Polk v. Thomason

Fish, C. J. (After stating the facts.) The statute involved in this case is exceedingly drastic. In its amended form, the first section of the act provides, that “when the relation of employer and employee, or of landlord and tenant of agricultural lands, or of landowner and cropper, has been created by written contract, or^by parol contract partly performed, made in the presence of one or more witnesses, it shall be unlawful for any person during the life of said contract, made and entered into in the manner above described, to employ, or rent lands-to, or furnish lands to be cropped by said employee, or to disturb' in any way, said relation, without first obtaining the written consent of said employer, landlord or landowner, as the case may be.”' The second section provides that “any person violating the provisions of the foregoing section shall, at the option of the party alleged to have been injured, be prosecuted for a misdemeanor, and upon conviction punished as provided in section 1039 of the Penal Code,, or he shall be liable in damages to said alleged injured party, as-follows: (1) In case of employer and employee, the damages shall not be less than double the amount of wages or salary for the entire period of said contract. (2) In case of landlord and tenant, or of landowner and cropper, the damages shall not be less-than double the annul rental value of the lands rented or cropped, said value to be fixed at 1,000 pounds of lint cotton to the plough.”' Acts 1901, p. 63; Acts 1903, p. 91. It will be seen, from these-provisions, that the act is not only in derogation of the- common law, but is essentially a penal statute. It creates a new offense- and provides for its punishment, but leaves it optional- with the-party injured to prosecute the violator of the statute for- a misdemeanor, or to sue him for damages, and, in the event the injured party adopts the latter course, arbitrarily fixes the amount of damages to be recovered, regardless of the amount of damages actually sustained. So that whether the criminal prosecution or the civil action for damages is pursued, the result, in the event of a conviction in the one or a recovery in the other, is the infliction of a penalty upon the defendant. That the purpose of the act was, in [545] either event, to inflict a penalty is also clearly indicated in its title, by the words “to provide certain penalties.” The statute is therefore to be strictly construed, and not to be extended beyond the clear import of its terms. It was doubtless in view of its stringent provisions that the legislature, when passing the original act, made it applicable only to cases in which “the relation of employer and employee,” etc., “has been created by written contract duly executed before 'an officer authorized to administer oaths.” Acts 1901, p. 63. While the amendatory act of 1903 (Acts 1903, p. 91) made the provisions of the statute applicable to written contracts, whether made in the presence of an officer or not, and to parol contracts partly performed, made in the presence of one or more witnesses, it still evidently adhered to the manifest legislative purpose, that, in a prosecution or a suit brought under the provisions of the statute, proof of the existence of the contract relation in question should not depend alone upon the testimony of an alleged party thereto. Hence the presence of one or more witnesses at the making of a parol agreement was required, in order to bring it within the provisions of the statute, ^ow, suppose the present case should come to trial upon the merits, and the witness who was present when the parol agreement was made should be placed upon the stand, fox the purpose of proving that a parol agreement was entered into between the plaintiff and Freeman which created the relation of landowner and cropper between them, would his testimony be sufficient for this purpose? Clearly not. All that he could testify would be, that in his presence these persons agreed that if certain things did not happen before Christmas, 1905, such relation should exist between them during the year 1906; but whether these things had or had not occurred before Christmas, 1905, he could not testify. So that, in order for the plaintiff to establish the contract relation alleged in the petition, recourse would have to be had to other testimony, necessarily including that of one of the parties to the alleged agreement; and the existence of such contract relation might depend absolutely upon the testimony of the plaintiff, which, it seems evident, was the very thing the statute intended to guard against when it required the contract to be made in writing or in the presence of one or more witnesses. The statute contemplates that, in a prosecution or a suit brought under its provisions, a complete contract, creat [546] ing one of the relations mentioned in the act, shall be shown by a written instrument, or made in the presence of one or more witnesses. In other words, nothing essential to the creation of the relation which the law seeks to protect shall be left to be supplied by the testimony of a party to the agreement. The relation in question must, in the one case, be created by the writing itself, or, in the other, in the presence of one or more witnesses. A contract whereby one of the relations mentioned in the act will be created in the future, upon the happening or non-happening of a given contingency, dependent upon the will of one of the parties, will not meet the requirements of the statute. In the present case the petition expressly alleges that the parol agreement, made in the presence of a witness, was conditional, and that it thereafter '“became absolute/’ because the condition upon which it was to become operative occurred, ^thus rendering it impossible to prove by this witness that the relation of landowner and cropper between the parties to the agreement was created by what passed between them in his presence. We are clearly of opinion that the petition set forth no cause of action. Judgment affirmed. All the Justices concur.