In the superior court of Pierce County, Wash., where the trial of the cause was had, a judgment was rendered for the plaintiffs for the amount demanded, and it was adjudged that the rights of the lienors took precedence over the liens of the mortgages which Caesar and wife owned. From this decision the defendants appealed to the supreme court of the State, alleging that the act in question was unconstitutional, and that even if it was not unconstitutional, yet the liens of the mortgages held by Caesar and wife should have priority over the laborers' liens. The supreme court rendered its decision February 9, 1901, declaring the act to be valid and constitutional, but sustaining the defendant's claim as to the priority of the liens of the mortgages, and upon this point it reversed the judgment of the lower court. the opinion of the supreme court Judge Dunbar, who delivered it, used the following language: In It is urged that this law falls under the ban of section 12, art. 1, of the State constitution, which provides that "no law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens or corporations." We do not think this criticism is deserved. Laws are uniformly upheld where all persons, even though they may constitute a class, who fall under the operations of the law are treated alike. Mr. Cooley, in his work on Constitutional Limitations (5th ed., p. 482), thus tersely states the rule, under the title of "Unequal and Partial Legislation:" "These discriminations are made constantly, and the fact that the laws are of local or special operation only is not supposed to render them obnoxious in principle. The legislature may also deem it desirable to prescribe peculiar rules for the several occupations, and to establish distinctions in the rights, obligations, duties, and capacities of citizens. The business of common carriers, for instance, or of bankers, may require special statutory regulations for the general benefit, and it may be matter of public policy to give laborers in one business a specific lien for their wages when it would be impracticable or impolitic to do the same for persons engaged in some other employments. If the laws be otherwise unobjectionable, all that can be required in these cases is that they be general in their application to the class or locality to which they apply, and they are then public in character, and of their propriety and policy the legislature must judge." Without further traversing the arguments or position of the appellants, we think that the complaints were sufficient and the statute a legal enactment. But we come now to appellant Caesar's affirmative defense, viz, that he was the owner of mortgages and other liens which had been executed and recorded prior to six months preceding the filing of these liens. It is the contention of the respondents, and evidently was the theory entertained by the court, that the law of 1897 was intended to give liens filed in accordance with its provisions a right of priority over mortgages which had been executed and recorded prior to the time of the commencement of the work for which the liens were filed. do not so construe this statute. It seems to us that the legislative intention was simply to extend the time of the lien from the time which was allowed by the old law to six months as provided in the We new, and to make certain the rights of laborers in that respect-a more liberal provision, so far as the laborer is concerned, but not differing in principle from the previous law. It is true that the language is "no mortgage, deed of trust, or conveyance;" but we think that the intention of the lawmakers will not be reached by giving a literal interpretation to the language used, and that, if it had been the intention of the legislature to have made an extraordinary provision, as this would be if so construed, it would have used language more clearly expressing such intention. It will be observed that a mortgage, under the provisions of this law, is placed in the same category as a conveyance; and certainly the legislature did not intend to provide that one could not convey or deed his land without subjecting it to these possible incumbrances. With this view of the law, it is not necessary to enter into a discussion of the power or want of power of the legislature to pass such a statute. This holding will reverse the judgment of the lower court, so far as it applies to Caesar and wife. DECISIONS UNDER COMMON LAW. CONTRACT OF EMPLOYMENT-DISCHARGE FOR CAUSE-ENTIRE CONTRACT-PART PERFORMANCE-Hildebrand v. American Fine Art Co., 85 Northwestern Reporter, page 268.