sec. 4695; Kans., G.S. sec. 1295 (other than railroad and farm-
ing corporations) ; Mass., Acts 1909, ch. 514, sec. 112.

* Ariz., Mass. (practically all but farm labor), N.J. (same as Mass.).

' Colo., Conn., Kans., R.I. * Iowa, Ky., Wyo.

' Ind., Pa. (by construction), Va. >" Me., Ky.

" Hancock v. Yaden, 121 Ind. 366, 23 N.E. 253 ; Lawrence v. Rutland R. Co.,
80 Vt. 370, 67 Atl. 1091.

« State V. Browne & Sharpe Mfg. Co., 18 R.I. 16, 25 Atl. 246 ; People v. City
of Buffalo, 57 Hun 577, 11 N. Y. Supp. 314.

" Com. V. Dunn, 170 Mass. 140, 49 N.E. 110.



WAGES 53

On the other hand, a law requiring a monthly payday was
held to restrict the constitutional right of employers and em-
ployees to contract freely as to the terms and times of pay-
ment ; ^ though it was said in a very recent case, in which the
constitutionality of a law requiring railroads to pay their em-
ployees semi-monthly was under consideration, that the state
had an interest in the welfare of its citizens which would be
served by the frequent payment of wages so that workmen
receiving small wages might be better able to make cash pur-
chases of the necessaries of life ; and that the workman and a
corporate employer do not stand, in the matter of making con-
tracts, on an equal footing, so that the state might properly act
in the manner indicated so as to in part remove the existing
inequality.'^ In another state a law requiring weekly pay-
ments of the full amount of wages due was held not to be a
valid exercise of the police power,^ and obviously a law of like
tenor, but applying only to companies, corporations, and as-
sociations, and not to individual employers, and also discrimi-
nating between manual laborers and other employees, would be
found unconstitutional by a court holding such views of the
limits of the police power.*

Falling within the purpose of the laws of this class to procure
prompt payment of wage debts are laws directing that the wages
earned by discharged employees shall be paid them at the time
of discharge without reference to the date of the customary pay-

> Johnson v. Goodyear Min. Co., 127 Cal. 4, 59 Pac. 304.

» New York Central, etc., R. Co. v. Williams, 118 N. Y. Supp. 785, 64 Misc.
Rep. 15 ; affirmed, 199 N.Y. 108, 92 N.E. 404.

» Republic Iron & Steel Co. v. State, 160 Ind. 379, 66 N.E. 1005; Braceville
Coal Co. V. People, 147 111. 66, 35 N.E. 62.

* Toledo, etc., R. Co. v. Long, 169 Ind. 316, 82 N.E. 757.



54 LAW OP THE EMPLOYMENT OP LABOR

day.^ Some of these laws make the same provision for em-
ployees voluntarily leaving service as for those discharged.
The act of the Oregon legislature to this effect requires three
days' notice of intention to leave, and excepts strikers from the
class of employees benefited, unless the regular payday falls
more than thirty days after the occurrence of the strike. Laws
of this class are constitutional,^ at least in their application to
corporations, though they may be regarded as infringing on the
constitutional rights of persons.' They do not interfere with
the employer's right to claim offsets for damages caused by the
employee's failure to fulfill his contract.* A penalty of an added
percentage, or of the continuance of wages for a limited time,
where the employer fails to comply with the statute, may be
provided for ; ^ a penalty may also be allowed for the deten-
tion of wages, without regard to the termination of employ-
ment ; ® this provision has been declared valid,^ though the
contrary has been held on the ground that the law does not
protect equally the interests of the employer and the employee.^
In order to recover such penalties the employee must comply
strictly with any prescribed formalities, as nothing will be
taken by way of intendment in the enforcement of penalizing
provisions.^ In this connection may be mentioned laws that

lAriz., Pen. Code, sec. 616; Ark., Acts 1905, No. 210; Colo., A.S. sec.
2801ql ; Oreg., Acts 1907. ch. 163 : S. C. Civ. Code, sec. 2718.

« St. Louis, I. M. & S. R. Co. v. Paul, 173 U.S. 404, 15 Sup. Ct. 1042.

» Leep V. St. Louis, etc., R. Co., 58 Ark. 407, 25 S.W. 75.

* Leep V. St. Louis, etc., R. Co., supra.

» Ark., Acts 1905, No. 210 ; Colo., A.S. sec. 2801ql.

« Ind., A.S. sec. 7068.

' Seeleyville Coal Co. v. McGlosson, 166 lad. 561, 77 N.E. 1044.

