CHAPTER XV

THE MAN WHO BROKE HIS WRITTEN

CONTRACT

WITHOUT REPAYING HIS EMPLOYER WHAT HE

HAD BORROWED

IN Bailey against Alabama,1 decided by the Supreme Court in January of 1911, Justice Hughes was called upon to declare whether vital principles of freedom, which under ordinary industrial conditions would be recognised as fundamental in the relationship of employer and employé, might be put aside by a State perplexed by the conditions which have arisen as to farm labour in many of the plantation districts of the South.

The State of Alabama had tried to make a little more effective the legislation it already had, along lines and for purposes by no means unusual, in either North or South. The question was whether this amendment went too far. The difficulty sought to be remedied was that employés of an irresponsible and more or less wandering type often go around and make written contracts with plantation owners, whereby they hire out for a year; they do this with no intention of remaining at work and with inten1219 U. S. Reports, page 219.

tion only of "getting something for nothing" from the employer; they obtain advances of moneys or supplies on account of their prospective services or as an initial payment under the contract; and then when the season of dire need for their labour in the fields comes on, they disappear or do nothing, leaving the employer possessed of a written contract but "out" both money and farm hands. There would be no use suing for the money, and no way of compelling the man to work as he had agreed. The State thought it was a reasonable thing to draft the most effective law that could be perfected, under the Constitution and the American way of doing things, to protect employing owners against this kind of fraud. So the State legislators kept experimenting on their form of statute, making it a little more drastic from time to time, as the need became greater and new provisions suggested themselves. Now and then they encountered difficulties with their own State Supreme Court,1 but matters worked along until finally they passed an amendment under which the mere failure to perform a contract to work for a specified time, coupled with a failure to pay a debt for advances which were to be liquidated during the contract period, would, if shown in court, be sufficient evidence to warrant the conviction of the defaulting em

1

Toney vs. The State (141 Alabama Reports, page 120); Ex parte Riley (94 Alabama Reports, page 82); Bailey vs. The State (158 Alabama Reports, page 25).

ployé of a criminal offence, for which, in the case of Bailey, punishment was inflicted in the form of sentence for one hundred and sixteen days at hard labour, in lieu of his prompt payment of a fine amounting to twice the sum of fifteen dollars, which he owed his former employer, together with the costs.

There was no question as to the power of any State to provide that any person who, with intent to injure or defraud his employer, entered into a written contract to work for him and thereby obtained from his employer money or other personal property, and then with like intent and without just cause and without refunding the money or paying for the property refused to perform the contract, should be punished as if he had stolen it. Such a rule of law obtains in many jurisdictions, and has not been challenged by the Federal Court. Alabama had such a statute, enacted in 1896. Under it, when it appeared from all the circumstances that the defaulting employé entered into the contract with the intent not to perform it but to use it as means of getting money or otherwise defrauding the employer, failure to repay and refusal to perform subjected him to criminal liability, if his non-performance was without just cause and with like intent to injure and defraud the man for whom he had promised to work. "The difficulty in proving the intent, made patent by the decision" of the Alabama Supreme Court as to the essential elements of this statu

tory offence, "suggested the amendment of 1903," which, as amplified in 1907, was before the United States Supreme Court in the Bailey

case.

This amendment made refusal or failure to perform the service, or to refund the money or pay for the property, if the employé quit work without just cause before the contract time was up, prima facie evidence of the intent to injure or defraud the employer. Under a rule of evidence enforced in Alabama as to oral testimony rebutting or contradicting a statutory presumption, an accused person is not permitted to testify "as to his uncommunicated motives, purpose or intention," so that the practical effect of the statute was to empower the jury to convict and the appellate courts to sustain conviction, if it appeared that the accused had without just cause broken a written contract of employment and had failed to repay money which he had been expected to repay out of the proceeds of the employment.

Of course, in New York City, for example, if the employer who made a written contract for a year with a salesman and advanced him money on account of his anticipated earnings, could hale the salesman into the criminal courts when the salesman unwarrantedly left the employment without repaying the moneys advanced, and then could obtain the conviction of the salesman and his sentence to hard labour merely upon proof of the broken contract and

the moneys unrepaid, legislature and courts alike would make short shrift of any statute which authorised such a proceeding, especially if conviction meant so large a fine as virtually to compel the man to work the rest of the year or languish in jail. The matter presents a serious question at all only when urged in the light of conditions in plantation districts of Southern States. As incumbent of a judicial office, Justice Hughes ruled promptly that questions of a racial or sectional character could not be permitted to enter into the judicial disposition of the case.

"We at once dismiss from consideration," said he, "the fact that the plaintiff in error is a black man. While the action of a State through its officers charged with the administration of a law, fair in appearance, may be of such a character as to constitute a denial of the equal protection of laws, such a conclusion is here neither required nor justified. The statute, on its face, makes no racial discrimination, and the record fails to show its existence in fact. No question of a sectional character is presented, and we may view the legislation in the same manner as if it had been enacted in New York or in Idaho. Opportunities for coercion and oppression, in varying circumstances, exist in all parts of the Union, and the citizens of all the States are interested in the maintenance of the constitutional guaranties, the consideration of which is here involved."