-Alfred L. Hildebrand was employed by the above-named company under a contract for a year's service. In less than half a year he was discharged without his consent, but for cause. Hildebrand died soon after his discharge, and Amy I. Hildebrand, having been duly authorized to prosecute the action for the benefit of his estate, brought suit against the company above named for damages for breach of the contract of employment. In the circuit court of Milwaukee County, Wis., where the trial was had, she recovered a judgment for $517.04, the amount of Hildebrand's wages which was unpaid at date of his discharge. From this judgment the company appealed the case to the supreme court of the State, which rendered its decision February 26, 1901, and sustained the action of the lower court. In its opinion, delivered by Judge Marshall, the court laid down some principles of the common law which were applicable to the case, and the same are well shown in the syllabus of the opinion, which was prepared by Judge Marshall. It reads, in part, as follows: 3. The rule that where an employee under an entire contract wrongfully terminates it he can not recover thereon, or at all, for services rendered up to the time of such termination, does not apply to a case where such a contract has been terminated by the employer for cause. 4. The rule generally in this country is that, where a servant is prevented from performing his contract, either from sickness or death or by reason of being discharged from the master's service, whether rightfully or wrongfully, he is entitled to recover for the services actually rendered, subject to the right of a recoupment in case of a rightful discharge, as hereafter stated. 5. In an action against an employer by an employee who has been discharged for cause, to recover for services rendered, the employer may recoup such damages as he is legally entitled to by reason of the facts which rendered such discharge justifiable. 6. Though the general rule is that where a contract is entire the consideration moving from each party to the other is entire, and the rights of the parties reciprocal, full performance by one being requisite to his claiming any benefit under the contract from the other, it admits of exceptions, and one of them is that it does not apply to a party failing to complete his contract when prevented from so doing by the other party, regardless of the reason for such prevention. 7. The circumstances of terminating an entire contract for labor bears on the right of one seeking compensation for part performance thereof, as follows: (a) If one party withdraws by consent of the other after part performance of such a contract, he can recover thereon at the contract rate for what he has done. (b) If a party to such a contract be wrongfully prevented by the other from rendering full performance, he can recover upon the contract for the services rendered prior to such prevention, and his damages for not being allowed to complete the contract, not exceeding the full amount he could have earned by such performance, such amount, prima facie, being full wages for the balance of the contract period, which may be reduced by proof that wages were or might reasonably have been earned during such time. (c) If, after part performance of such a contract by one party, he is rightfully prevented by the other from further performance, he can recover on the contract for services rendered up to the time of such prevention, subject, however, to such damages as the other party may recoup in the action for the former's misconduct. 8. In an action to recover for part performance of a contract of the party who has rightfully terminated the same, prima facie the amount recoverable is the contract rate for services rendered up to the time of the discharge; and that will prevail in the absence of a claim for damages properly pleaded as a counterclaim and established on the trial. 9. A person circumstanced as last above indicated must sue upon the contract or for damages, not upon a quantum meruit, though his recovery must be upon that basis, it being presumed that he earned and is entitled to the contract rate for the time his services continued till the contrary is shown by evidence to sustain a properly pleaded counterclaim. EMPLOYERS' LIABILITY-FELLOW SERVANTS-VICE-PRINCIPALSNEGLIGENCE OF THE EMPLOYER-Uren v. Golden Tunnel Mining Co., 64 Pacific Reporter, page 174.-In this case the action was brought by Frank Uren against the above-named company in the superior court of King County, Wash. He sued for damages alleged to have been sustained from injury caused by a stone rolling down a mountain side and striking his foot, at a time when he was working for said company. The evidence showed that the mining company was operating two tunnels on the side of a mountain, one eight or nine hundred feet below the other; that the work at the upper tunnel was done by one gang of men, and at the lower tunnel by a separate gang; that there were two mining superintendents, one at the upper tunnel and one at the lower; that each of these superintendents had charge of his respective tunnel and his respective gang of men, had authority to control and direct their operations, and had absolute control, subject only to the orders of the president; that Uren was working at the lower tunnel and had left the mouth of