
    COMMISSIONS DUE TO AN AGENT ARE NOT “LABOR” CLAIMS.
    Common Pleas Court of Montgomery County.
    Walter C. Lohman v. The Pioneer Products Co.
    Decided October 28, 1925.
    
      Preferences. Under the Labor Claims Statute — Limited to Those Based on “Labor Performed” — Which Means Manual or Toilsome Labor Requiring Little Skill.
    
    Commissions due a manufacturer’s agent are not entitled to preference under Section 8339, which provides that in the case ' "of an' insolvent employer claims due for labor performed within füree months of the appointment of a receiver or assignee shall . " be first paid out of the trust fund, in preference to all other -claims against such employer except claims for taxes and cost of administering the trust.
    Decision with respect to the claims set up in the intervening petition of McDermont.
   Snediker, J.

This case is before the court on the intervening petition of McDermont who' is a manufacturer’s agent living in Chicago and has his place of business there. For some years past he has in the course of said business received a number of • orders from the largest mail order houses in Chicago for the delivery of soaps manufactured by the Pioneer Products Company which is now in the hands of a receiver appointed by this court.

McDermont’s commission on all sales made by him and covered by these orders has been paid except five certain orders received and accepted by the Pioneer Products Company three months prior to the time it went into the hands of the receiver. The total unpaid to McDermont is $460.41. Of this he filed a proof of claim with the receiver, insisting that it be allowed as a preference. The receiver, did allow McDermont’s claim as a general creditor, but refused to allow it as a preferred claim. He now asks the court by his intervening petition to make the amount due him a preference. The section of the General Code which he relies upon is number 8339. This section was originally passed April 18, 1883, as a part of Section 3206-a of the Revised Statutes. The act which incorporated it included other provisions and was entitled “Supplementary to Section 3206 of the Revised Statutes of Ohio, providing a lien for laborers, miners, mechanics, and others, for their labors.” That part of Section 8339, which this petitioner insists especially applies to his claim, reads as follows: “In all cases when property of an employer is placed in the hands of an assignee, receiver, or trustee, claims due for labor performed within a period of three months prior to the time such assignee, receiver, or trustee is appointed, shall first be paid out of the trust fund, in preference to all other claims against such employer except the claims for taxes and cost of administering the trust.”

The real question presented is whether the work done by McDermont under his employment was “labor performed.” In order to determine what was meant by the Legislature in this expression, it is proper for us to have reference to the entire section under consideration, as well as the caption of the section which we have quoted and other sections with which it is associated in the Code. The language of the first sentence of Section 8339 is: “Laborers and employees of any persons, association of persons or corporation, whether such employment be at agriculture, mining, manufacture, or other manual labor, shall have a lien” and so forth. By the language so used it is not difficult for us to determine that “labor performed,” as used in the last sentence of this section, was intended to be such labor as was manual,' the words “other manual labor” relating back to all of the characters of employment to which the section refers. The same thing may be said with respect to the caption of the act, which is always consulted in determining the intention of the Legislature in making law, and we may also infer the same thing from the location of the section in the Code, as all associated sections have reference to a like employment so far as labor is concerned. It only remains for us to decide what manual labor is; and, as to this, we are not without authority; Judge Thurman, in the case of Bloom v. Richards, 2 O. S., page 387, in passing on what constitutes common labor, uses this language:

“A laborer is defined by Webster to be ‘one who labors in a toilsome occupation, a man who does work that requires little skill, as distinguished from an artisan.’ Now, by nothing short of the most strained and unreasonable construction, could the mere making of a contract be brought within either of the foregoing definitions. The idea of toil, of that which does or may produce weariness, is inseparable from the idea conveyed by the word labor, or, more strictly speaking, is included in the idea it conveys. But what toil, what weariness of the body or mind, is there is making half the contracts that are made? A meets B and says to him: T will give you fifty dollars for your horse.’ B replies, ‘Agreed.’ Here is a contract made in ten seconds and in ten words — but where is there any labor? C makes his promissory note, or bond, or due bill, to D; who would think of calling the transaction laborious? The word ‘labor’ is usually employed to signify manual exertion of a toilsome nature. This is its ordinary, popular, signification; the meaning that must be given to it, wherever it occurs in a statute, unless it is plainly used in a more enlarged or restricted sense.”

