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the jury that they could not reject any of the testimony of a witness who had committed deliberate perjury during the trial, if upon any point, however unimportant, he was corroborated by other credible evidence in the case, but that in such case they must accept and give it credit.
In Cameron v. Wentworth, 23 Mont. 70, 57 Pac. 648, it was said: "It is undoubtedly the rule that, where a witness has willfully sworn falsely as to any material matter upon the trial, the jury is at liberty to discard his entire testimony, except in so far as it has been corroborated by other credible evidence.” Here the power of the jury to reject such evidence absolutely and without consideration is limited to that portion of it which is not corroborated. Such portion of it as is corroborated, the jury may not reject without consideration, but must weigh it in the light of the other evidence and attach to it such value as they think it entitled to under their power to judge of the credibility of witnesses generally. In State v. De Wolfe, 29 Mont. 415, 74 Pac. 1081, the jury were instructed as follows: "If you believe that any witness who has testified in this case has willfully and intentionally testified falsely as to any material matter in this case, the jury have a right to disregard any or all of the testimony of such witness." It was held that the omission of the exception was error, the court following the rule of Cameron v. Wentworth, supra, and approved in Bonnie v. Earll, 12 Mont. 239, 29 Pac. 8S2. Section 3390 of the Code of Civil Procedure provides: "The jury, subject to the control of the court in the cases specified in this Code, are the judges of the effect or value of evidence addressed to them, except when it is declared to be conclusive. They are, however, to be instructed by the Court on all proper occasions. That a witness false in one part of his testimony is to be distrusted in others." The Court, in Cameron v. Wentworth, supra, con sidered this provision somewhat and held that its meaning is that a witness whose testimony is willfully false in' a material matter is to be distrusted as to the whole of his testimony, thus importing into the statute the meaning which the Legislature evidently intended should be given to it. There is serious doubt whether, in view of this provision, what is stated in Cameron Wentworth to be the undoubted rule, is not logically wrong. People v. Sprague, 53 Cal. 491; People v. Righetti, 66 Cal. 181, 4 Pac. 1063, 1185; White v. Disher, supra (Cal.) 7 Pac. 826; 2 Wigmore on Evidence, $ 1012. Yet, since this phase of the matter has not been argued in this case, we shall not undertake to decide it, because the conclusion that it is wrong would necessitate the overruling of Cameron v. Wentworth and State v. De Wolfe, which we do not care to do until the question is raised directly and properly argued.
We do not think, however, that the instruction complained of has the import which counsel give to it. In the first place, it was impressed upon the jury that they were the exclusive judges of the credit to be given to the witnesses. They were told that they had a right to reject all the testimony of any witness who had been guilty of willful perjury, unless "on any point” his statement was corroborated. The jury must have understood from this that they were not bound to accept any part of the statement as true, but that they were still at liberty to weigh it and believe it or not as their judgment dictated. In effect the instruction told the jury that they might reject the testimony absolutely without consideration, unless on any point they found it corroborated, but any man of reasonable intelligence, reading it, would not understand that this implied that, if they found it corroborated in any respect, they should for that reason deem it credible and so treat it in making their finding. The only restriction cast upon them by this part of the instruction was that they were compelled to consider the testimony, but they were still left to give it such credit as they thought it entitled to. Manifestly, then, so understood, the instruction, while not technically correct under the cases cited, is not so substantially erroneous as to be deemed prejudicial to the defendant.
The instructions requested and refused were properly refused, because no one of them embodies a correct statement of the law. To illustrate: Instruction No. 6, after defining robbery in the words of the statute, reads as follows: “You are further instructed that one of the essential elements of robbery is the felonious taking of personal property; and in this case if you find that the defendant, Marion Lee, or Kail Yancey, or either of them did not take any property from the possession of the complaining witness, you must find the defendant not guilty.” The defendant and Kail Yancey were informed against jointly. Each claimed a separate trial. This instruction would have told the jury that, if they found that either Marion Lee or Kail Yancey did not take any property from the possession of the complaining witness, the defendant, Marion Lee, should be found not guilty. Evidently Marion Lee was not entitled to an acquittal solely on the ground, however conclusively the fact may have been established, that Kail Yancey had not taken any prop. erty from the possession of the complaining witness. The other paragraphs requested are open to the same or a similar objection.
