<CENTER>
<H2>U.S. Supreme Court </H2>
<H3>CONNALLY v. GENERAL CONST. CO., 269 U.S. 385 (1926) </H3>
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.
</CENTER>
Messrs. George F. Short, of Oklahoma City, Okl., and J. Berry King, of
Muskogee, Okl., for appellants.[ Connally v. General Const. Co. <A href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=269&invol=385">269
U.S. 385 </A>(1926) ]
<FONT color=#005500 size=-1><A name=388>[269 U.S. 385, 388] </A>Â*
</FONT>Mr. J. D. Ly****, of Oklahoma City, Okl., for appellee.
Mr. Justice SUTHERLAND delivered the opinion of the Court.
This is a suit to enjoin certain state and county officers of Oklahoma from
enforcing the provisions of section 7255 and section 7257, Compiled Oklahoma
Statutes 1921, challenged as unconstitutional. Section 7255 creates an
eight-hour day for all persons employed by or on behalf of the state, etc., and
provides:
<UL>'That not less than the current rate of per diem wages in the locality
where the work is performed shall be paid to laborers, workmen, mechanics,
prison guards, janitors in public institutions, or other persons so employed
by or on behalf of the state, ... and laborers, workmen, mechanics, or other
persons employed by contractors or subcontractors in the execution of any
contract or contracts with the state, ... shall be deemed to be employed by or
on behalf of the state. ...'[/list]
For any violation of the section, a penalty is imposed by section 7257 of a
fine of not less than $50 nor more than $500, or imprisonment for not less than
three nor more than six months. Each day that the violation continues is
declared to be a separate offense. <FONT color=#005500 size=-1><A name=389>[269
U.S. 385, 389] </A>Â* </FONT>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.
In determining the rate of wages to be paid by the company, the commissioner
claimed to be acting under <FONT color=#005500 size=-1><A name=390>[269 U.S.
385, 390] </A>Â* </FONT>authority of a statute of Oklahoma, which imposes
upon him the duty of carrying into effect all laws in relation to labor. In the
territory surrounding the bridges being constructed by plaintiff, there is a
variety of work performed by laborers, etc., the value of whose services depends
upon the class and kind of labor performed and the efficiency of the workmen.
Neither the wages paid nor the work performed are uniform. Wages have varied
since plaintiff entered into its contracts for constructing the bridges and
employing its men, and it is impossible to determine under the circumstances
whether the sums paid by the plaintiff or the amount designated by the
commissioner or either of them constitute the current per diem wage in the
locality. Further averments are to the effect that the commissioner has
threatened the company, and its officers, agents, and representatives, with
criminal prosecutions under the foregoing statutory provisions, and, unless
restrained, the county attorneys for various counties named will institute such
prosecutions; and that, under section 7257, providing that each day's failure to
pay current wages shall constitute a separate offense, maximum penalties may be
inflicted aggregating many thousands of dollars in fines and many years of
imprisonment.
The constitutional grounds of attack, among others, are that the statutory
provisions, if enforced, will deprive plaintiff, its officers, agents and
representatives, of their liberty and property without due process of law, in
violation of the Fourteenth Amendment to the federal Constitution; that they
contain no ascertainable standard of guilt; that it cannot be determined with
any degree of certainty what sum constitutes a current wage in any locality; and
that the term 'locality' itself is fatally vague and uncertain. The bill is a
long one, and, without further review, it is enough to say that, if the
constitutional attack upon the statute be sustained, the averments justify the
equitable relief prayed. <FONT color=#005500 size=-1><A name=391>[269 U.S. 385,
391] </A>Â* </FONT>Upon the bill and a motion to dismiss it, in the nature
of a demurrer attacking its sufficiency, an application for an interlocutory
injunction was heard by a court of three judges, under section 266, Judicial
Code ( Comp. St. 1243), and granted; the allegations of the bill being taken as
true. General Const. Co. v. Connally (D. C.) 3 F. (2d) 666.
<P style="color: red; font-weight: bold;">That the terms of a penal statute creating a new offense must be sufficiently
explicit to inform those who are subject to it what conduct on their part will
render them liable to its penalties is a well- recognized requirement, consonant
alike with ordinary notions of fair play and the settled rules of law; and a
statute which either forbids or requires the doing of an act in terms so vague
that men of common intelligence must necessarily guess at its meaning and differ
as to its application violates the first essential of due process of law.
