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165 Iowa 697.

test. Probably the great bulk of interstate business is done for the purpose of furthering the business of the foreign corporation. We think the test is: Was the plaintiff engaged in carrying on a local business within this State? We are constrained to hold that under this record it was not, and that the learned trial court erred in directing a verdict for the defendant.

Many other questions relating to the liability of this defendant suggested themselves to one who reads this record, but as those questions were not presented to us, and have not been discussed by counsel, we express no opinion beyond holding that the directed verdict, for the reason stated by the trial court, was erroneous.

Some questions relative to the admission of testimony were discussed by appellant's coursel, especially the deposition of the witness John T. Scanlon, the president of plaintiff company. We think the court did not err in holding that some portions of his deposition were hearsay and inadmissible.

For the error pointed out the judgment of the circuit court is reversed, and a new trial granted.

Brooke, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.

The cases collated in the notes hereafter late Justice MeAlvay.

NOTE.

This case was originally assigned to the referred to abundantly establish the rule that the sale of goods by a corporation to a person in another state does not constitute the doing of business by the corporation in that state, and that the maintenance by a corporation of a sales agency in another state does constitute doing business therein. Modern business methods have popularized a form of contract which is somewhat difficult of classification as between the foregoing rules, of which the contract dealt with in the reported case is typical. That contract provided for the grant by a foreign corporation of an exclusive agency binding the so-called agent to handle no competing lines and to sell at specified prices. It provided however that the so-called agent should pay monthly for all goods sent to him, and provided no form of remuneration to him except the profit realized on the sale of the goods. The court holds that the transaction was a sale to the so-called agent, and that it did not constitute the doing of business within the state. A like result was reached under an identical contract in an unreported case in Tennessee, referred to in the reported case, and in a recent Canadian case. Standard Fashion Co. v. McLeod, 7 Alberta L. Rep. 145, wherein the court said: Ann. Cas. 1916E.-27.

"In this case it is true that the agreementwhich is in writing-between the plaintiff company and the defendants purports to be an appointment by the company of the defendants as the company's agents. But there is no magic in a word, and we must see the sense of the agreement as a whole. The patterns and publications were, I think, clearly under the agreement sold by the company to the defendants; the provision for the return on certain conditions of those which the defendants failed to sell to their customers gave the right to the defendants to have the company 'redeem' them—that is, buy them back."

As is pointed out in the reported case the question whether a transaction constitutes interstate commerce so as to be without a regulation of doing business by a foreign corporation is one on which the federal decisions are controlling, and those decisions, reviewed at length in Butler Bros. Shoe Co. v. U. S. Rubber Co. 156 Fed. 1, 84 C. C. A. 167, and In re Monongahela Distillery Co. 186 Fed. 220, tend strongly to sustain the decision in the reported case. The cases discussing what constitutes doing business in a state by a foreign corporation are collated in the notes to the following cases: John Deere Plow Co. v. Wyland, 2 Ann. Cas. 304; Osborne v. Shilling, 11 Ann. Cas. 319; Hessig-Ellis Drug Co. v. Sly, Ann. Cas. 1912A 551; John Deere Plow Co. v. Agnew, Ann. Cas. 1913E 1145; Abbeville Electric Light, etc. Co. v. Western Electrical Supply Co. 85 Am. St. Rep. 890. The case of Hessig-Ellis Drug Co. Sly, supra, involved a contract very similar to that construed in the reported case, and a similar conclusion was reached therein.

V.

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and forbidding the granting of special privileges or immunities, as the school district is a creation of the legislature, and the powers and duties of its officers are defined by legislative act, and consequently it could enlarge or abridge the same; the object of the statute being to bring about higher standards in teaching and encourage competition in qualifications rather than wages.