Let the judgment and order be affirmed. Affirmed.
HALLOWAY, J., concurs.
MILBURN, J. I respectfully dissent. I do not think that the defendant, Lee, had a
fair trial. Instruction numbered 8 is, in my opinion, erroneous and prejudicial. It is plainly wrong.
(34 Mont. 570)
BLDG. & MFG. CO. (Supreme Court of Montana. Dec. 13, 1906.) 1. STATUTES – CONSTRUCTION INDEFINITENESS OF LANGUAGE.
A statute will not be held invalid because of indefiniteness of_the language employed, if the intent of the Legislature can be divined and given effect.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, 88 266, 269.] 2. MASTER AND SERVANT-STATUTORY REGULATION-HOURS OF SERVICE.
Law's 1905, p. 105, c. 50, 1, providing that "eight hours shall constitute a day's work on municipal work, etc., in ore mills, smelters, and mines, and section 2, providing for the punishment of any one violating "any of the provisions of section 1," prohibits the employment of laborers more than eight hours a day, and does not contemplate punishing those who fail to work that long. 3. SAME-EFFECT OF STATUTE.
Laws 1905, p. 105, c. 50, § 1, fixing eight hours as a day's work on municipal work, etc., and in ore mills, smelters, and mines, and section 2, providing for the punishment of "every person, etc., violating any of the provisions of section 1, apply to both employers and employés. 4. CONSTITUTIONAL LAW-JUDICIAL REVIEW OF LEGISLATIVE POLICY.
It is no valid objection to Laws 1905, p. 10., c. 50, $$ 1, 2, prohibiting the employment of laborers on municipal work, etc., and in ore mills, smelters, and mines, for more than eight hours a day, that no exception is made for einergencies where life or property is in peril ; it being a principle that ordinarily courts will not review the policy of legislation. 1. SAME - EIGIIT-HOUR LAW - FREEDOM TO CONTRACT
Laws 1905, p. 105, c. 50, $$ 1, 2, prohibiting the employment for more thari eight hours per day of laborers on municipal work in ore mills, smelters, and mines, constitute a valid (exercise of police power, and do not infringe the freedom to contract, guarantied by Const. U. S. Amend. 14.
[Ed. Note-For cases in point, see Cent. Dig. vol. 10, Constitutional Law, $ 170.] 6. SAME-EQUAL PROTECTION OF THE LAWS.
The equal protection of the laws guarantied by the United States Constitution is not denied hy Laws 1903, p. 105, c. 50, $$ 1, 2. prohibiting the employment for more than eight hours a day of laborers on municipal work, etc., and in ore mills, smelters, and mines.
HOLLOWAY, J. The Livingston Concrete Building & Manufacturing Company, a domestic corporation, was charged, by an information filed in the district court of Park county, with violating the provisions of chapter 50, p. 105, Laws 1905, known as the "Eighthour Law,” in this: that the defendant, having a contract with the city of Livingston for the construction of certain cement sidewalks, crosswalks, and curbs, did unlawfully and willfully cause, suffer, and permit its servants and employés engaged in such work to work for a longer period than eight hours in a day. To this information the defendant interposed a general demurrer, which was sustained. The state appeals from the judgment for the defendant on the demurrer to the information.
The information states facts sufficient to constitute a public offense, if chapter 50 above is a valid legislative enactment capable of being enforced; but on behalf of respondent it is urged (1) that the act is so indefinite as to be incapable of enforcement, and (2) that, even if sufficiently definite, the act is unconstitutional and void.
