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violation. There is no room for construction. Where any number have combined together, in violation of law, each is liable for the full amount of the penalty which the court may see fit to impose, from the minimum to the maximum fixed by the statute; each stands as if he were the only guilty one; and each day the business is carried on is a separate breach of the statute.

Section 3096, Code 1906, provides that "statutes of limitation in civil cases shall not run against the State, or any subdivision or municipal corporation thereof,” etc. This is a “civil case," as herein held, and therefore there is no statute of limitation.

Whether the penalties in question are confiscatory, and therefore violative of the equal protection and due process clauses of the fourteenth amendment of the Constitution of the United States can not be considered here on bill and demurrer where there is no allegation as to the property owned by the appellants. The statute (sec. 5004) is valid on its face. Its enforcement might amount to confiscation in one case and not in another. This question must await the case on proof.

EMPLOYERS' ADVANCES-CONTRACTS WITH INTENT TO DEFRAUDPEONAGE-CONSTITUTIONALITY OF STATUTE-Bailey v. Alabama, Supreme Court of the United States, 31 Supreme Court Reporter, page 145.Alonzo Bailey was a laborer employed by the Riverside Company, a corporation, under a written contract for one year's service at the rate of $12 per month. Of the prospective earnings the sum of $15 was advanced and receipt thereof acknowledged, the subsequent monthly payments to be at the rate of $10.75 per month. After working for something more than one month Bailey left service and declined to continue work under the contract. A statute of the State of Alabama provides that“any person, who with intent to injure or defraud his employer, enters into a contract in writing for the performance of any act or service, and thereby obtains money or other personal property from such employer, and with like intent without just cause, without refunding such money, or paying for such property, refuses or fails to perform such act or service,” shall be punished by a fine in double damages, one-half to the county and one-half to the person injured. (Section 4730, Code of 1896, as amended in 1903 and 1907; sec. 6845, Code of 1907.) A rule of evidence enforced by the courts of Alabama is to the effect that no accused person shall be allowed, for the purpose of rebutting statutory presumption, to testify "as to his uncommunicated motives, purpose, or intentions;" while the statute above referred to declares that the refusal or failure to render the service or refund the advances without just cause shall be prima facie evidence of the intent to injure or defraud. Bailey was found guilty of a violation of this statute in the Montgomery city court and in the supreme court of the State. (See Bulletin No. 83, p. 147.) On appeal to the Supreme Court of the United States, however, the statute in question was declared unconstitutional as violating the provisions of the Constitution of the United States as to involuntary servitude and of the Federal law prohibiting peonage (Rev. Stat., secs. 1990, 5526), Judge Holmes, with whom Judge Lurton concurred, dissenting.

The penalty had taken the form of a fine as provided by the law, and in default of the payment thereof Bailey was sentenced to hard labor for 20 days in lieu of the fine and 116 days on account of the costs. The opinion of the court was delivered by Judge Hughes and is in part as follows:

Prior to the amendment of the year 1903, enlarged in 1907, the statute did not make the mere breach of the contract, under which the employee had obtained from his employer money which was not refunded or property which was not paid for, a crime. The essential ingredient of the offense was the intent of the accused to injure or defraud. To justify conviction, it was necessary that this intent should be established by competent evidence, aided only by such inferences as might logically be derived from the facts proved, and should not be the subject of mere surmise or arbitrary assumption.

This was the construction which the supreme court of Alabama placed upon the statute, as it then stood, in Ex parte Riley, 94 Ala. 82, 10 So. 528.

We pass, then, to the consideration of the amendment, through the operation of which under the charge of the trial court this conviction was obtained. No longer was it necessary for the prosecution to comply with the rule of the Riley case (supra) in order to establish the intent to injure or defraud which, as the court said, constituted the gist of the offense. It was the difficulty in proving the intent, made patent by that decision," which "suggested the amendment of 1903.” (Bailey v. State, 158 Ala. p. 25, 48 So. 498.) By this amendment it was provided, in substance, that the refusal or failure to perform the service contracted for, or to refund the money obtained, without just cause, should be prima facie evidence of the intent to injure or defraud.