[See note at end of this case.] Criminal Law

Crime

What Constitutes

Statutory Misdemeanor. The hiring of a school teacher at less than the minimum wage, in violation of Acts 35th Gen. Assem. c. 249, section 4 of which provides that any school officer violating the act shall be fined from $25 to $100, is a "crime" within Code, § 5092, defining a "crime" as an act committed in violation of a public law forbidding it, and is triable as a "misdemeanor" under Code, §§ 5093, 5094, declaring a "felony" to be a public offense punishable by imprisonment in the penitentiary, and every other public offense a "misdemeanor," and section 4905, further defining a "misdemeanor" as the doing of any act prohibited by a statute which provides no penalty, it not being essential that the statute declare that its violation shall be a crime, and the collection of the fine by civil action being impossible until the amount is determined in a criminal prosecution, section 5095 forbidding punishment for a public offense except upon legal conviction.

Courts Jurisdiction of Criminal Case Defect in Information.

The court is not deprived of jurisdiction because the information states only legal conclusions, as it may be cured by amendment, and a defendant is not entitled to habeas corpus on that ground.

Appeal from District Court, Fayette county: HOBSON, Judge.

Habeas corpus proceeding. M. N. Bopp, plaintiff, and Ed. R. Clark, defendant. From judgment rendered, plaintiff appeals. The facts are stated in the opinion. AFFIRMED.

H. P. Hancock for appellant. George Cosson, John Fletcher, and C. B. Hughes for appellee.

[698] EVANS, J.-I. The statute which is assailed as unconstitutional by this proceeding is chapter 249 of the Laws of the 35th G. A., which is known by the published title as the "Minimum Wage for Teachers in the Public Schools." Sections 1 and 2 of such act fix certain rates of wages for school teachers, graded according to their proficiency as indicated by their official certificates. Sections 3 and 4 thereof are as follows:

"Sec. 3. It shall be unlawful for any school board or any school officer to contract for or pay a less wage to any teacher in the public

schools of this state than the minimum amounts herein fixed for the grade certificate held by such public school teacher. But nothing herein shall be construed as limiting the right to make a lawful contract for a higher wage than herein specified as a mini

mum.

"Sec. 4. Any school officer violating the provisions of this act shall be fined a sum of not less than twenty-five ($25.00) dollars, nor more than one hundred ($100.00) dollars in the discretion of the court, and shall be suspended from office."

Information was filed against the plaintiff charging that as a school officer he entered into a contract with a teacher for the public school of his district for a less rate of wages than provided in such act. A warrant being issued on such information, he was arrested thereunder. He immediately sued out a writ of habeas corpus in this proceeding. We infer from the record that the criminal prosecution is undetermined and still pending awaiting the outcome hereof.

Appellant challenges the validity of the act as being in violation of sections 1 and 6 of article 1 of the Constitution of Iowa. Such sections are as follows:

"Section 1. All men are, by nature, free and equal, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness.

"Section 6. All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any [699] citizen or class of citizens, privileges or immunities, which upon the same terms shall not equally belong to all citizens."

Counsel for appellant has been unable to cite any pertinent authorities in support of his contention. His argument is brief and is based wholly upon analogy. We think it clear that the sections of the Constitution above quoted have no special application to the case and that they are in no manner violated by the legislation complained of. The school district is a creation of the Legislature. Its powers and the method of their exercise are all defined by legislative act. In like manner the powers and duties of its officers are defined. Such officers have no powers except such as are conferred by legislative act. Prior to the act in question the power of the school officer to make contracts with teachers was conferred by section 2778 of the Code. If the Legislature was within its authority in conferring such power upon school officers, it necessarily had the same authority to enlarge or to abridge the same. Appellant's counsel concedes that the Legislature would have had authority to fix a maximum wage. Accepting this concession,

165 Iowa 697.

it would seem to follow of logical necessity that it had equal authority to fix a minimum wage. The argument at this point is that the statute in question interferes with the right of the particular teacher to accept such wages as he will, whether below the statutory schedule or not. The manifest purpose of the law is to offer and maintain an inducement to higher standards in the profession of teaching and to encourage competition in qualifications among teachers rather than in the amount of wages. Even teachers whose acquired standards may be equal, as indicated by their respective certificates, may yet vary greatly in their practical success as teachers. As to such teachers, school officers would naturally select the best in preference to the worst, unless such best were underbid in the competition. The purpose of the statute is to eliminate competition at this point below the specified rate.

