
    Smith v. Ohio Oil Company.
    [No. 6,371.
    Filed January 26, 1909.]
    From Wells Circuit Court; Edwin G. Vaughn, Judge.
    Action by S. Walter Smith against the Ohio Oil Company. From a judgment for defendant, plaintiff appeals.
    
      Affirmed.
    
    
      Eichhorn & Matlach, for appellant.
    
      Simmons é Dailey, for appellee.
   Watson, C. J.

This was an action by the appellant under §§7981, 7982 Burns 1908, Acts 1885, p. 36, §§1, 2, to recover $49 wages due him from appellee, and to recover the further sums of $92, statutory penalty, and $50 attorney’s fees.

The cause was put at issue and trial by the court had, which resulted in a finding and judgment for appellant for $49.

The errors assigned in this court are, (1) the sustaining of appellee’s motion to strike out parts of the complaint; (2) the overruling of appellant’s motion to modify the judgment.

The record discloses that the appellee, before trial, offered to confess judgment for $49, so the only question involved in this controversy is the statutory penalty and the attorney’s fees under §§7981, 7982, supra.

In the ease of the Toledo, etc., R. Co. v. Long (1907), 109 Ind. 310, the court hold §§79,81, 7982, supra, unconstitutional, upon the authority of Bedford, Quarries Co. v. Bough (1907), 168 Ind. 671, and cases there cited.

The judgment is therefore affirmed.  