I respectfully dissent from the ruling that a crime was committed in this case. Strict construction of criminal statutes is a fundamental principle of our law. ‘ ‘ Criminal statutes are to be construed strictly: liberally in favor of the defendant and strictly against the State, both as to the charge and the proof. No one is to be made subject to such statutes by implication.” (State v. Bartley, 304 Mo. 58, 263 S. W. 95; See also State v. Lloyd, 320 Mo. 236, 7 S. W. (2d) 344; State v. Taylor, 345 Mo. 325, 133 S. W. (2d) 336; State v. Dougherty, 358 Mo. 734, 216 S. W. (2d) 467; Tiffany v. National Bank of Missouri, 85 U. S. 409, 18 Wall. 409, 21 L. Ed. 862.) A defendant should not be held to have committed a crime by any act which is not plainly made an offense by the statute.
The statute in this case, Sec. 129.060, R. S. 1949, is as follows: ‘ ‘ Any person entitled to vote at any election in this state shall, on the day of such election, be entitled to absent himself from any services or employment in which he is then engaged or employed, for a period of four hours between the times of opening and closing the polls; and such voter shall not, because of so absenting himself, be liable to any penalty: PROVIDED, HOWEVER, that his employer may specify the hours during which such employee may absent himself as aforesaid. Any person or corporation who shall refuse to any employee the privilege hereby conferred, or shall discharge or threaten to discharge any employee for absenting himself from his work for the purpose of said election, or shall cause any employee to suffer any penalty or deduction of wages because of the exercise of such privilege, or who shall, directly or indirectly, violate the provisions of this section, shall be deemed guilty of a misdemeanor, and on conviction thereof be fined in any sum not exceeding five hundred dollars. ’ ’
The first sentence states the privilege conferred upon an employee. The second sentence makes it a crime for an employer to refuse to any employee the privilege conferred by the first sentence. Nowhere in the first sentence is it stated that the privilege includes payment by the employer to the employee for time or activity not covered by the terms of his employment. It only says that he shall not be liable to any penalty. When, as here, the contract (under which the employee agrees to work and under which the employer obligates himself to pay) provides that the employee is to receive $1.60 per hour for each hour worked, there could be no penalty by not paying him what he has not earned. It is true that the second sentence of the statute makes imposing a “penalty or deduction of wages” an offense, and thereby includes “deduction of wages” in the definition of the term “penalty”; but how can there be a “deduction of wages” unless some wages have been earned? It is conceded here that the ° 6 *315employee was paid for the full time he had worked on election day and every other day. How can an employee, who is paid on the basis of so much per hour for every hour worked, and who receives pay at the agreed rate for every hour of work actually performed, be subjected to “deduction of wages” by not being paid more? There must first be a right to wages before there can be a deduction of wages, and there is nothing in this statute which creates a right to any wages or pay beyond that for which the parties have contracted. Therefore, no duty is imposed on an employer to pay more than is provided for by the contract of employment made by the parties themselves. I think to construe it otherwise would be to make such employers and employment contracts subject to this statute purely by implication, and to me a very far fetched implication at that.
Furthermore, I think to construe this statute as creating a right to wages beyond and in addition to what the parties have agreed upon, would make it unconstitutional as including an additional subject not clearly expressed in the title, in violation of Sec. 23, Art. Ill of our Constitution. This is a very'broad statute; it covers every election of any kind and every kind of employment, agricultural and domestic, as well as industrial. Surely to create such a broad and all inclusive right and obligation as to require any person, who employs another to work and be paid by the hour, to also pay him on any election day for the time he takes to vote (up to four hours) is a new subject to our law and our economy. The purpose of this section of the Constitution is to prevent the public and the members of the Legislature from being misled as to the contents of a bill. (State ex rel. United Railways Co. v. Wiethaupt, 231 Mo. 449, 133 S. W. 329; State ex inf. Barrett v. Imhoff, 291 Mo. 603, 238 S. W. 122; see also Hunt v. Armour & Co., 345 Mo. 677, 136 S. W. (2d) 312.) The title to this act was: “An Act to Amend an Act Entitled ‘An Act to Prevent Corrupt Practices in Elections, to Limit the Expense of Candidates, to Prescribe the Duties of Candidates and Political Committees, and Provide Penalties and Remedies for Violation of This Act,’ approved March 31, 1893, by inserting between Sections 4 and 5 three new sections to be known as Sections 4a, 4b and 4e.” (Laws 1897, p. 108.) It seems to me clear that neither this title, nor the title to the original ‘.‘Corrupt Practices Act” included in it, gave any indication whatever that a new right was being created to obligate every employer to pay wages to anyone employed by him, for time taken to vote, in addition to the wages and method of work and payment agreed on between them.