[700] It is a matter of common observation that school officers are sometimes large taxpayers who have no children dependent upon the public schools for their education. Such officers are under constant temptation to overemphasize the importance of low wages for teachers and to attach too little importance to the qualifications of teachers. In such cases, the lowest bidder obtains the employment, and this often to the great detriment of the public interest. That the rights of individual teachers are not invaded by such legislation is well settled by the decisions of many eminent courts. It will be sufficient to cite Atkin v. Kansas, 191 U. S. 207, 24 S. Ct. 124, 48 U. S. (L. ed.) 148, and the cases therein cited.

Whether the practical working of this legislation will meet the intended purpose can be determined only by experience. All new legislation is necessarily experimental and in a sense tentative. The courts cannot be called upon to guarantee its wisdom nor to condemn it for want of wisdom. All that we hold here is that the legislation in question herein is within the domain of legislative authority.

II. It is further urged on behalf of the appellant that, though the act in question be constitutional, its violation does not constitute a crime within the meaning of the law. The reason urged is that such statute does not in terms declare that its violation shall constitute a crime, and that the only penalty imposed in terms for its violation is a fine, and that no penalty of imprisonment is imposed. The penal provisions of the act are contained in sections 3 and 4 which we have quoted above. Sections 1 and 2 of the act are mandatory; sections 3 and 4 thereof are prohibitory. Section 3 declares a violation of the act by any "school officer" to be "unlawful." Section 4 provides that any school officer who shall violate the provisions of the

not less than

act "shall be fined $25, nor more than $100, in the discretion of the court, and shall be suspended from oflice." Appellant's argument at this point is based upon the absence from the statute of the words [701] "crime," "misdemeanor" or "felony." The argument is that a mere "fine" is equivalent to "penalty" or "forfeiture," and that it may be recovered by civil action without criminal prosecution. In general terms, a crime is an act committed in violation of a public law. 4. Blackstone 15. Under our statute all crimes are classified as (1) felonies, and (2) misdemeanors. Code, section 5092. Each class is defined as follows:

"Sec. 5093. A felony is a public offense which is, or in the discretion of the court may be, punished by imprisonment in the penitentiary.

"Sec. 5094. Every other public offense is a misdemeanor."

A misdemeanor is further defined by section 4905 of the Code as follows:

"Sec. 4905. When the performance of any act is prohibited by any statute, and no penalty for the violation of such statute is imposed, the doing of such act is a misdemeanor."

It is well settled that it is not essential that any criminal statute shall declare in terms that its violation shall constitute a misdemeanor or felony. These terms are absent from a large number of our criminal statutes. The omission of these terms is fully supplied by the statutory definitions which we have just quoted. State v. Shea, 106 Ia. 735, 72 N. W. 300; State v. York, 131 Ia. 635, 109 N. W. 122; and State v. Conlee, 25 Ia. 237, involved the construction of criminal statutes which prohibited certain acts. These statutes did not in terms declare their violation to be criminal, nor did they provide any penalty. It was held, nevertheless, that the violation of such statutes constituted misdemeanors under the definition of sections 4905, 5093, and 5094, and they were held to be indictable as such under the provisions of section 4906, which is as follows: "Section 4906. Every person who is convicted of a misdemeanor, the punishment of which is not otherwise prescribed by any statute of this state, shall be punished by imprisonment in the county [702] jail not more than one year, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment."

