572 MO. PAC. R. CO. V. AT/LT. [140 MISSOURI PACIFIC RAILROAD COMPANY V. AULT. Opinion delivered November 17, 1919. I.. MASTER AND SERVANT — AGREEMENT AS TO WORK ON SUNDAY — BREACH OF EMPLOYMENT.—A contract of employment between appellant and appellee required the latter to work on Sundays. Held, where the parties agreed that appellee might substitute another in his place on Sunday, appellant can not contend that ap-pellee's failure to work in person on Sundays operated as a breach of the contract. 2. MASTER AND SERVANT—DISCHARGE OF SERVANT.—Appellee was employed by appellant, as freight trucker at twenty-five cents an hour. Appellant then refused to continue that employment and offered appellee work as porter or baggageman at a salary of $45 a month. Held, appellant's action was tantamount to a discharge from and a refusal to further employ appellee in his original position within section 1, act 210 of 1905. 3. RAILROADS—PROMISE TO PAY DISCHARGED EMPLovEE.—When the foreman of a discharged railway employee, told the latter that he would be paid his money at a certain place, where a regular agent was kept, it is equivalent to a request by the employee, to be paid at that place, and is sufficient to entitle him to recover the statutory penalty for failure to send the money.
ARK.] MO. PAC. RD. CO. v. AULT. 573 4. RAILROADS—GOVERNMENT CONTROL—RIGHT TO SUE AND BE SUED.— The meaning of the act of Congress of March 21, 1918, authorizing the taking over of certain railroads by the Government, is that so far as suing and being sued is concerned, railroads occupied the same status after being taken over by the Government as before. 5. SAME—SAME—DIRECTOR GENERAL.—The Director General of Railroads under Federal control was not in the position of a receiver of the said road. This attitude was that of an agent for the Government, taking over the railroads as a necessity of war, under congressional and presidential authority. 6. SAME — SAME — SAME — ENFORCEMENT OF JUDGMENT AGAINST THE PROPERTY OF THE RAILWAY COMPANY.—A judgment may be enforced against a railroad company, while in the hands of the Director General under Federal control. 7. SAME— SAME— SAME—SAME—CONSTITUTIONALITY OF FEDERAL ACT. —The act of Congress of March 21, 1918, taking over the railroads held constitutional. Appeal from Hot Spring Circuit Court ; J. C. Ross, Judge ; affirmed. E. B. Kinsworthy and W. R. Donham, for appellant. 1. Appellee was not discharged; he quit of his own accord. A reduction of wages under the proof was not a discharge. 208 S. W. 790. 2. Appellee made no demand as required by statute that his money or a valid check be sent to a station where a regular agent was kept and was not entitled to any penalty. 128 Ark. 312; 87 Ark. 132; 88 Id. 277. The cause of action should have been dismissed as to the railroad company. 254 Fed. 880. D. D. Glover and Jabez M. Smith, for appellee. Appellee was discharged without cause and was entitled to his pay and the penalty awarded. 131 Ark. 379. The cou'rt correctly declared the law, and the evidence sustains the judgment, and the judgment should be affirmed for the wages and penalty, and there is no error. HUMPHREYS, J. Appellee brought suit against the Missouri Pacific Railroad Company, befo.re D. IVI.