But the refusal or failure to perform the service, without just cause, constitutes the breach of the contract. The justice of the grounds of refusal or failure must, of course, be determined by the contractual obligation assumed. Whatever the reason for leaving the service, if, judged by the terms of the contract, it is insufficient in law, it is not just cause.” The money received and repayable, nothing more being shown, constitutes a mere debt. The asserted difficulty of proving the intent to injure or defraud is thus made the occasion for dispensing with such proof, so far as the prima facie case is concerned. And the mere breach of a contract for personal

a service, coupled with the mere failure to pay a debt which was to be liquidated in the course of such service, is made sufficient to warrant a conviction.

It is no answer to say that the jury must find, and here found, that a fraudulent intent existed. The jury by their verdict can not add to the facts before them. If nothing be shown but a mere breach of a contract of service and a mere failure to pay a debt, the


jury have nothing else to go upon, and the evidence becomes nothing more because of their finding. Had it not been for this statutory presumption, supplied by the amendment, no one would be heard to say that Bailey could have been convicted.

Prima facie evidence is sufficient evidence to outweigh the presumption of innocence, and if not met by opposing evidence, to support a verdict of guilty. “It is such as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose.” (Kelly v. Jackson, 6 Pet. 632, 8 L. ed. 526.)

We are not impressed with the argument that the supreme court of Alabama has construed the amendment to mean that the jury is not controlled by the presumption, if unrebutted, and still may find the accused not guilty. That court, in its opinion, said: "Again, it must be borne in mind that the rule of evidence fixed by the statute does not make it the duty of the jury to convict on the evidence referred to in the enactment, if unrebutted, whether satisfied thereby of the guilt of the accused beyond a reasonable doubt or not. On the contrary, with such evidence before them, the jury are still left free to find the accused guilty or not guilty, according as they may be satisfied of his guilt or not, by the whole evidence.”' (161 Ala. 78, 49 So. 886.)

But the controlling construction of the statute is the affirmance of this judgment of conviction. It is not sufficient to declare that the statute does not make it the duty of the jury to convict, where there is not other evidence but the breach of the contract and the failure to pay the debt. The point is that, in such a case, the statute authorizes the jury to convict. It is not enough to say that the jury may not accept that evidence as alone sufficient; for the jury may accept it, and they have the express warrant of the statute to accept it as a basis for their verdict. And it is in this light that the validity of the statute must be determined.

It is urged that the time and circumstances of the departure from service may be such as to raise not only an inference, but a strong inference, of fraudulent intent. There was no need to create a statutory presumption, and it was not created for such a case. Where circumstances are shown permitting a fair inference of fraudulent purpose, the case falls within the rule of Ex parte Riley (supra), which governed prosecutions under the statute before the amendment was made. The “difficulty," which admittedly the amendment was intended to surmount, did not exist where natural inferences sufficed. Plainly, the object of the statute was to hit cases which were destitute of such inferences, and to provide that the mere breach of the contract and the mere failure to pay the debt might do duty in their absence.

Consider the situation of the accused under this statutory presumption. If, at the outset, nothing took place but the making of the contract and the receipt of the money, he could show nothing else. If there was no legal justification for his leaving his employment, he could show none. 'If he had not paid the debt, there was nothing to be said as to that. The law of the State did not permit him to testify that he did not intend to injure or defraud. Unless he were fortunate enough to be able to command evidence of circumstances affirmatively showing good faith, he was helpless. He stood, stripped by the statute of the presumption of innocence, and exposed to conviction for fraud upon evidence only of breach of contract and failure to pay.

It is said that we may assume that a fair jury would convict only where the circumstances sufficiently indicated a fraudulent intent. Why should this be assumed in the face of the statute and upon this record ? In the present case the jury did convict, although there is an absence of evidence sufficient to establish fraud under the familiar rule that fraud will not be presumed, and the obvious explanation of the verdict is that the trial court, in accordance with the statute, charged the jury that refusal to perform the service, or to repay the money, without just cause, constituted prima facie evidence of the commission of the offense which the statute defined. That is, the jury were told in effect that the evidence, under the statutory rule, was sufficient, and hence they treated it as such. There is no basis for an assumption that the jury would have acted differently if Bailey had worked for three months, or six months, or nine months, if in fact his debt has not been paid. The normal assumption is that the jury will follow the statute, and, acting in accordance with the authority it confers, will accept as sufficient what the statute expressly so describes.