Counsel for appellant differentiates the cited cases from the case at bar on the ground that the statute under contemplation in the case at bar does in terms provide a penalty. for its violation, and that therefore it fails to come within the definition of section 4905 which purports to apply to cases where “no penalty" is provided. This contention, how

ever, distorts the statute by concentrating its emphasis upon this particular expression. Considering all the above statutes of definition, it is rendered quite clear therefrom that the doing of an act in violation of statutory prohibition is a public offense. Such public offense will be a felony or a misdemeanor according to the punishment which may be imposed therefor. If the statute itself fixes the punishment, such provision will be controlling, and the classification of the public offense either as felony or as misdemeanor will be thereby determined. If such statute fixes no punishment, then sections 4905 and 4906 become controlling. The first fixes the classification of the offense as a misdemeanor and the second fixes the range of punishment. In the case at bar the statute does provide for punishment in the way of a fine. This of itself implies a public offense. The limitation of the fine to a sum not in excess of $100 classifies it as a misdemeanor. It is argued, however, that, because no imprisonment is imposed, a mere fine is collectible by civil action. For the purpose of the argument only, it may be conceded that a civil action may lie in an appropriate case to recover a fine as distinguished from penalty or forfeiture. Such actions, however, are usually based upon express statutory provisions. There is no such provision in the statute under consideration. Neither does the statute fix the exact amount of fine which may be imposed. There is no way provided under our statutes whereby the amount of such fine can be determined except in a criminal prosecution. Section 5095 provides: "Sec. 5095. No person can be punished for a public offense except [703] upon legal conviction in a court having jurisdiction thereof." There is no way provided in our statutes to obtain jurisdiction over a defendant for the purpose of legal conviction for a public offense except by information and arrest thereunder. Until legally convicted of the public offense, the defendant is not liable for the payment of the fine.

a

It is our conclusion therefore that the violation of the provisions of the statute in question by the plaintiff herein was a misdemeanor and triable and punishable as such, subject in extent to the limitations of the statute itself.

III. It is further urged by the appellant that the information failed to charge any offense, in that it stated no sufficient facts, but stated legal conclusions only. If the information is not sufficiently specific, it is amendable.

Proceedings thereunder are not rendered void by reason of its insufficiency. If they were, they could not be saved by its amendment. The jurisdiction of the criminal court over the defendant after his arrest is not lost by mere defect in information or indictment. This is illustrated by the pro

visions of our statute which authorize the district court to hold a defendant pending the return of a second indictment where the prosecution against him has failed for insufficiency of a prior indictment. We reach the conclusion therefore that the appellant is entitled to no relief in this proceeding. The trial court so held.

Its order is therefore affirmed.
All Justices concur.

NOTE.

Validity of Statute Fixing Minimum Salary of School Teachers.

Apparently, the reported case is the only decision wherein a court has passed on the constitutionality of a statute establishing for public school teachers a minimum wage, the rate thereof being fixed by the grade of the certificate held. The experimental character of the statute in question is recognized by the court, which being unable to pass on its wisdom, declares it to be constitutional in that the legislature in enacting the statute did not exceed the legislative power granted to it by the constitution.

In this connection it may be noted that in New York legislation has been in force for a considerable time fixing minimum salaries to be paid to teachers employed in the city of New York. These provisions were originally embodied in Laws of 1897, chapter 378, section 1091. That section was amended by chapter 417 of the Laws of 1899, and by chapter 751 of the Laws of 1900, better known as the Davis Law. The purpose of the enactments was to effect equality and simplicity in the educational system of the city of New York as regards compensation of teachers.

A minimum rate of pay was established for teachers engaged in certain particular grades of work under certain prescribed conditions. They have frequently been before the courts both for construction and the enforcement of

rights granted thereunder. It does not appear, however that anyone has questioned their validity on constitutional grounds. See McCabe v. Cook, 29 Misc. 679, 61 N. Y. S. 588; Loewy v. Board of Education, 59 Misc. 70, 112 N. Y. S. 4; Brown v. Board of Education, 70 Misc. 399, 125 N. Y. S. 16, affirming 136 App. Div. 721, 121 N. Y. S. 491; Sheehan v. Board of Education, 120 App. Div. 557, 104 N. Y. S. 1002, affirmed 193 N. Y. 627, 86 N. E. 1133; Moore v. Board of Education, 121 App. Div. 862, 106 N. Y. S. 983. affirmed 195 N. Y. 614, 89 N. E. 1105; Hazen v. Board of Education, 127 App. Div. 235. 111 N. Y. S. 337; Bronx Borough Teachers' Assoc. v. Board of Education, 118 N. Y. S. 483; Thomson v. Board of Education, 201 N. Y. 457, 94 N. E. 1082.