the lower tunnel and started up the mountain for the purpose of sharpening his tools at the blacksmith's shop, when he saw a rock, thrown by the gang at the upper tunnel, rolling down the mountain with great velocity, and that he was struck by the same on the foot, which was mashed to such an extent that he had to have a portion of the bones removed and was permanently lamed. Upon the trial of the cause judgment was rendered in favor of the plaintiff, Uren, and the defendant company appealed the case to the supreme court of the State, which rendered its decision March 13, 1901, and affirmed the decision of the lower court. One point of some interest was decided by the court, and upon this Judge Dunbar, who delivered the opinion, spoke as follows: The next contention is that the respondent was injured by the action of fellow-servants. This contention is also untenable. The work of removing the rocks was done under the supervision of one Beach, who had control of the work at that time, and had been instructed by Ellis, the tunnel superintendent [at the upper tunnel], to throw the rock down the cañon. Beach was evidently acting as a vice-principal, and the men working with him were working under his supervision and control, although there seems to be sufficient testimony here to warrant the jury in concluding that not only Beach, but Hager, the president, and Ellis, the superintendent of the upper tunnel, as well as Williams, the superintendent of the lower tunnel, were all guilty of negligence; for the testimony shows that this work was planned and the manner of its execution directed by the president, and that Williams, the superintendent of the lower tunnel, was notified on the morning of the accident that the rock would be thrown down the gorge, but that he neglected to notify the respondent of that fact when he went to work. We can not understand how, under any theory of law, the man in charge of the work at the upper tunnel could be held to be a fellowservant with an employee working under another superintendent in another locality, and where no supervision of each other's work was possible. There can be no question but that it was negligence on the part of the appellant to throw these rocks down this narrow gorge, where men were working below, under the circumstances as shown by the testimony in this case. LEADING ARTICLES IN PAST NUMBERS OF THE BULLETIN. No. 1. Private and public debt in the United States, by George K. Holmes. Employer and employee under the common law, by V. H. Olmsted and S. D. No. 2. The poor colonies of Holland, by J. Howard Gore, Ph. D. The industrial revolution in Japan, by William Eleroy Curtis. Notes concerning the money of the U. S. and other countries, by W. C. Hunt. No. 3. Industrial communities: Coal Mining Co. of Anzin, by W. F. Willoughby. No. 5. Convict labor. Industrial communities: Krupp Iron and Steel Works, by W. F. Willoughby. No. 6. Industrial communities: Familistère Society of Guise, by W. F. Willoughby. Cooperative distribution, by Edward W. Bemis, Ph. D. No. 7. Industrial communities: Various communities, by W. F. Willoughby. Rates of wages paid under public and private contract, by Ethelbert Stewart. No. 8. Conciliation and arbitration in the boot and shoe industry, by T. A. Carroll. Railway relief departments, by Emory R. Johnson, Ph. D. No. 9. The padrone system and padrone banks, by John Koren. The Dutch Society for General Welfare, by J Howard Gore, Ph. D. No. 10. Condition of the Negro in various cities. Building and loan associations. No. 11. Workers at gainful occupations at censuses of 1870, 1880, and 1890, by W.C.Hunt. Public baths in Europe, by Edward Mussey Hartwell, Ph. D., M. D. No. 12. The inspection of factories and workshops in the U.S., by W. F. Willoughby. Mutual rights and duties of parents and children, guardianship, etc., under the law, by F. J. Stimson. The municipal or cooperative restaurant of Grenoble, France, by C. O. Ward. No. 13. The anthracite mine laborers, by G. O. Virtue, Ph. D. No. 14. The Negroes of Farmville, Va.: A social study, by W. E. B. Du Bois, Ph. D. Incomes, wages, and rents in Montreal, by Herbert Brown Ames, B. A. No. 15. Boarding homes and clubs for working women, by Mary S. Fergusson. The trade-union label, by John Graham Brooks. No. 16. Alaskan gold fields and opportunities for capital and labor, by S. C. Dunham. No. 17. Brotherhood relief and insurance of railway employees, by E. R.Johnson, Ph.D. The nations of Antwerp, by J. Howard Gore, Ph. D. No. 18. Wages in the United States and Europe, 1870 to 1898. No. 19. Alaskan gold fields and opportunities for capital and labor, by S. C. Dunham. The Negro in the black belt: Some social sketches, by W. E. B. Du Bois, Ph. D. No. 23. Attitude of women's clubs, etc., toward social economics, by Ellen M. Henrotin. No. 25. Foreign labor laws: Great Britain and France, by W. F. Willoughby, No. 28. Voluntary conciliation and arbitration in Great Britain, by J. B. McPherson. |