It is, of course, highly desirable to include in the corrupt practices act a prohibition against any influence or intimidation of an employee by an employer and certainly also against imposing any penalty or making any deduction of wages actually earned and due under the contract between them. It is equally important to safeguard the *316employee’s right of franchise by requiring his employer to allow him time to vote; and to make a violation of such obligations by the employer a criminal offense. An employee, whose contract is to be paid by the month or year, has, of course, earned his pay even [897] though he has taken off from his duties some time to vote or for other personal purposes. It would certainly be a violation of the employment contract, as well as a corrupt practice, for an employer to hold out part of compensation earned, under such circumstances. However, the matter of time of service and method of compensation is a matter of contract, at least until the State steps in to regulate it, and certainly when the State does decide to do so (by fixing maximum hours, minimum hours or requiring pay for an outside activity) that is a separate and distinct subject from election laws or corrupt election practices.
I think the judgment should be reversed.
Conhling, J., and Vandeventer,-Special Judge, concur. VANDEVENTER, SPECIAL JUDGE.In addition to the reasons given by Judge Hyde in his dissenting opinion, in which I concur, I think this cause should be reversed because that part of See. 11,785 upon which this conviction is based conflicts with the State and Federal Constitutions. I believe that section (now Sec. 129.060 R. S. Mo. 1949) is unconstitutional in so far as it makes it a crime for an employer to deduct from the pay of his employee the amount of time lost by the employee in absenting himself on election day. In my judgment, it violates the provisions of both the state and federal constitutions which forbid the taking of property without due process of law, and guarantees to every citizen the equal protection of the law. (Am. XIV Const. U. S. Sec. 1. Art. 1, Sec. 10, Const. Mo. 1945) The statute in question is as follows:
“Any person entitled to vote at any election in this state shall, on the day of such election, be entitled to absent himself from any services or employment in which'he is then engaged or employed, for a period of four hours between the times of opening and closing the polls; and such voter shall not, because of so absenting himself, be liable to any penalty: PROVIDED, HOWEVER, that his employer may specify the hours during which such employee may absent himself as aforesaid. Any person or corporation who shall refuse to any employee the privilege hereby conferred, or shall discharge or threaten to discharge any employee for absenting himself from his work for the purpose of said election, or shall cause any employee to suffer any penalty or deduction of wages because of the exercise of such privilege, or who shall, directly or indirectly, violate the provisions of this section, shall be deemed guilty of a misdemeanor, and on conviction thereof be fined in any sum not exceeding five hundred dollars.” (Italics mine)
*317A careful reading of this statute demonstrates that its main purpose was to allow every employed citizen to absent himself from his labor on election days long enough to cast his ballot. There is nothing in this statute that requires him to voté, although he may demand four hours relief between the opening and closing of the polls. The part that I think is unconstitutional is that • part which condemns the employer if he deducís any of the employee’s wages. Really, it isn’t a deduction of wages for the employee has rendered no services for which he should be paid. The statute apparently means that if the employer fails to pay the employee for work that he does not do during the usual working hours when the employee is absent, the employer is deemed guilty of a misdemeanor. He is guilty, according to the statute, if he ‘ ‘ shall cause any employee to suffer any * * * deduction of wages because of the exercise of such privilege, * * The privilege given by the words of the statute is not the privilege of voting but it is the privilege of absenting himself for four hours between the opening and closing' of the polls. Whether reference to the privilege or duty of voting was left out deliberately and designedly, we have no way of knowing, but clearly under the statute, the employer could be punished for deducting any wages of the employee during the time he has absented himself, whether he voted or not. However, if the statute did specifically say that the employee must vote, if he takes the time off, I am still of the opinion that it attempts to take property of the employer without due process of law, and denies him the equal protection of the law.