115 Ark. 317.

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Prohibition

Against Unwarranted

Injunction. The writ of prohibition is that process by which a superior court prevents an inferior tribunal from exercising jurisdiction with which it has not been vested by law. Hence, where the chancery court attempts to enjoin execution of a judgment in a criminal proceeding, a writ of prohibition will be issued to prevent the court from exceeding its jurisdiction.

[See 111 Am. St. Rep. 930.] Same.

That a chancery court which enjoined the execution of a criminal judgment did not propose to issue any further order is no ground for the denial of a writ of prohibition, for the denial of the writ would leave the injunction in force.

Criminal Law Present Insanity Time When Issue May Be Tried. Kirby's Dig. § 4003, providing for insanity inquests by the probate court, was enacted solely for the purpose of protecting the civil and property rights of insane persons, and has no reference to determining the question of the sanity of one who has been convicted and sentenced to be executed for a criminal offense.

[See note at end of this case.] Same.

Kirby's Dig. § 2454, providing for an inquest by sheriff's jury into the insanity of persons sentenced to be executed, affords such person a remedy in case he becomes insane after trial. Hence the chancery court cannot, on the ground that such person has no other remedy, justify an order enjoining his execution.

[See note at end of this case.] Same.

Acts 1913, p. 172, providing that, when a judgment of death is pronounced on any per

son, such person shall be conveyed to the state penitentiary and there kept until executed, does not by implication repeal Kirby's Dig. 2454, authorizing the sheriff to hold an inquest into the sanity of the person sentenced to be executed.

[See note at end of this case.] Same.

Regardless of statute, one convicted and sentenced to execution will, where he becomes insane after trial, be granted a stay of execution. Hence the chancery court cannot justify an order enjoining execution on the ground that the party had no remedy at law. [See note at end of this case.]

Original petition for writ of prohibition. J. V. Ferguson et al., petitioners, and J. E. Martineau et al., respondents. WRIT GRANT

ED.

[318] One Arthur Hodges was convicted of murder in the first degree in the Clark Circuit Court. He appealed to this court and the judgment of the circuit court was affirmed. After the judgment of the Clark Circuit Court, Hodges made application to that court for a writ of coram nobis to inquire into the issue of his sanity at the time of the alleged offense for which he was convicted. The writ was issued, and upon a trial of that issue before a jury it was determined that Hodges was sane. Hodges was then conveyed to the State penitentiary and delivered to the superintendent thereof to await his execution [319] under the provisions of the act approved February 15, 1913, Act 55, the Acts of 1913.

On the 6th day of November, 1914, upon the petition of W. M. Rankin, with accompanying affidavits, setting forth that Arthur Hodges is now insane, and asking that inquiry be made into the question of his sanity at the present time, the county and probate judge of Pulaski County, upon consideration of the petition, granted the same and ordered a warrant to issue for the arrest of Arthur Hodges, and directed the sheriff to have him before the probate court on the 23d day of November, 1914, to have the question of his sanity determined.

On the 7th of November, 1914, application was made to the chancery court of Pulaski County for an injunction against the Commissioners of the Arkansas Penitentiary, restraining them from executing Hodges on the day set for his execution. The chancery court granted the petition and issued an order enjoining the commissioners from executing Hodges on the 14th day of Novem ber, 1914, or on any other date until the further orders of the chancery court.

The petitioners apply to this court for writs of prohibition, directed to the judge of the chancery court of Pulaski County and to the judge of the county and probate

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