International Harvester Co. v. Kentucky, <A href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=234&invol=216#221">234
U.S. 216, 221 </A>, 34 S. Ct. 853; Collins v. Kentucky, <A href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=234&invol=634#638">234
U.S. 634, 638 </A>, 34 S. Ct. 924 [/b]
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The question whether given legislative enactments have been thus wanting in
certainty has frequently been before this court. In some of the cases the
statutes involved were upheld; in others, declared invalid. The precise point of
differentiation in some instances is not easy of statement; but it will be
enough for present purposes to say generally that the decisions of the court,
upholding statutes as sufficiently certain, rested upon the conclusion that they
employed words or phrases having a technical or other special meaning, well
enough known to enable those within their reach to correctly apply them, Hygrade
Provision Co. v. Sherman, <A href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=266&invol=497#502">266
U.S. 497, 502 </A>, 45 S. Ct. 141; Omaechevarria v. Idaho, <A href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=246&invol=343#348">246
U.S. 343, 348 </A>, 38 S. Ct. 323, or a well-settled common-law meaning,
notwithstanding an element of degree in the definition as to which estimates
might differ, Nash v. United States, <A href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=229&invol=373#376">229
U.S. 373, 376 </A>, 33 S. Ct. 780; International Harvester Co. v. Kentucky,
supra, at page 223 (34 S. Ct. 853), or, as broadly stated by Mr. Chief Justice
Write in United States v. Cohen Grocery Co., <A href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=255&invol=81#92">255
U.S. 81, 92 </A>, 41 S. Ct. 298, 301 (65 L. Ed. 516, 14 A. L. R. 1045), 'that,
for reasons found to <FONT color=#005500 size=-1><A name=392>[269 U.S. 385, 392]
</A>Â* </FONT>result either from the text of the statutes 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), <A href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=212&invol=86#108">212
U.S. 86, 108 </A>, 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):
<UL>'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.[/list]
<FONT color=#005500 size=-1><A name=393>[269 U.S. 385, 393] </A>Â*
</FONT>... 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 <FONT color=#005500 size=-1><A name=394>[269 U.S. 385, 394] </A>Â* </FONT>'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
construction that enable a court to look through awkward or clumsy expression,
or language wanting in precision, to the intent of the Legislature. For the vice
of the statute here lies in the impossibility of ascertaining, by any reasonable
test, that the Legislature meant one thing rather than another, and in the
futility of an attempt to apply a requirement, which assumes the existence of a
rate of wages single in amount, to a rate in fact composed of a multitude of
gradations. To construe the phrase 'current rate of wages' as meaning either the
lowest rate or the highest rate, or any intermediate rate, or, if it were
possible to determine the various factors to be considered, an average of all
rates, would be as likely to defeat the purpose of the Legislature as to promote
it. See State v. Partlow, 91 N. C. 550, 553, 49 Am. Rep. 652; Commonwealth v.
Bank of Pennsylvania, 3 Watts & S. (Pa.) 173, 177.
In the second place, additional obscurity is imparted to the statute by the
use of the qualifying word 'locality.' Who can say, with any degree of accuracy,
what areas constitute the locality where a given piece of work is being done?
Two men, moving in any direction from the place of operations, would not be at
all likely to agree upon the point where they had passed the boundary which
separated the locality of that work from the next locality. It is said that this
question is settled for us by the decision of the state Supreme Court on
rehearing in State v. Tibbetts, 205 P. 776, 779. But all the court did there was
to define the word 'locality' as meaning 'place,' <FONT color=#005500 size=-1><A name=395>[269 U.S. 385, 395] </A>Â* </FONT>'near the place,' 'vicinity,' or
'neighborhood.' Accepting this as correct, as of course we do, the result is not
to remove the obscurity, but rather to offer a choice of uncertainties. The word
'neighborhood' is quite as susceptible of variation as the word 'locality.' Both
terms are elastic and, dependent upon circumstances, may be equally satisfied by
areas measured by rods or by miles. See Schmidt v. Kansas City Distilling Co.,
90 Mo. 284, 296, 1 S. W. 865, 2 S. W. 417, 59 Am. Rep. 16; Woods v. Cochrane and
Smith, 38 Iowa, 484, 485; State ex rel. Christie v. Meek, 26 Wash. 405, 407-408,
67 P. 76; Millville Imp. Co. v. Pitman, etc., Gas Co., 75 N. J. Law, 410, 412,
67 A. 1005; Thomas v. Marshfield, 10 Pick. (Mass.) 364, 367. The case last cited
held that a grant of common to the inhabitants of a certain neighborhood was
void because the term 'neighborhood' was not sufficiently certain to identify
the grantees. In other connections or under other conditions the term 'locality'
might be definite enough, but not so in a statute such as that under review
imposing criminal penalties. Certainly, the expression 'near the place' leaves
much to be desired in the way of a delimitation of boundaries; for it at once
provokes the inquiry, 'How near?' And this element of uncertainty cannot here be
put aside as of no consequence, for, as the rate of wages may vary-as in the
present case it is alleged it does vary- among different employers and according
to the relative efficiency of the workmen, so it may vary in different sections.
The result is that the application of the law depends, not upon a word of fixed
meaning in itself, or one made definite by statutory or judicial definition, or
by the context or other legitimate aid to its construction, but upon the
probably varying impressions of juries as to whether given areas are or are not
to be included within particular localities. The constitutional guaranty of due
process cannot be allowed to rest upon a support so equivocal.
Interlocutory decree affirmed. <FONT color=#005500 size=-1><A name=396>[269
U.S. 385, 396] </A>Â* </FONT>Mr. Justice HOLMES and Mr. Justice BRANDEIS
concur in the result, on the ground that the plaintiff was not violating the
statute by any criterion available in the vicinity of Cleveland.
<UL>[/list]
<H3>Footnotes </H3>
[
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.
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