Due process of law, when referring to legislation, has been defined as follows:
“As applied to legislation, due process of law means- statutes that are general in operation and affect the rights of all alike.” (16 C. J. S. Constitutional Law, Sec, 567 (c) Page 1145)
It does not mean merely an act of the legislature, for such a construction would abrogate all restrictions ' on legislative power. Pauly v. Keebler, 185 N. W. 554, 175 Wis. 428.
There are decisions that hold squarely under a statute almost identical with this one that it is violative of these constitutional guarantees. Those eases are: People v. Chicago, M. & St. P. R. Co., 306 Ill. 486, 138 N. E. 155, 28 A. L. R. 610. McAlpine v. Dimick, 157 N. E. 235, 326 Ill. 240, 245. Illinois Cent. R. Co. v. Commonwealth, 204 S. W. (2) 973, 305 Ky. 632, Cer. den. 92 L. Ed. 1767, 334 U. S. 843, 68 S. Ct. 1511.
Division One says in its opinion:
“It is apparent that Section 11785 is violative of the due process clauses of both the Federal and State Constitutions unless its enactment is within the police power of the State.”
So if it can be justified at all, it must be based on the valid exercise of the police power. I recognize that while “police power” cannot *318be definitely and briefly defined in such a way as to embrace all sets of facts that might face the courts, yet a general definition is epitomized in C. J. S. as follows:
“Police power is the exercise of the sovereign right of a government to promote order, safety, health, morals, and the general welfare of society, within constitutional limits.” (16 C. J. S. Constitutional Law, Sec. 174)
If Section 11785 (129.060 R. S. Mo. 1949) is to be held within the police power, it certainly would be under “morals” or “the general welfare of society.” But section 196 of C. J. S. Constitutional Law, tersely states “The exercise of the police power is subordinate to constitutional limitations thereon.”
So far as we have been cited, or I have been able to find from an independent investigation, the first and leading case in the United States directly on this question is the case of People of the State of Illinois v. Chicago, Milwaukee and St. Paul Railway Co., 306 Ill. 486, 138 N. E. 155, 28 A. L. R. 610. An annotation at the end of that case in A. L. R. confirms my opinion that it is a case of first impression. In that case the Supreme Court of Illinois had under consideration a statute almost identical with the one before us except it permitted the employee two hours absence instead of four That Court said:
“Under our state and Federal Constitutions every person is guaranteed the equal protection of the law in the right to own, use, and enjoy property. These Constitutions also distinctly provide that the property of no person shall be taken unless compensation be given to him for such invasion of his rights. Any law that deprives any person of his property or compels him to deliver to any person his property without justification deprives him of property without due process of law. The section of the statute above quoted violates the provision of our Constitution aforesaid by providing, in substance, that no deduction from the usual salary or wages of the employee shall be made by his employer on account of such absence, and by subjecting the employer to the penalty aforesaid in case he makes such deduction from the employee’s wages. There is no justification or sound reason to be found in the law for making such a discrimination between an employer of labor and other persons who do not employ labor, and it likewise is a clear violation of the due process clause of the 14th Amendment to the Federal Constitution. The legislative branches of this government and of this state have gone to the utmost limits in legislation to protect the lives, health, and safety of employees, and the courts of this country, including this court, have also gone far in sustaining those laws wherever and whenever it reasonably appeared that such laws were necessary or beneficial in protecting the lives, health, and safety of such employees while at work, without regard to the question of cost *319to employers. The same courts have gone equally far in sustaining laws that guarantee the equal and untrammeled right of every citizen to exercise his right of franchise and to east his vote at every election as he pleases and for whom he pleases, and without hindrance or undue influence of any kind by any person; but, so far as we know, no court has ever decided in any case that it was the right of any citizen, under any circumstance, to be paid for the privilege of exercising his right to vote or to be paid by his employer for the time employed by him in the exercise of his right to vote. The statute in this case in substance requires employers of laborers to pay them for two hours’ time while exercising their right to vote, and thus deprives such employers of their money and property without due process of law, and thereby denies them the equal protection of the laws, in violation of both the Federal and State Constitutions.”
