they were not receiving deliveries from the driver-salesmen even though prior to the bankruptcy proceedings, a retailer would call Rubin's office if it had not received any merchandise. One of the respondents told an employee of the debtor that arrangements had been made with Reber to supply the drivers, to receive orders directly, and to pay Reber directly without a middleman.
The referee also received the testimony of two former employees of Rubin who went to work for Reber Corporation in late February 1965. They stated that the Reber Corporation had been servicing the driver-salesmen at least since the time they began to work for their new employer.
Although the burden of the petitioner seeking a citation for civil contempt is a heavy one, see Schauffler v. Local 1291, International Longshoremen's Ass'n, 292 F.2d 182, 189-190 (3d Cir. 1961), the uncontroverted evidence produced by the receivers indicates to us that the respondent driver-salesmen have interfered with the property of the debtor in violation of the court's Order of February 23, 1965. See Ex Parte Tyler, 149 U.S. 164, 37 L. Ed. 689, 13 S. Ct. 785 (1893); Converse v. Highway Construction Co. of Ohio, 107 F.2d 127 (6th Cir. 1939); In re Quick Charge, Inc., 69 F. Supp. 961 (W.D. Okla. 1947). They have continued to receive merchandise directly from the supplier, and none of Rubin's customers has ever called to complain that they were not being serviced. The conclusion is inescapable that these driver-salesmen were continuing to deliver pastry goods along the established routes of the debtor to the detriment of the latter's property rights.
We feel, however, that the evidence against the other five respondents, Edward Wasson, Irving Saunders, Warren Leonard, John Reber and John Reber Baking Company is not sufficient to warrant a contempt citation. John Reber's name does not appear at all in the testimony taken before the referee. While John Reber Baking Corporation, its general manager and its employees Irving Saunders and Edward Wasson did provide the driver-salesmen with pastry and baked goods, this supplier had no contract requiring it to sell to Rubin and was free to sell to anyone who would purchase from it and on the conditions it believed to be in its best interest, considering its precarious financial condition. We may be suspicious of its conduct and that of its general manager and employees, but suspicions are not enough to hold someone in contempt of court. See Schauffler v. Local 1291, International Longshoremen's Ass'n supra.
The case will again be remanded to the referee for a hearing on the question of civil damages caused by the respondent driver-salesmen who have been held in contempt.
And now, it is hereby Ordered that the respondents, Philip Abrams, Jules Goldstein, Joseph Bibbo, Bernard Kaufman, and Jerry Glazer be and the same are held in contempt of the Order of Court dated February 23, 1965.
It is further Ordered that the above named respondents be and the same are enjoined and restrained from operating on the individual routes that they had serviced while driver-salesmen of the debtor; and it is further Ordered that each of the above named respondents be and the same is enjoined and restrained from operating on the route or routes serviced by any of the other respondents or other driver-salesmen while they were driver-salesmen of the debtor.
It is further Ordered that the petition for contempt against the John Reber Baking Corporation, John Reber, Warren Leonard, Irving Saunders and Edward Wasson be and the same is dismissed.
It is further Ordered that the case be remanded to the referee in bankruptcy for a hearing on the question of civil damages suffered by the debtor as a result of the contemptuous conduct of the respondents named in the first paragraph of this Order.
"The general assembly, as have those of many other states, has seen fit to make a special class of women and minor employees and to enact legislation in their behalf. The provisions of the statute apply to all workers so classified. That the general assembly was justified in prescribing special working conditions and protective provisions for this class of workers seems beyond question. We believe, therefore, for the reasons given, that the attack upon the constitutionality of the provisions of the act allowing an attorney's fee in the case is without foundation."
In spite of this specific decision on the point, the employer contends the statute violates the public policy of this state. This is a rather unusual argument in view of the fact that the legislature, when it acts upon a particular subject matter, establishes such policy. It is true the courts may, in the absence of legislative decree, adopt and apply public policy principles. Such was done in Cloud v. Hug, Ky., 281 SW 2d 911, where no statute was involved.