Another case which exhaustively discusses what constitutes labor is that of Moore v. Industrial Company, 138 N. C. Reports, page 304. In the decision the court say: manual exertion of a toilsome nature.’ Bloom v. Richards, 2 O. S. Rep., 387. In English statutes and in the construction placed upon them by the English courts this term is generally understood to designate a servant employed in some manual occupation. In Cook v. Tramway Co., 18 Q. B. Div., 684 in speaking of the definition of a laborer as used in the English Employers’ Liability Act, Smith, J., says: ‘The expression used, it should be noted, is not manual work, but manual labor.. Many occupations involve the former, but not the latter, for instance, telegraph clerks, bookkeepers and all persons engaged in writing.’ According to the findings of fact made by the court below in the case before us, the services rendered by the plaintiff consisted in superintending the conduct of the milling operations of the defendant company, conducting a commissary from which the hands were supplied, and keeping the books of the corporation. He did not work with his hands or perform any manual labor, having merely the control and direction of the employes of. the defendant company and the general management of its business. The word ‘laborer’ has a definite and fixed meaning in the Constitution and legislation of this state. In Article 4, Section 4, of the Constitution, it is provided that the General Assembly shall enact suitable legislation for the purpose of giving to mechanics and laborers an adequate lien on the subject matter of their labor, and in pursuance of this provision the mechanic’s and laborer’s lien law, chapter 41, of the Code, was enacted by the General Assembly. Words used in legislation which had a technical meaning are supposed to be used in that sense. Worcester defines a laborer to be one who labors; one regularly employed at some hard work. Webster defines a laborer to be one who labors in a tiresome occupation; one who does work that requires little skill, as distinguished from an artisan. In Georgia a laborer has been adjudicated to be one who performs manual labor. Adams v. Goodrich, 55 Ga., 335. To the same effect is Hebener v. Chave, 5 Pa. St., 117. These cases are cited and approved by this court in Whitaker v. Smith, 81 N. C., 340. See also Cook v. Ross, 117 N. C., 195. A bookkeeper is not a laborer and does not come within the act giving a laborer a lien for his services. Nash v. Southwick, 120 N. C., 459. A clerk or bookkeeper is not a laborer. Cole v. McNeil, 99 Ga., 250; Epps v. Epps, 17 Ill., 196. One who acted as general manager, superintendent, and bookkeeper and clerk is not a laborer. Wakefield v. Fargo, 90 N. Y, 214; Coffin, v. Reynolds, 37 N. Y., 640. There are innumerable cases in which the terms labor and laborer have been confined to such services as were rendered by manual labor. Holy Trinity Church v. U. S., 143 U. S., 464; Winder v. Caldwell, 14 How. (N. Y), 434; Parker v. Bell, 7 Gray (Mass.), 429; Brockway v. Innis, 39 Mich., 47; Wildner v. Ferguson, 42 Minn., 112; Farinholdt v. Lockhard, 90 Va., 938.”

“The word ‘labor’ in legal parlance has a well defined, understood, and accepted meaning. It implies continued exertion of the more onerous and inferior kind, usually and chiefly consisting in the protracted exertion of muscular force. ‘Labor may be business, but it is not necessarily so, and business is not always labor. In legal significance labor implies toil, exertion producing weariness;

Having consulted the exact provisions of the section of the Code before us as well as the other means of information to which we have called attention, and making application of the authorities we have quoted, we. find that this petitioner does not come within the provisions allowed by Section 8339 of the General Code. The prayer of his petition is therefore denied.  