The provisions of chapter 50, above, are as follows:
“Section 1. A period of eight (3) hours shall constitute a day's work on all works or undertakings carried on or aided by any municipal, county or state government, and on all contracts let by them, and in mills and smelters for the treatment of ores, and in underground mines."
“Sec. 2. Every person, corporation, stock company or association of persons who violate any of the provisions of section one (1) of this act shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by fine of not less than one hundred dollars ($100) nor more than five hundred ($500) dollars or by imprisonment in the county jail for not less than thirty days nor more than six months, or by both such fine and imprisonment."
1. It is said that the statute is too indefinite to be enforceable, in that (1) it cannot be determined whether it intends to impose the penalty prescribed upon the man who works less than eight hours in a day, or upon the man who works more than eight hours in a day, or upon both ; (2) it cannot be determined whether it is intended to punish the employer, the employé, or both; and (3) it is so indefinite that, in fact, it cannot be said to forbid the employment of a laborer for more than eight hours in a day. While it may be conceded that the intention of the lawmakers might have been expressed in plainer terms, we cannot hold a solemn leg. islative enactment of no force or effect because of the indefinite language in which it is couched, unless we find ourselves unable to divine the purpose or intent of the Legislature. Ilochheimer, Criminal Law (2d Ed.) $ 28. For, after all, the function of the court
Appeal from District Court, Park County ; Frank Henry, Judge.
The Livingston Concrete Building & Manufacturing Company was charged with violating the provisions of the eight-hour law. From a judgment sustaining defendant's demurrer to the information, the state appeals. Reversed and remanded.
Albert J. Galen, Atty. Gen., W. H. Poorman, Asst. Atty. Gen., E. M. Hall, Asst. Atty. Gen., and T. J. Walsh, for the State. Dan Yancey, for respondent.
is to determine and make known, if possible, in a day; that number of hours of continuous such purpose or intent; for the intention of labor being fixed by the statute as the maxithe Legislature is the essence of the law. mum for a day's work. In Edwards v. Morton, 92 Tex. 152, 46 S. W. (2) As it is the purpose of the statute to 792, it is said: “The intention of the Leg conserve the health and promote the hapislature in enacting a law is the law itself, piness of the workingman—not to curtail and must be enforced when ascertained." In his capacity to earn money or to set bounds Manhattan Co. v. Kaldenberg, 165 N. Y. 1, 58 upon the greed of his employer—the statute N. E. 790, it is said: "In construing stat is written in terms broad enough to include utes the proper course is to start out and within its inhibition both the employer and the follow the true intent of the Legislature, and employé. The language is: “Every person, to adopt that sense which harmonizes best corporation, stock company or association of with the context, and promotes in the fullest persons who violates any of the provisions manner the apparent policy and objects of of section one of this act shall be guilty of a the Legislature." 2 Lewis' Sutherland on misdemeanor," etc. In Short v. Bullion-Beck Statutory Construction (2d Ed.) § 303. It & C. M. Co., 20 Utah, 20, 57 Pac. 720, 45 L. is an elementary rule that effect must be R. A. 603, a similar statute of the state of given to a statute, if possible. If the stat Utah was considered, and it was there held ute is plain and unambiguous, so that no that the statute applies both to the employer doubt can arise from the language employed and employé, and that the protection which as to its scope and meaning, then there is the state throws around the citizen by the not any room for interpretation or construc enactment of such a law cannot be waived tion, and the reading of the statute itself is even by the employé, the person for whose a sufficient declaration of its meaning.