The State of Illinois in this case argued, as is argued here, that this statute was a valid exercise of the police power but that contention was considered by the court and it said:
“It is true that the state does have the right, under its police powers, to pass laws that tend to promote the health, safety, or morals of such employees as Turney, because of the fact that such laws would tend to promote the health, comfort, safety, and welfare of society. The act in question, as contended by plaintiff in error, does not in any way, so far as we are able to see, tend to promote the health, safety, or morals of such employees. The provisions in question are not adapted to the object for which the law was enacted, and cannot be said to secure public comfort, welfare, safety, or public morals. There is no contention, and there can be none made with any reasonable showing, that the provision in question tends to promote the safety or health of any employee. It has always been the policy of our laws to condemn the idea of any voter being paid for exercising the privilege of an elector or voter. The right to vote is simply one of the privileges guaranteed to every citizen of this country who possesses the requisite qualifications. It is not only a right, but should be regarded as a duty of the citizen, where he is reasonably able physically to perform that duty. It is not the constitutional right of any citizen to be paid for the exercise of his right to vote, and the holding of the provision of the statute void does not violate the right of any citizen, including those who are employed to labor. This provision of the statute is not sustainable under the police power of the state, and it does violate the constitutional provisions aforesaid, and therefore must be declared void. Besides, ‘no exercise of the police power can disregard the constitutional guaranties in respect to the taking of private property, due process, and equal protection’ of the laws, and it should not ‘pverride the demands of natural justice.’ ”
*320In the case of McAlpine v. Dimick, 326 Ill. 245, 157 N. E. 235, the question was again before the Supreme Court of Illinois and that court reaffirmed its doctrine in People v. Chicago, Mil. & St. Paul Railway Co. Supra, saying:
“The provision of section 7, giving employees the right to absent themselves from their employment for two hours- on election dáy for the purpose of voting without any deduction from their salaries or wages on account of such absence is also unconstitutional, being a violation of section 2, article 2 of the Constitution. ’ ’
If it was unconstitutional then, it is now. The Constitutional provision and the statute remain the same. A valid exercise of the police power cannot transcend the Constitution.
In Zelney v. Murphy, 387 Ill. 492, 56 N. E. (2) 754, which was a suit for unemployment compensation, the court mentioned the case of People v. Chicago, Milwaukee and St. Paul R. R. Co. and said:
“The statute there, as questioned, provided a penalty for any employer who made a deduction in wages for a period of two hours used by such employee in voting at any general or special election and the court held that it was not .the constitutional right of any citizen to be paid for the time consumed in exercising the right.to vote. The court further said: ‘ “No exercise of the police power can disregard the constitutional guaranties in respect to the taking of private property, due process and equal protection” of the laws.’ This holding was approved in McAlpine v. Dimick, 326 Ill. 240, 157 N. E. 235. However, this statute, reenacted and amended from time to time, still contains this provision providing for the right of any citizen to be paid for the time consumed in exercising his right to vote. These cases, of course, could not be controlling as to the statute under consideration here and especially in view of the growing appreciation of public needs and of the necessity of finding ground for a rational compromise between individual rights and public welfare.”
