Home COMMONWEALTH vs. LEWIS BELANGER.

30 Mass. App. Ct. 31

October 12, 1990 - January 25, 1991

Middlesex County

Present: KASS, FINE, & IRELAND, JJ.

Sections 62 and 95 of G. L. c. 149, which regulate the employment of minors, were not, when read together, inconsistent, and a District Court judge incorrectly allowed a motion to dismiss a complaint for violation of Section 62(10) on the ground that the statutory scheme was conflicting, misleading and unconstitutionally vague. [33-35]

COMPLAINT received and sworn to in the Malden Division of the District Court Department on May 26, 1989.

On appeal to the jury session of that division, a motion to dismiss was heard by Ellen Flatley, J.

Judy G. Zeprun, Assistant Attorney General, for the Commonwealth.

Edward S. Robertson for the defendant.


KASS, J. Lewis Belanger is a proprietor of Commonwealth Carrier, a pick up and delivery service. In 1988, he hired a seventeen year old high school student to work for him and, by putting the student behind the wheel of a company van, transgressed G. L. c. 149, Section 62(10). That statute is one of a set of provisions found between G. L. c. 149, Sections 59-105, which regulate work by women and children. Violation of Section 62 carries a ten to fifty dollar fine or a month's imprisonment for the first offense. See G. L. c. 149, Section 78. A District Court judge, after a bench trial, found Belanger guilty and imposed a fifty dollar fine. Belanger appealed to a jury of six and, as a preliminary matter, moved to dismiss the complaint on the ground that conflicting provisions within c. 149 made

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the statutory scheme misleading and unconstitutionally vague. A judge of the District Court allowed the motion to dismiss on the basis of a conflict between Sections 62 and 95, and the Commonwealth has appealed. We think Section 62 is sufficiently clear and precise to withstand constitutional attack and we reverse.

1. Effect of the "educational certificate." Specifically, Section 62(10), proscribes the employment of a minor under eighteen "in operating motor vehicles of any description, except in the course of employment in an automobile repair shop." At the time he was hired, the seventeen-year-old (who was later killed in an accident while operating a motor vehicle for Commonwealth Carrier) had furnished Belanger with a document entitled "Educational Certificate." That is the document, issued pursuant to G. L. c. 149, Section 95, upon which the court relied in granting the motion to dismiss in the District Court.

Section 95 provides that "No minor over sixteen and under eighteen shall be employed . . . by an express or transportation company . . . unless his employer procures and keeps on file an educational certificate showing the age of the minor and whether or not he meets the requirements for the completion of the sixth grade of the public schools of the town where he resides." The certificate in this case was a form supplied by the Department of Labor and Industries and completed by the employee. It states, among other things, that: the minor has completed the eleventh grade; the certificate is valid only for out-of-school time; the employer is Commonwealth Carrier; and the employment is "Carrier/Deliver and pick up packages." In the same block of type which contains the ritual language of certification, there appears the sentence: "Employment for the minor named is authorized only under the conditions stated on the reverse side of this certificate and is subject to the provisions of G. L. ch. 149, forbidding employment in certain classifications of labor."

We understand that an employer looking at the "Educational Certificate" might think it stands for more than it does

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and that it is a permit. It is decorated with the seal of the Commonwealth and, indeed, in the signature block for the superintendent of schools, the certificate is referred to as a "permit." Yet the form states quite expressly that certain classifications of labor may be forbidden. The print in which that warning is delivered is no more fine than the rest of the print on the face of the form.