benefit the statute is primarily enacted. We "When the meaning of a statute is doubtful, do not think that in this respect the statute the reason and purpose of its enactment, are is at all indefinite, but, on the contrary, the to be taken into consideration in construing meaning of the language employed seems to it and determining the intention of the Leg. be plain. islature. In other words, though a penal (3) It is said that the statute does not in statute cannot be extended by construction,
terms prohibit the workingman from engait should, if possible, receive such a construc
ging in any of the designated employments for tion as, when practically applied, will tend to
more than eight hours in a day, nor does it suppress the evil which the Legislature in
specifically prohibit the employer from hiring tended to prohibit.” Clark & Marshall on
him to do so, and that, in fact, at most, the the Law of Crimes, p. 97; 2 Lewis' Suther
statute does not do more than define a workland on Statutory Construction (2d Ed.) SS
ing day. But the courts have not had dif528, 530.
ficulty in reaching an altogether different (1) The history of labor legislation makes
conclusion. The statute of Utah considered clear the evil to suppress which such statutes
in Short v. Bullion-Beck & C. M. Co., above, are enacted. It is the continuous employ
provides in section 1 (Sess. Laws 1896, p. ment of workingmen for such length of time
219, c. 72) that the period of employment of as to imperil their lives or health that is
workingmen in underground mines shall be sought to be avoided, and, in the interest of
eight hours per day. In section 2 the same the general welfare of its citizens, the state
language is employed with respect to mills undertakes to correct the evil as far as it
and smelters for the treatment of ores. Secmay; or it may have been the purpose of the
tion 3 provides: "Any person, body corstate to stamp with its approval the view now entertained by many, that, all things consid
porate, agent, manager or employer who shall ered, the general welfare of workingmen, up
violate any of the provisions of sections 1
and 2 of this act, shall be deemed guilty of on whom rests a portion of the burdens of
a misdemeanor," etc. Respecting this statgovernment, will be best subserved if labor performed for eight hours continuously be
ute, the court said: "When the plaintiff taken as the measure of a full day's work ;
[employé] voluntarily performed services at that the restriction of a day's work to that
the request of the defendant [employer) in number of hours will so far promote the
the mill, and worked 12 hours, instead of 8 morality and improve the physical and in
hours, there was a violation of the statute.
* * tellectual condition of workingmen as to en
* When the defendant [employer] reable them the better to discharge the duties quested the plaintiff to work 12 hours each of citizenship. With these objects in view, | day, and plaintiff complied with that request, it cannot be supposed that the Legislature in
the law was violated by the act of each partended to impose punishment upon every
ty." In State v. Whitaker, 160 Mo. 59, 60 laborer engaged in any of the designated S. W. 1008, the Supreme Court of Missouri employments who fails to work for the full
had under consideration a statute which reperiod of eight hours in every working day. quires that every electric street car, other But, on the other hand, it is apparent that than trail cars which are attached to motor the object and purpose in view were to pre cars, shall be provided during certain months vent the employment of a laborer in any of of each year with a suitable screen which such employments for more than eight hours shall fully and completely protect the driver,
motorman, gripman, or other person guiding act. If it was the legislative will that no or directing the car from wind and storm. exception be made to the rule announced, The penalty clause is as follows: "Any per the courts cannot say that a different policy son, agent or officer of any association or cor should have been pursued. In fact, these poration violating any of the provisions of objections only raise the question of legisthis act shall be deemed guilty of a misde lative policy, with which the courts have meanor,” etc. The court held that this stat nothing to do, unless it should be made to ute is not so indefinite or uncertain in its
appear that in its operation the act would meaning as to be inoperative, but that it be so unreasonable that it could not be sup imposes upon every company or association posed that the Legislature ever intended it of persons operating electric cars the duty to have such effect. 20 Enc. Law (2d Ed.). of providing the screens on their cars, and 599. Whether this statute in its operation makes subject to the penalty prescribed any will in fact prove to be harsh can only be person who, owning or operating such cars, determined by experience, and a probability operates them without screens during the that it will do so is not sufficient to condemn designated months of the year. The declared the act in advance. purpose of our statute is to impose a penalty We are not called upon in this connection upon everyone who violates the provisions to decide whether or not, in the event a of section 1 of the act. And how may those workingman had practically completed his provisions be violated ? Manifestly in no oth
Manifestly in no oth- eight hours of work upon one of the desiger way than by the employé working more nated ,
employments, and some emergency than eight hours in a day in any of the should suddenly arise whereby life or propdesignated employments, or by the employer erty was placed in imminent danger, such causing him to do so. The information in employé might not prolong his labor beyond this case charges that the defendant com the allotted time without violating the spirit pany did unlawfully and willfully cause, of this statute. That question is not presuffer, and permit its servants to work for a sented in this case, and it is therefore not longer period than eight hours in a day, and, considered nor decided. if this be true, there was a clear violation 2. In prefacing his brief, counsel for ret of the statute by the defendant company; spondent insists that the amendment to the and it was no less a crime that its servants Constitution of Montana, prescribing the might also be equally guilty of the same of hours of labor in works or undertakings fense.