574 Mo. PAC. V.b. Co. V. AULT. [140 NobId; "a: . liStibe . 6f , :flie:pdadb" :"ln'Penter township, Hot 4:tkaii$4,..V . 4 . Co , 4' ' , the sum of $50 as w4gq§,d a pena4ty pres , crihed.4 4qt 210 of the Acts of,,the Legislature of 1905, -amending section 6649 of Kirby's Digest. The act, insofar as it relates to this case, iiii follows: '`Whenoter aily-Taitroad. tiompany or cor-riol'ati , on 'Pr any re_ceivbr operating"a0 i'ailroad engaged bUsiness' r Of 'Of3..r ia!, , tfn . "g`01-e6:iistr-;iCting any rail- roa or la' oa is ja. h arge i w • i th or with-914 cause ) ,or refu,sp , q 44 . .,tjny.r employ,4ny seniant or employees,thereof, -the =paid , wages:of , anpsuch servant or employee th earned at the. eonttact . rate, .without abatement or deduction, shalltic and bedohieu dne"ffild payable owthe day of steh'-di'S'elfail l ,-d'Or . .kertisal. fd loVr employ, anl y tiii Seffaid di ''emi31ijy4'.ni# , :i'rgifest. : Of !his foreman or the keeper of his time to haVntite money'due him, or 4 valid check, therefor, sent tp ,an7 sta#9 where a Degular 'agent 'i1S ; kept, r anelV. tte In i oneY i •Afmts i rid, or a valid check therefor, does not reach such Station within se(vreli days' ,fromthedath :so4equestedA then as a ritgAtyi fpr .suqh,Aopp,a3fmemtithm,vagpso151iph servant 9r0 2 ,1 0P yee shalkcoptinne,fx.qm the date, of, the;diseharge or refusal to fUrther employ at th:o 'arrpe xate -until paid." , Default judgm,ent was rendered infavoT. of appellee 11 , t)r ie, wag i strate'i s i convt,for , $.59, , v4 $0 pbr dy as a tistialty , for nenpayinent_' Of;the . yage's fr Ioni;Thaiy ,9, 1918, until *the Payment pf Said..sum.', 4n. appeal was taken from that judknie , lit to th-- . e4;Ctiit:cOiir , t in ' said 'County, 20th daYI . 8Y ,M14r3.4;'19h, The Iiii4sOnri Pacific Railroad Couthany) ffied'an the indebtedness or,liability , fo;r a.. penalty; the .disqharge or re-fRal t 9 qcmtim i e. 4111?,9)40 1 ";,its , eu iploymen t, any request or;deniand by appellee on his foreman pr time- keeper to §P,Iikthe amouut ; claimed, to be due him as 'wages, or a valid .. cheek . tberefOr even.daY,s, to: the . agent at Malvern,. or :that . ; appellee; applied : . to ,said ,agQnt, after sei ren days, for his wagk, or a valid check therefor. • On the 29th day of Janualyfollownig, appellee filed a MOtiOn tO' substitute in his Plac ' e, as defendant, \\ Tallier D,
Mo. PAC. . CO, V AuTir .575 •,, it .(' . • Hines, Director general of Vailro.ads,.. Oyer the objec-. tia ot '6,Pp'ellant, ' thg.'65i-itt • reasdd 'to make ,the'iiii'sii! fUtion; 'hid' Mad'e tp.k'D1iit i dOir. d6nag f.4 'paify defoii.difiV The eafis4 , 0,1en15rOCedded.'-U r trial WO wa§ subM . i. t ll!■Aj f . Od t a jurY ui..)'6Cri the PleAdg g. , 'C'vid6nCe.'hild iiistrubti rin thld:couit.-h i'lifY,'Yt'urii . O'ff rierfroll.OWing Verdtett the jurY ' f'ind foi l ; , t , h . . e - ' V .. f attiVi iii 61E' '34111 of $50' , S' AIR jabot i a).sci . $2.o0; per r , . c d . 4y ., a-s pqnqty from;: the --z3th d 'ay ot°:)-ifi.S'7,,191, un41 t ' her eSeut'd'ate. J, M. Cald'Nfv'eff,
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576 Mo. PAO. RD. CO . V. ATILT. [140 information that Williams had placed him on the roll as porter, or baggageman, at a salary of $45 a month, and intended to pay him only $1.50 per day for the entire time he had worked; that he went to see Williams, who turned to the record, under the heading "porter," and told appellee he could not allow him more than $45 a month, and that it was up to him to accept or refuse that money; that appellee contended he had not been working as porter and could not support his family on that amount ; that Williams responded he could not allow more, whereupon appellee informed him that he might have the job as soon as he paid him off ; that the agent sent a man to take his place, but appellee refused to let the new man go to work until he received his pay. The appellee then consulted an old employee, who advised him that he could not keep the new man from going to work ; that on the next day, Sunday, his substitute was displaced by the new man. We think the refusal of appellants to allow appellee to work longer in the capacity of freight trucker, at 25 cents an hour, and their offer to retain him as porter or baggageman, at a salary of $45 per month, was tantamount to a discharge from and a refusal to further employ appellee in his original position, within the meaning of section 1, act 210, of the Acts of the Legislature of 1905. Under this construction of said act, as applied to the facts in this case, it can not be said that appellee voluntarily quit the service of appellants. (3) It is next insisted that appellee was not entitled to a penalty because the undisputed evidence showed that he did not bring himself within that provision of said act which required the employee, when discharged or when refused employment, to request his foreman or keeper of his time to send the money due him, or a valid check therefor, to a station agent, at a station where a regular agent is kept. Appellee testified that, after he made up his mind not to prevent the new man from taking his place, he demanded the wages due him from E. B. Wil-liams, his immediate employer, and the man who kept
