Summary
In State v. Wright, 97 Wn. 304, 307, 166 P. 645 (1917), the defendant insinuated that the prosecutor did not have the courage to dismiss the action, and the court held it was not error for the prosecutor to state his belief that the defendant was guilty in rebuttal.
Summary of this case from State v. SargentOpinion
November 14, 1917.
Merton E. Lewis, Attorney-General [ Edmund H. Lewis, Deputy Attorney-General, of counsel], for the appellant.
Richard Hurley [ Charles J. Palmer of counsel], for the respondent.
The claim of the respondent for labor performed prior to May 10, 1894, rests on chapter 385 of the Laws of 1870; and his claim for labor performed subsequent to that time rests on said statute as amended by chapter 622 of the Laws of 1894, which amendment became effective on that day.
The unamended statute in section 1 provides as follows: "On and after the passage of this act, eight hours shall constitute a legal day's work for all classes of mechanics, workingmen and laborers, excepting those engaged in farm and domestic labor; but overwork for an extra compensation by agreement between employer and employee is hereby permitted." The 2d section merely makes the act applicable to persons in the employ of the State or municipal corporations therein or persons contracting with the State or such corporations for performance of public works.
That act was before the court in McCarthy v. Mayor, etc. ( 96 N.Y. 1). The court called attention to the fact that the act was an "eight-hour statute" but that it did not assume to regulate the rate of wages, and that by the terms of the act over work for extra compensation by agreement was permitted. The court continued: "The language of the act does not authorize any inference that it was intended to confer the right upon persons employed, to charge for more than one day's labor for the services rendered in any calendar day; but on the contrary such an inference is plainly repelled by the express provision authorizing extra compensation for over work when the agreement provides for it. By settled rules of construction this provision must be held to mean that neither extra labor can be required, nor extra compensation demanded, except in the case of an agreement therefor previously made by the parties. So when the exigencies of his employment, or the requirements of his employer, call upon the laborer for a greater number of hours of labor than those specified in the statute, it is optional with him, either to refuse to perform them, or to insist, as the condition of their performance, upon the payment of extra compensation for the extra work; but in the absence of such an agreement, the provisions of the act do not authorize a demand for the extra compensation."
There was in this case no express agreement for extra compensation and the circumstances do not warrant an inference that there was such an implied agreement. On the contrary, the conduct of the claimant indicates that he understood that he was receiving each month all the compensation to which he was entitled. Each monthly payroll signed by him contained a statement that his compensation was fixed at forty-two dollars and fifty cents per month, and he acknowledged receipt of the same. There was no protest or reservation of a claim for over work or complaint that his hours of labor were in excess of the statutory requirements, or for any other reason were unduly prolonged. The case cited is a complete answer to the claim of the respondent for services performed prior to the amendment of the statute.
By that amendment there was added to section 2 of the act the following: "All such mechanics, workingmen and laborers so employed shall receive not less than the prevailing rate of wages in the respective trades or callings in which such mechanics, workingmen and laborers are employed in said locality." By such amendment the act regulated not only the hours of labor, but also the rate of wages, and the observation in the McCarthy Case ( supra) that the act was not intended to affect or regulate the rate of wages became obsolete. The precise question involved in so much of this claim as relates to services rendered subsequent to May 10, 1894, the day when the amendment became effective, was before this court in McCammon v. State of New York ( 117 App. Div. 913), decided without opinion. That decision is controlling on this court as to all questions raised under the amended statute. (See, also, Clark v. State of New York, 142 N.Y. 101. )
It follows that the judgment should be modified by reducing the same to so much of the respondent's claim as accrued subsequent to May 10, 1894.
The judgment should be modified by reducing the same to $141.25, and as so modified affirmed, without costs.
Judgment modified by reducing the same to $141.25, and as so modified unanimously affirmed, without costs.