Connally V General Construction (1926)
Connally V General Construction (1926)
Connally V General Construction (1926)
385
(1926)
269 U.S. 385
CONNALLY, Commissioner of Labor of Oklahoma, et al. v.
GENERAL CONST. CO. No. 314. Argued Nov. 30 and Dec.
1, 1925. Decided Jan. 4, 1926.
The material
averments of the bill, shortly stated, are to the following effect: The
construction company, under contracts with the state, is engaged in
constructing certain bridges within the state. In such work, it employs a
number of laborers, workmen, and mechanics, with each of whom it has
agreed as to the amount of wages to be paid upon the basis of an eight-hour
day, and the amount so agreed upon is reasonable and commensurate with
the services rendered and agreeable to the employee in each case.
The Commissioner of Labor complained that the rate of wages paid by the
company to laborers was only $3.20 per day, whereas, he asserted, the
current rate in the locality where the work was being done was $3.60, and
gave notice that, unless advised of an intention immediately to comply with
the law, action would be taken to enforce compliance. From the
correspondence set forth in the bill, it appears that the commissioner based
his complaint upon an investigation made by his representative concerning
wages 'paid to laborers in the vicinity of Cleveland,' Okl., near which town
one of the bridges was being constructed. This investigation disclosed the
following list of employers with the daily rate of wages paid by each: City,
$3.60 and $4; Johnson Refining Co., $3. 60 and $4.05; Prairie Oil & Gas,
$4; Gypsy Oil Co., $4; Gulf Pipe Line Co ., $4; Brickyard, $3 and $4; I.
Hansen, $3.60; General Construction Company, $3.20; Moore & Pitts Ice
Company, $100 per month; cotton gins, $3. 50 and $4; Mr. Pitts, $4;
Prairie Pipe Line Company, $4; C. B. McCormack, $ 3; Harry McCoy, $3.
The scale of wages paid by the construction company to its laborers was
stated to be as follows: Six men at $3.20 per day, 7 men at $3.60, 4 men at
$4.00, 2 men at $4.40, 4 men at $4.80, 1 man at $5.20, and 1 man at
$6.50.
involved or the subjects with which they dealt, a standard of some sort was
afforded.' See also, Waters- Pierce Oil Co. v. Texas (No. 1), 212 U.S. 86, 108
, 29 S. Ct. 220. Illustrative cases on the other hand are International
Harvester Co. v. Kentucky, supra, Collins v. Kentucky, supra, and United
States v. Cohen Grocery Co., supra, and cases there cited. The Cohen
Grocery Case involved the validity of section 4 of the Food Control Act of
1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, 3115 1/8 ff), which
imposed a penalty upon any person who should make 'any unjust or
unreasonable rate or charge, in handling or dealing in or with any
necessaries.' It was held that these words fixed no ascertainable standard of
guilt, in that they forbade no specific or definite act.
Among the cases cited in support of that conclusion is United States v.
Capital Traction Co., 34 App. D. C. 592, 19 Ann. Cas. 68, where a statute
making it an offense for any street railway company to run an insufficient
number of cars to accommodate passengers 'without crowding' was held to
be void for uncertainty. In the course of its opinion, that court said (pages
596, 598):
'The statute makes it a criminal offense for the street railway companies
in the District of Columbia to run an insufficient number of cars to
accommodate persons desiring passage thereon, without crowding
the same. What shall be the guide to the court or jury in ascertaining
what constitutes a crowded car? What may be regarded as a crowded
car by one jury may not be so considered by another. What shall
constitute a sufficient number of cars in the opinion of one judge
may be regarded as insufficient by another. ... There is a total
absence of any definition of what shall constitute a crowded car. This
important element cannot be left to conjecture, or be supplied by
either the court or the jury. It is of the very essence of the law itself,
and without it the statute is too indefinite and uncertain to support
an information or indictment.
[269 U.S. 385, 393] ... The dividing line between what is lawful and
unlawful cannot be left to conjecture. The citizen cannot be held to answer
charges based upon penal statutes whose mandates are so uncertain that
they will reasonably admit of different constructions. A criminal statute
cannot rest upon an uncertain foundation. The crime, and the elements
constituting it, must be so clearly expressed that the ordinary person can
intelligently choose, in advance, what course it is lawful for him to pursue.
Penal statutes prohibiting the doing of certain things, and providing a
punishment for their violation, should not admit of such a double meaning
that the citizen may act upon the one conception of its requirements and
the courts upon another.'
In the light of these principles and decisions, then, we come to the
consideration of the legislation now under review, requiring the contractor,
at the risk of incurring severe and cumulative penalties, to pay his
employees 'not less than the current rate of per diem wages in the locality
where the work is performed.'
We are of opinion that this provision presents a double uncertainty, fatal to
its validity as a criminal statute. In the first place, the words 'current rate of
wages' do not denote a specific or definite sum, but minimum, maximum,
and intermediate amounts, indeterminately, varying from time to time and
dependent upon the class and kind of work done, the efficiency of the
workmen, etc., as the bill alleges is the case in respect of the territory
surrounding the bridges under construction. 1 The statutory phrase
reasonably cannot be confined to any of these amounts, since it imports
each and all of them. The [269 U.S. 385, 394] 'current rate of wages' is not
simple, but progressive-from so much (the minimum) to so much (the
maximum), including all between; and to direct the payment of an amount
which shall not be less than one of several different amounts, without
saying which, is to leave the question of what is meant incapable of any
definite answer. See People ex rel. Rodgers v. Coler, 166 N. Y. 1, 24-25, 59
N. E. 716, 52 L. R. A. 814, 82 Am. St. Rep. 605.
Nor can the question be solved by resort to the established canons of
Footnotes
[ Footnote 1 ] The commissioner's own investigation shows that wages
ranged from $ 3 to $4.05 per day, and the scale of wages paid by the
construction company to its laborers, 25 in number, ranged from $3.20 to
$6.50 per day, all but 6 of them being paid $3.60 or more.