ARK.] MO. PAC. RD. CO . v. AULT. 577 his time ; that Williams responded that the money would be here in seven days. The undisputed evidence also showed that this conversation occurred in the Malvern depot, where appellee had been working and where E. B. Williams was employed as the regular station agent. This court held, in the case of Biggs v. St. Louis, I. M. & S. R. Co., 91 Ark. 122 (quoting the sixth syllabus) that : "Where, at the time a servant was discharged by a railroad company, his foreman notified him that his money would be sent to a station named where a regular agent was kept, to which the servant acquiesced, this was equivalent to a request by the servant to have the money due him sent to the station, and sufficient to entitle him to recover the statutory penalty for failure to send the money." We think the evidence in this case brings it clearly within the rule laid down in Biggs v. St. Louis, I. M. & S. R. Co., supra. Lastly, appellant insists that it was erroneous to render any judgment against the Missouri Pacific Railroad Company, for the reason that the undisputed evidence showed that at the time of the employment and discharge of appellee the railroad was being operated by Walker D. Hines, Director General of Railroads in the United States of America, and not by said railroad company. Under authority granted by Congress on August 29, 1916, the President issued a proclamation on December 26, 1917, for the Director General to take possession of certain railroads in the United States, including the Mis-souri Pacific Railroad Company. On March 21, 1918, thereafter, Congress passed a statute to the effect that, " Carriers while under Federal control shall be subject to all laws and liabilities as common carriers, whether arising under State or Federal laws or at common law, except insofar as may be inconsistent with the provisions of this act or any other act applicable to such Federal control or with any order of the President. Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by
578 Mo. PAC. RD. CO . v. ATILT. [140 law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the Federal Government." (4-5) If the word "carriers" used in this act had reference to the Director General, who was operating said railroad, then it was improper to render a judgment against the Missouri Pacific Railroad Company. We are unable to find anything in the language or context used that indicates that the word "carriers" refers to the Director General. On the contrary, the plain meaning is that, so far as suing and being sued is concerned, the railroad occupied exactly the same status after being taken over by the Government as before. The case of Rutherford v. Union Pacific Rd. Co., 254 Fed. 880, cited by appellant in support of its position that the statute in question had reference to the Director General, and not to the original corporation, argued that the Director General occupied the same position with reference to the railroad as receivers do. We do not think the position occupied by the Director General is analogous to that of a receiver. The attitude of a receiver is that of a trustee for the benefit of creditors. The attitude of the Director General is that of an agent of the Government taking over the railroads as a necessity of war, under congressional and presidential authority. A receivership implies insolvency ; the operation of the railroad under a director general does not carry such an implication. We think the later case of Jensen v. Lehigh Valley Rd., 255 Fed. 795, is the better reasoned case. It was said by Judge Hand in the latter case : "It appears to . me that Congress pretty clearly meant, by the term ' carriers,' the corporations themselves, and that the right to sue them must remain certainly till it is changed by some valid provision." (6-7) It may be contended that the statute in question is unconstitutional, because, if the claim is reduced to a judgment and enforced against the property of the corporation, it would amount to a taking of private property
ARK.] 579 without due process of law from the corporation to pay a liability incurred by the act of the Federal authorities operating the road. We do not understand that such would be the effect of the act. Immunity from loss, as well as assurance of a reasonable return upon the investment, was guaranteed the railroad corporations by the government. Act March 21, 1918, e. 25, 40 Stat. 451. Under such a guarantee the enforcement of judgments against the property of the railroad corporations during the control by Federal authorities could not have the effect of confiscating their property. Immunity from loss and assurance of gain are a complete answer to any contention that the enforcement of such judgments would be the taking of private property without the process of law, or the taking of private property for public purposes without just compensation. We think the act constitutional. No error appearing in the record, the judgment is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.