The fact that the statute has been re-enacted and amended, placed and maintained, on the statute books and apparently never enforced, does not make it constitutional. The statute in this state was enacted more than 50 years ago and the fact that there are no decisions on it until now does-not inferentially or otherwise tend to prove its constitutionality. More likely it proves that there has never been any attempt to enforce it. The case at bar seems to be the first one, as far as the books show, where this State has endeavored to punish an employer for refusing to pay an employee under these circumstances. And I can find no attempt on the part of any employee to collect such, as it appears to me, unrighteous compensation. I had rather believe that absence of precedent is due to the fact that the workers of Missouri have resented the legislative implication that they will not exercise that privilege of free men without being paid for it. *321I had rather think that in their scales the right to vote outweighs a few hours pay.
In Illinois Central Railway Company v. Commonwealth, 305 Ky. 632, 204 S. W. (2) 973, the same question was up and that court held it unconstitutional both under the Kentucky Constitution and the Constitution of the United States. As I read that opinion, it did not base its decision upon the People v. Chicago, Milwaukee & St. P. R. Co., supra, but after it had discussed the statute, its reasons for holding it unconstitutional, and then declaring its uneonstitutionality under the Kentucky Constitution, it said this:
“We also believe that the wage-paymeiit-for-voting-time provisions of this statute are antagonistic to the United States Constitution, particularly that provision which says that no state shall deprive any person of his property without due process of law or deny to any person in its jurisdiction the equal protection of the law.-
“So far as we know, there has been only one'case of this exact character decided by any court of last resort in the United-States. The holding of that one ease was that such a law as this one now under consideration, passed by legislative authority in the State of Illinois, could not meet constitutional standards and must accordingly fall in the face of the fundamental restrictions of organic law. See People v. Chicago, M. & St. Paul Ry. Co., 306 Ill. 486, 138 N. E. 155, 28 A. L. R. 610.”
It seems to me that this question here boils itself down to this proposition, can the legislature, without violating the provisions of the Constitutions, compel an employer to pay wages to his or its employee for four hours, or any other amount of time, that he absents himself on election day and for Avhich he gives his employer no service?
It is the duty of every good citizen to vote. On that day, and only then, he stands equal Avith every other citizen. Of course, the employer should not be permitted to deprive him of this duty by refusing to let him leave the place of his employment. -To penalize him if he does is certainly a valid exercise of the police poAver and promotes the general Avelfare of the country in increasing the number of voters and thereby make the, questions to be determined at the polls-represent the voices of a greater number. But to require the employer to pay him while absenting himself on election day (of for going to the polls to vote although the statute does not require that) does not promote the morals of the citizens but in my judgment, has the opposite effect. To pay a voter for going to the polls to vote is the first step toAArard corruptly influencing him to vote a certain way.
What benefit does the employer receive by the employee voting that is different to the benefit that the voter himself receives or any third person interested in a fair expression of opinion at the polls? He benefits no more than anyone else, including the employee. It certain*322ly does not indicate high morals on the part of a citizen to abstain from going to the polls unless somebody pays him, or unless he can do so without losing a small amount of wages. As a matter of fact, this employee, as most employees in this modern age of the eight hour day, had plenty of time either before going to work or after quitting time to cast his ballot without interrupting his service to his employer.
All good citizens should exercise the privilege of voting. It should be exercised voluntarily without any strings attached. He should desire on this day to be equal with all other citizens without any influence from any source except his own considered judgment of the candidates to be selected or the issues to be decided. If he receives pay for voting, he must feel a certain sense of obligation to the payor. It has always been the policy of a democracy to condemn the hiring of people to vote, to the end that the manner of marking their ballot would not be corruptly influenced.
It might be argued that it would be for “the general welfare” and foster more amicable relations between the employer and employee, if the statute is followed and the employer pays the employee. Such a feeling could be based only upon a sense of obligation which would restrict the free exercise of the right to vote according to one’s own lights.