carried on or aided by any municipal, county. In this connection it is said that the stat or the state government, and on contracts let ute is exceedingly harsh and arbitrary, in by them, and in mills and smelters for the that it limits the number of hours of labor, treatment of ores and in underground mines. even though the employé is working by the approved by popular vote at the general hour and paid according to the number of election of 1904, was not properly submitted hours he works. But, when the purpose of to the people, and therefore was not properly the law is kept in mind, we think this criti- adopted. And, while we do not agree with cism cannot be made. The object of the law counsel in this contention, we do say that it is to conserve the health and promote the is entirely immaterial whether we have such happiness of the workingmen by such rea amendment in effect or not; for this quessonable regulations as will save them in the tion involves the construction of our statute one instance from overwork, and, in the oth with reference to the fourteenth amendment er, afford them ample time for rest, recrea to the Constitution of the United States, tion, and their physical and mental improve and, if our statute violates such fourteenth ment; and therefore it is quite immaterial amendment, it would not aid it if we had a whether the labor is performed by the day constitutional provision authorizing it, for or by the hour. Its object is to limit the in that event our constitutional provision number of hours of labor in a day so far as would have to give way to the paramount the state may do so. The same criticism authority of the Constitution of the United might be made of many other public stat States. utes. Every law is a restraint upon some But inquiry as to the constitutionality of one, and the question of its harshness is
this statute ought to be deemed foreclosed, only a relative one, depending largely upon for every feature of it has been before the the disposition of the person restrained, or Supreme Court of the United States and the character of the business in which he is passed upon by that tribunal. Treated from engaged.
a purely technical standpoint, the statute It is further urged that the statute is embraces two classes of employés: (1) Those harsı, in that no provision is made for cases engaged in works and undertakings carried of emergency where life or property is in on or aided by any municipal, county, or the peril; and it may be conceded that the act
state povernment, or on contracts let by would be more consonant with our ideas of them; and (2) those engaged in mills or a reasonable regulation if provisions had been smelters for the treatment of ores, or in unmade for such emergencies. But neither of derground mines. A case involving a statthese criticisins affects the validity of the ute applying to an employé of the first class
arose in Kansas, where they have a statute ers as are expressly granted to them, or such similar to our own so far as applicable to as may be necessarily implied from those that class of employés and in so far as it granted. What they lawfully do of a public raises the question now under consideration. character is done under the sanction of the One Atkin had a contract with Kansas City, state. They are in every essential sense only Kan., to provide the labor and materials auxiliaries of the state for the purposes of loand construct a brick pavement upon Quin
cal government. * * The improvement daro Boulevard, a public street of that city, of the boulevard in question was a work of and, as such contractor, required one of his which the state, if it had deemed it proper employés to work for 10 hours per day in to do, could have taken immediate charge prosecuting such work. Atkin was charged by its own agents; for it is one of the funcwith violating the Kansas eight-hour law, tions of government to provide public highwas convicted, the judgment affirmed by the ways for the convenience and comfort of the Supreme Court of Kansas (State v. Atkin, 64 people. Instead of undertaking that work Kan. 174, 67 Pac. 519, 97 Am. St. Rep. 313), directly, the state invested one of its govand by writ of error the case was taken to ernmental agencies with power to care for the Supreme Court of the United States, it. Whether done by the state directly or where every objection to the constitutionality by