» San Antonio & A. P. R. Co. v. Wilson, 4 Texas App. 565, 19 S.W. 910.

» St. Louis, L M. & S. R. Co. r. McClerkin, 88 Ark. 277, 114 S.W. 240.



WAGES 55

require the payment of interest on any portion of the wages
retained as a pledge of continued and satisfactory service,'
and laws prohibiting entirely such retention.^

Section 23. Place of Payment. — One state has a law regu-
lating the place of the payment of wages, payment in bar-
rooms or other places where liquor is sold being prohibited ; '
while another allows a discharged employee of a railroad com-
pany to designate any station where a regular agent is kept as
the place of payment of the wages due him at the time ; * but
this matter is generally left to the determination of the parties
to the contract.

Section 24. Attachments, Garnishments, etc. — Demands by
an employee's creditors cannot be met by the employer's pay-
ment to them of wages earned, unless the employee has made
an assignment of his wages in this particular behalf, unwarranted
payments by the employer leaving him liable to the employee
himself for a second payment of the wages.^ Garnishment or
other legal proceedings must be resorted to in order to sequester
a debtor employee's earnings against his will ; and in every state
of the Union but North Carolina statutory restrictions exist as
to the amounts that can be so taken, and this state has a general
exemption provision in its constitution ; in many states the
restriction applies only where the employee has dependents.
These statutes may declare a certain percentage of the debtor's
wages exempt, or they may provide that wages for a certain

« La.. Acts 1908, No. 31.

« III.. R.S. ch. 48, sec. 16 ; Conn., G.S. hoc. 4696.

» Cal., Pen. Code, sec. 680. * Ark.. Acts 1905. ch. 210.

' Southern R. Co. v. Fulford, 128 Ga. 103, 54 S.E. 68 ; Torre Haute A I. R.
Co. V. Baker, 122 Ind. 433, 24 N.E. 83 ; Crisp r. R. Co.. 98 Mich. 651, 57 N.W.
1050 ; Burns v. Marlaud Mfg. Co., 80 Mass. 487.



56 LAW OF THE EMPLOYMENT OF LABOR

period or of a certain amount cannot be taken for debt. The
statute may exempt all wages in the hands of the employer from
attachment except for board and lodging for a specified term,^
or all current wages.^

Wages improperly in the hands of a magistrate through
garnishment may be recovered by a rule against him.' An
employer cannot allow wages to accumulate in his hands un-
til the total exceeds the exempted amount and thus defeat
the provisions of the law,* nor can an employee make a valid
contract waiving his exemption rights.^ The law exempting
wages is held to protect from attachment also any property
purchased by the use of the exempted wages.® Courts differ
on the question as to whether or not the protection af-
forded by exemption laws extends to non-residents.^ The
matter may be determined by statute, as, for instance, a dec-
laration that the law of the state of residence shall control.*
Assigning claims to non-residents or otherwise taking or send-
ing them out of the state for collection in order to avoid local
exemption laws is prohibited by the statutes of a number of
states, and a law of this sort was held to support a request
for an injunction against a creditor prosecuting his suit out-
side the state against a garnishee for the recovery of a debt
that was exempt under the law of the state of residence of both

1 Pa., B. P. Dig. p. 2077, sees. 25, 26 ; Acts 1905. No. 99.

2 Texas, R.S. sees. 2395, 2397. ' Curran v. Fleming, 76 Ga. 98.

* Chapman v. Berry, 73 Miss. 437, 18 So. 918.

» Richardson v. Kaufman, 143 Ala. 243, 39 So. 368 ; Green v. Watson, 75 Ga.
471.

« Auitman & Taylor Co. v. Smith. 119 S.W. 1178 (Ky.).

' Cf. Wright V. R. Co., 19 Nebr. 175, 27 N.W. 90, and Lyon v. CaUopy, 87
Iowa 567. 54 N.W. 476.

* S. Dak., Justices' Code, sec. 41.



WAGES 67

debtor and creditor.^ The debtor was also held to be entitled
to a judgment in damages against the creditor for the amount of
wages collected by him in violation of the law. In another case
such a law was held to be unconstitutional on the ground that
it discriminated between wage earners and other debtors, and
between creditors residing within the state and those residing
outside, placing the former at a disadvantage ; also as extend-
ing the exemption laws of a state beyond its boundaries.^ The
weight of opinion seems to be, however, that such laws are con-



Online LibraryLindley Daniel ClarkThe law of the employment of labor → online text (page 5 of 32)