But it is more likely that the employee, so paid, would not attribute this benefaction to his employer but the enforcement of the statute would transmute loyalty to the employer into gratitude to the legislature. In either event, the result would not be beneficial to the general welfare.
It will be noted that this statute does not apply to certain elections, it applies to all elections and the only requirement is that jt be an election in which the employee is “entitled to vote”. The solo object of the Corrupt Practice Acts of the various states and nation is to procure a free expression in the voting booth. The voter should go there voluntarily and in theory, at least, express his honest convictions on the candidates and issues. He should not go there as the hired hand of his master on the time that his master is compelled to pay for, in exercising his privileges as a citizen. To require his employer to pay him for voting or pay him for the absenting of himself from his job, so he may vote is, in my opinion, immoral in itself and at variance with this country’s policy of free and unhampered elections. The general welfare of the state will be best conserved if the voter exercises his right to vote on his own time uninfluenced by the feeling that he is an employee in his master’s service and on the payroll at the time he is doing that which he should only do as a citizen. This privilege should not be measured in dollars.
There are also cases which seem to hold that such statutes are justified as a valid exercise of police power. They are: People v. Ford Motor Co., 271 App. Div. 141, 63 N. Y. S. (2) 697. Kouff v. *323Bethlehem-Alameda Shipyard, Inc. (Cal. App.) 202 Pac. (2) 1059. Lee v. Ideal Roller & Mfg. Co., 92 N. Y. S. (2) 276. Ballarini v. Schlage Lock Co. (Cal.) 226 Pac. (2) 771.
The cases to, the contrary in my opinion are not as well reasoned and logical as the ones above referred to.
In People v. Ford Motor Co., 271 App. Div. 141, 63 N. Y. S. (2) 697, the Company was convicted and fined $100.00 on each of three counts for subjecting employees to a reduction of wages because of absence from work, while exercising the privilege of attending an election.
The majority opinion did not discuss the constitutionality of the statutes. It was discussed, however in a lengthy and well reasoned dissenting opinion by Lawrence, J., and at the close of that opinion, he said:
“So far as any case has been brought to my attention and so far as I have been able to discover, no court has decided that it is the right of any voter, under all circumstances, to be paid for the. privilege of voting. The statute here requires employers to pay their employees for two hours of time while exercising the right to vote, whether that is necessary or not and thus deprives them of their property without due process and denies them the equal protection of the law, in violation of both the federal and state constitutions. ’ ’
In Kouff v. Bethlehem-Alameda Shipyard, Inc. (Cal. App.) 202 Pac. (2) 1059, the question before the court was the legality of the discharge of an employee because he had taken off time to serve as an officer of election on election day. It was held that the statutory requirement was not unconstitutional. The court cited and discussed People v. Chicago, M. & St. Paul R. Co., supra and Illinois Central R. v. Commonwealth, supra and said:
“ It is interesting to note that both cases concede that that part of the statute requiring employer to allow time out to vote — 2 hours in Illinois and 4 in Kentucky — is a proper exercise of power. It was for a violation of the part requiring full pay that both railroads were prosecuted. Although those cases deal with time out for voting, while this deals with time out for election-board service, there is no essential difference between the statutory language in those cases and that of section 696, viz., ,‘nor shall any deduction be made from his usual salary or wages. ’. However, it is not necessary for us to express any opinion as to the constitutionality of the part of section 695 just quoted. It suffices to say that it is clearly separable from the dismissal provision. See 12 Cal. Jur. pp. 643, 644. If the state can prevent employers from discharging employees because they serve on election boards, it follows that the complaint states a cause of action for .unlawful discharge. ’ ’
*324In the case of Lee et al. v. Ideal Roller & Mfg. Co., 92 N. Y. S. (2) 726; the cause was tried in the municipal court, Scileppi, Justice, presiding. The facts in that case were dissimilar to the one here. In that case an employee had worked 38 hours in a week and ha%d been paid for 40 hours because of two hours off on election day. He was then called upon to work 4 more hours on Saturday after he had only worked 38 hours but .had been paid for 40. Under a Union contract for overtime above a 40 hour week, he was to receive time and one-half. He contended that the two hours for which he was paid and did not work'should be counted in the 40 hour week so he could get time and one-half for the full four hours worked on Saturday. His employer contended otherwise but Scileppi, Justice, held for the employee and rendered judgment against the defendant for the 4 hours worked on Saturday at overtime wages. No case is cited in the opinion as authority, no constitutional question was discussed and the only issue was whether -to count the two hours that were paid for that were not worked in the 40 hour week so the full four hours on Saturday,-would be paid at the overtime rate. In its opinion, Scileppi, Justice, said:
“It is conceded by the defendant that if the plaintiffs had actually worked eight hours on Election Day, with two additional hours off to vote, the plaintiffs would be entitled to two hours pay at overtime rate for that day.”