We also understand the practical difficulty an employer may have in finding the way to and through the statutes of Massachusetts. A set of the General Laws is not standard equipment on the backbar of the average businessperson. That difficulty, however, is not peculiar to the statutory scheme in question but pertains to the whole vast underbrush of statutes and regulations which govern the lives of the inhabitants of the Commonwealth or the country, whether the subject is conditions of employment, health, the manufacture and distribution of food, the sale of securities, the lending of money, the sale of alcoholic beverages, waste disposal, or something else. When statutes impose punishment out of considerations of public policy, lack of knowledge of the law or of the fact that the law has been violated does not exonerate the person who may have unwittingly violated the statute. In such instances, the old chestnut applies that ignorance of the law is no excuse. Commonwealth v. Raymond, 97 Mass. 567 , 569 (1867). Commonwealth v. Everson, 140 Mass. 292 , 295 (1885). Transgressions of that sort of statute have been described as "public welfare" or "strict liability" offenses. See Morissette v. United States, 342 U.S. 246, 256-258 (1952); West's Case, 313 Mass. 146 , 150-151 (1943); Commonwealth v. Buckley, 354 Mass. 508 , 510-511 (1968). Compare Commonwealth v. Wallace, 14 Mass. App. Ct. 358 , 364 (1982), which dealt with whether the defendant in that case knew that the medication he had ingested had an effect on his capacity to drive a car. Cf. Commonwealth v. Klein, 372 Mass. 823 , 833 (1977).

2. Asserted inconsistencies between Section 62 and Section 95. Belanger's argument that Section 62 and Section 95 are so inconsistent as to bewilder and ensnare the ordinarily conscientious employer

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does not survive inspection. Section 62, as we have observed, states a prohibition against the employment of anyone under eighteen "in operating motor vehicles of any description." That prohibition was introduced into the Massachusetts statutes by St. 1913, c. 831, Section 5, as part of an "act to regulate the labor of minors." During the ensuing seventy-seven years, the list of forbidden employment has changed very little. The purpose of those prohibitions is to protect persons under eighteen from exposure to danger "that they might not fully realize on account of their youth, inexperience, lack of foresight and want of restraint." West's Case, 313 Mass. at 151. Bagge's Case, 5 Mass. App. Ct. 839 , 840 (1977). See also Conrad v. Mazman, 287 Mass. 229 , 237 (1934); Boardman's Case, 365 Mass. 185 , 189 (1974).

The lineage of Section 95 begins with St. 1887, c. 433, Section 2, the first of a series of statutes that limited the employment of minors who could not read and write in English. With very few exceptions, the text of Section 95 as it now reads in the General Laws appeared in St. 1926, c. 188, Section 3, an act self-proclaimed as concerned with the education of minors. One cannot read Section 95 without being aware that it is directed to assuring that youths between sixteen and eighteen are minimally educated and that their employment will not interfere with attaining that objective. For example, if the certificate issued by the school superintendent discloses that the youth has not met the requirements for completion of the sixth grade and the community has a public evening school, the employer may not employ the youth unless the latter attends evening school and presents to the employer a record of regular attendance at evening school. So different is the subject matter of Section 95 from that of Section 62, dealing with prohibited occupations, that the claim of inconsistency between the two, and consequent vagueness in the statutory scheme, is altogether unpersuasive.

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That Section 95 identifies certain categories of work, [Note 1] among them "an express or transportation company," at which a minor may labor if the minor has a certificate of education, does not legitimize permitting the minor to engage in work prohibited under Section 62. The distinction between permitted workplace and prohibited work was remarked upon in West's Case, 313 Mass. at 151, in which the court said that a youth might lawfully be employed where there was a hazardous machine but could not, under Section 62(3), clean such a machine while it was in motion.

The statutory scheme "provide[s] a reasonable opportunity for a person of ordinary intelligence to know what is prohibited." Commonwealth v. Jasmin, 396 Mass. 653 , 655 (1986). When, as here, economic regulation is involved, the test of precision is less strict. Ibid. Commonwealth v. John G. Grant & Sons, Co., 403 Mass. 151 , 154 (1988). We have no difficulty concluding that Sections 62 and 95 of c. 149, read together, do not produce a constitutional infirmity.

The order allowing the motion to dismiss is vacated and the case is to stand for trial in the jury-of-six session of the Cambridge District Court.

So ordered.


FOOTNOTES

[Note 1] Since those categories begin with employment in "a factory, workshop, manufacturing, mechanical or mercantile establishment," the scope of employment described is very wide.