It is beyond the province of a court to vitiate an act of the legislature on the ground that the public policy therein promulgated is contrary to what the court considers to be in the public interest. It is the prerogative of the legislature to declare what acts constitute a violation of public policy and the consequences of such violation. Re Peterson, 230 Minn. 478, 42 N.W. 2d 59, 18 A.L.R. 2d 910. The propriety, wisdom and expediency of statutory enactments are exclusively legislative matters. Hallahan v. Mittlebeeler, Ky., 373 SW 2d 726, 97 A.L.R. 2d 215.As so aptly stated in Collison v. State, Del., 39 Del. 460, 2 A. 2d 97, 119 A.L.R. 1422, 1437:
"* * * it is the province of the legislature and not of the courts to pass upon matters of policy. The legislative hand is free except as the constitution restrains; and courts are bound by a most solemn sense of responsibility to sustain the legislative will in the appropriate field of its exercise, even though in the opinion of the judges as individuals the legislature had acted in an unwise manner."
We cannot declare KRS 337.360 void on the ground asserted.
We could so act only if it violated a constitutional provision, as we found in Burns v. Shepherd, Ky., 264 SW 2d 685.The statute involved required the employer to pay one-half of the claimant's attorney's fee when an award was made by the Workmen's Compensation Board. It was held to violate the due process clause of the federal Constitution and section 2 of the Kentucky Constitution (relating to the exercise of arbitrary power).The basis for the decision appears in these words (page 687 SW 2d):
"Throughout all of the cases is the fundamental principle that the imposition of the fees is justified solely on the ground that the person responsible for their payment has brought about the situation through which the fees are incurred by the willful violation of some statutory or contractual obligation. In the statute under consideration, no distinction is made between the just and the unjust.It applies with equal force to the employer who, without reasonable basis for his position, is trying to escape his statutory responsibility, and the employer who is neither seeking to avoid or delay payment of a valid claim asserted by the employee."
The broad statement in that opinion that the sole justification for the imposition of fees is the willful violation of a statutory obligation is inaccurate. The cases recognize other grounds. As shown in the language above quoted from the Teague case (297 Ky. 475, 180 SW 2d 387), such a penalty (if properly it may be so characterized) can be justified as a protective measure for a certain class of workers. In Chicago & N.W.R. Co. v. Nye Schneider Fowler Co., 260 U.S. 35, 43 S. Ct. 55, 67 L. Ed. 115, the basis for upholding a statute allowing an attorney's fee to those asserting property damage claims against railroad companies was that such a law stimulated the seasonable consideration and prompt payment of such claims.
No one seems to have questioned the authority of the legislature to require the husband to pay the wife's costs, which includes attorneys' fees, under certain circumstances. KRS 453.120. Similarly, an attorney's fee is allowed to the successful party under KRS 453.060. The obligation to pay these attorneys' fees is certainly not a penalty for willful violation of a statutory or contractual obligation.
There are other social purposes served by allowing the successful claimant to recover an attorney's fee in this type of case. It is common knowledge that the workers in this class do not occupy a high position on the wage scale. Their claims, if any, would ordinarily involve relatively small sums. The cost of litigation might well exceed the amount of the claim. On the other hand, there could be no dispute about the applicable minimum wage rate. The necessity for uniform compliance may well justify this stimulus, whether wise or unwise. We cannot say, as was said in the Burns case, that KRS 337.360 is so lacking in justification as to constitute an arbitrary exercise of legislative power or to deprive the employer of his property without due process of law.
Considering the nature of the claims and the class of workers involved, it is possible to distinguish between the Workmen's Compensation Law and the statute involved as it relates to women and minors affected by the Minimum Wage Regulation, and on this ground we could declare the Burns case in applicable. Since, however, the public policy exemplified under both laws is basically the same, we now have some question concerning the soundness of the Burns decision. In any event, we are constrained to reaffirm the correctness of the Teague decision which held this statute constitutional.
The employer contends that since the fixing of the attorney's fee is left to the discretion of the trial judge, he could properly award no fee because the amounts recovered by the employees were small. We cannot accept such an agrument. If it had any semblance of validity in view of recoveries allowed in the appealed judgment, it cannot now prevail because our present decision will result in the recovery of substantially increased amounts. The appellants are entitled to an allowance of a reasonable attorney's fee.
The judgment is reversed, with directions to enter a new judgment consistent with this opinion.
Judge MONTGOMERY dissenting.
Judge STEWART not sitting.
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