This case is therefore not in point here.
In Ballarini v. Schlage Lock Co., 226 Pac. (2) 771, the-Appellate Department, Superior Court, City and County of San Francisco, California was considering a .statute in all essentials the same as ours. This statute had been enacted in 1881 and until November, 1950 had never .been before the courts. It permitted every voter at every general, direct primary or presidential primary election to be absent from his employment for two consecutive hours between the time of opening and the time of closing the polls. It provided that he should not be liable to any penalty “nor shall any deduction be made on account of (any) such absence from his usual salary or wages.” This case never pretended to separate the two elements of the statute that is, the right to be absent and the right' to be paid. It merely stated that when persons enter into a contract, all material statutes affecting it are read into the contract by the law. That, in the abstract, is a-true statement but it has this excepion, that it does not apply to an unconstitutional statute or part of one. The court then held that this statute taken as a whole was a valid exercise of police power and became a part of every contract entered into between employer and employee after its enactment.
I am not much impressed with the argument of appellant about the loss of production. When it entered into its contract with the employee,'whether actually written into it or not, that contract included the provisions of all valid material statutes. 17 C. J. S. Contracts, *325Sec. 330. When it contracted with its employee, it knew that' on election days he was entitled to a leave of absence for four hours between the hours of opening and closing of the polls. In my judgment, that provision went into the contract, was a part of it, was a valid exercise of the police power and any loss occasioned by it because of the non-productivity of its plant was nothing about which it could complain. But to take money from the pocket of the employer whether it be $2.40 for an hour and one-half or the same sum multiplied by the number of- its employees, is taking the property of one segment of society and giving it to another without anything in return and this without considering the immoral aspect of paying an employee for exercising his privilege and duty to vote. That part of the statute was unconstitutional and did not become a binding part of the contract. People ex rel. v. Coler, 59 N. E. 716, 166 N. Y. 1, 82 Am. S. R. 605, 52 L. R. A. 814, Affirmed 67 N. Y. S. 701, 56 App. Div. 98. Cleveland v. Clements Bros. Const. Co., 65 N. E. 885, 67 Ohio St. 197, 93 Am. S. R. 670, 59 L. R. A. 755.
In the case written by the St. Louis Court of Appeals (State v. Day-Brite Lighting, Inc., 220 S. W. (2) 782) it was merely held, as to the matter now in question before this court, that the information charged an offense under the statute. It construed the statute as it found it, and did not pretend to pass (as indeed it could not) upon its constitutionality. I have no disagreement with its holding that the right for an employee to absent himself' from his employment, and the penalizing of an employer if he prevented him from the “exercise of such privilege,” is within the valid exercise of the police power of the state.
An employer is deprived of his property without due process of law and denied the equal protection of the laws if he' is compelled to pay wages during the absent period, where no service for the employer is performed and where the period of absence is. for the benefit and convenience .of the employee. Such a violation of an employer’s rights cannot be hallowed by the police power.
Conkling, Jconcurs.