one of its instrumentalities the work was of the Kansas statute was urged which is of a public, not private, character." In re urged against our statute here. Counsel for O'Brien, 29 Mont. 530, 75 Pac. 196; Wilcox plaintiff in error in the Atkin Case argued v. Deer Lodge, 2 Mont. 574. The Supreme (1) that the statute of Kansas abridges the Court further said: "Equally without any privileges of a citizen of the United States, foundation upon which to rest is the propoind curtails his liberty with respect to his sition that the Kansas statute denied to the right to contract with the state or any of its defendant or to his employé the equal prosubdivisions; (2) that the construction of tection of the laws. The rule of conduct prethe sidewalk in controversy was purely a scribed by it applies alike to all who contract local affair, with which the state has no con to do work on behalf either of the state or cern; (3) that the statute denied to Atkin of its municipal subdivisions, and alike to all the equal protection of the laws; and (4) that employed to perform labor on such work.": it was conceded that the work was not dan With respect to the fourth contention the gerous to life, liinb, or health, and that daily court said: "Some stress is laid on the fact, labor on it for 10 hours would not be inju- stipulated by the parties for the purposes of rious to the laborer in any way, and therefore this case, that the work performed by dethe statute could not be upheld as a police fendant's employé is not dangerous to life, regulation. With respect to the first of these limb, or health, and that daily labor on it contentions the court said: "If it be contended for 10 hours would not be injurious to him in to be the right of every one to dispose of his any way. In the view we take of this case, labor upon such terms as he deems best such considerations are not controlling. als (indoubtedly it is—and that to make it a We rest our decision upon the broad ground criminal offense for a contractor for public that the work being of a public character, work to permit or require his employé to absolutely under the control of the state and perform labor upon that work in excess of its municipal agents acting by its authority, eight hours each day, is in derogation of it is for the state to prescribe the conditions the liberty both of employés and employer, under wbich it will permit work of that kind it is sufficient to answer that no employé is to be done. Its action touching such a matter entitled, of absolute right and as a part of is final so long as it does not by it regulahis liberty, to perform labor for the state; tions, infringe the personal right of others; and and no contractor for public work can excuse that has not been done." The court disposed a violation of his agreement with the state of the controversy by saying that the statute by doing that which the statute under which of Kansas is not inconsistent with the Conhe proceeds distinctly and lawfully forbids stitution of the United States, and that, "inhim to do."
deed, its constitutionality is beyond all quesCounsel for respondent in this case cite tion.” Atkin v. Kansas, 191 U. S. 207, 24 Cleveland v. Clements Bros. Construction Co.. Sup. Ct. 124, 48 L. Ed. 148. The decision in 67 Ohio St. 197, 65 N. E. 885, 59 L. R. A. the Atkin Case is conclusive upon this court 775, 93 Am. St. Rep. 670, and People v. Coler, and decisive of the question presented here. 166 N. Y. 1, 59 X. E. 716, 52 L. R. A. 814, 82 So far as the statute affects the other Am. St. Rep. 605, in support of the second class—that is, workingmen employed in mills contention above, which is also urged here. and smelters for the treatment of ores and But these cases and several others were cited in underground mines—its constitutionality by counsel for plaintiff in error in the Atkin is settled beyond controversy. Holden v. Case upon the same question, but without Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 avail, and respecting that second contention L. Ed. 780; Cantwell v. Missouri (U. S.) 26 the court said: "Such corporations are the Sup. Ct. 749, 50 L. Ed. 329. creatures, mere political subdivisions, of the Finally, counsel for respondent says: "If state for the purpose of exercising a part of the Legislature has the power to deprive its powers. They may exert only such pow cities and their contractors of the right to