(after stating the facts.) This action was brought, under section 6243 of Sandels & Hill’s Digest, to recover $3.30 wages due the appellee and the penalty for not having paid the same when the employee was discharged. That section reads: “Whenever any railroad company, or corporation engaged in the business of operating or constructing any railroad or railroad bridge, shall discharge, with or without cause, or refuse to further employ, any servant or employee thereof, the unpaid wages of any such servant or employee then earned, at the contract rate, without abatement or deduction, shall be and become due and payable on the day of such discharge or refusal to longer employ; and if the same be not paid on such day, then, as a penalty for such non-payment, the wages of such servant or employee shall continue at the same rate until paid: Provided, such wages shall not continue more than sixty days, unless an action therefor shall be commenced within that time.” This act was decided to be constitutional in Leep v. Railway Co., 58 Ark. 407, which has been affirmed on appeal to the supreme court of the United States.
It is contended that the right of action for the penalty accruing was merged in the so-called judgment before M. N. Martin, a justice of the peace. But this cannot be, for there was no jurisdiction for the want of service to render that judgment. It was void, and bound neither party. It was in fact no judgment. There could, therefore, be no merger of the cause of action in it. Black on Judgments, 680.
The plaintiff (appellee) was discharged by the railroad company, which, it appears, has not paid the wages due him at the time of his discharge. It was the duty of the company to pay him. He was not obliged to make demand for the amount due him. If it could be said that he accepted the certificate of identification and statement of his account as payment, it is replied that he was a minor, and elected to disaffirm this agreement. 10 Am. & Eng. Enc. Law (1 Ed.), p. 628.
It appears from the evidence that the plaintiff’s father knowingly permitted him to collect his wages, and though he was a minor, and his father was entitled strictly to collect his-wages, he. waived this right, no doubt, commendably, to encourage his son. He was not bound to collect, or refuse his son the right to do so. According to the case of St. Louis, Iron Mountain & Southern Railway Co. v. Paul, 64 Ark. 83, 93, the appellee wes entitled to the penalty up to the time of the judgment.