It may further be observed that under the statute, there is no punishment for the alleged fraud if the service is performed or the money refunded. If the service is rendered in liquidation of the debt, there is no punishment; and if it is not rendered, and the money is not refunded, that fact alone is sufficient for conviction. By a statute passed by the legislature of Alabama in 1901, it was made a misdemeanor for any person who had made a written contract to labor for or serve another for any given time, to leave the service before the expiration of the contract, and without the consent of the employer, and to make a second contract of similar nature with another person without giving the second employer notice of the existence of the first contract. This was held unconstitutional upon the ground that it interfered with freedom of contract. (Toney v. State, 141 Ala. 120, 37 So. 332.) But, judging it by its necessary operation and obvious effect, the fundamental purpose plainly was to compel, under the sanction of the criminal law, the enforcement of the contract for personal service, and the same purpose, tested by like criteria, breathes despite its different phraseology through the amendments of 1903 and 1907 of the statute here in question.

We can not escape the conclusion that, although the statute in terms is to punish fraud, still its natural and inevitable effect is to expose to conviction for crime those who simply fail or refuse to perform contracts for personal service in liquidation of a debt; and judging its purpose by its effect, that it seeks in this way to provide the means of compulsion through which performance of such service may be secured. The question is whether such a statute is constitutional.

This court has frequently recognized the general power of every legislature to prescribe the evidence which shall be received, and the effect of that evidence, in the courts of its own government.

In this class of cases where the entire subject matter of the legislation is otherwise within State control, the question has been whether the prescribed rule of evidence interferes with the guaranteed equality before the law, or violates those fundamental rights and immutable principles of justice which are embraced within the conception of due process of law. But where the conduct or fact, the existence of which is made the basis of the statutory presumption, itself falls within the scope of a provision of the Federal Constitution, a further question arises. It is apparent that a constitutional probibition can not be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escape from constitutional restrictions. And the State may not in this way interfere with matters withdrawn from its authority by the Federal Constitution, or subject an accused to conviction for conduct which it is powerless to prescribe.

While the (thirteenth) amendment was self-executing, so far as its terms were applicable to any existing condition, Congress was authorized to secure its complete enforcement by appropriate legislation. As was said in the Civil Rights Cases: "By its own unaided force and effect it abolished slavery, and established universal freedom. Still, legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit. Ånd such legislation may be primary and direct in its character; for the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States." (109 U. S. 20, 3 Sup. Ct. Rep. 18.)

The act of March 2, 1867 (Rev. Stat., secs. 1990 and 5526, supra), was a valid exercise of this express authority. (Clyatt v. United States, 197 U.S. 207, 25 Sup. Ct. Rep. 429 [Bulletin No. 60, p. 695).) It declared that all laws of any State, by virtue of which any attempt should be made “to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any person as peons, in liquidation of any debt or obligation, or otherwise," should be null and void.

Peonage is a term descriptive of a condition which has existed in Spanish America, and especially in Mexico. The essence of the thing is compulsory service in payment of a debt. A peon is one who is compelled to work for his creditor until his debt is paid. And in this explicit and comprehensive enactment, Congress was not concerned with mere names or manner of description, or with a particular place or section of the country. It was concerned with a fact, wherever it might exist; with a condition, however named and wherever it might be established, maintained, or enforced.

The fact that the debtor contracted to perform the labor which is sought to be compelled does not withdraw the attempted enforcement from the condemnation of the statute. The full intent of the constitutional provision could be defeated with obvious facility if, through the guise of contracts under which advances had been made, debtors could be held to compulsory service. It is the compulsion of the service that the statute inhibits, for when that occurs, the condition of servitude is created, which would be not less involuntary because of the original agreement to work out the indebtedness. The contract exposes the debtor to liability for the loss due to the breach, but not to enforced labor.

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