Huntington v. Attrill (1892), 146 U.S. 657, 668-669, 13 S.Ct. 224, 228, 36 L.Ed. 1123, 1128. In Floyd v. DuBois Soap Co. (1942), 139 Ohio St. 520, 522-523, 23 O.O. 20, 21, 41 N.E.2d 393, 395, we adopted the definitional test set forth in Huntington, stating that "[t]he test whether a law is penal is whether the wrong sought to be redressed is a wrong to the public or a wrong to the individual."Floyd was reversed on other grounds by Floyd v. DuBois Soap Co. (1942), 317 U.S. 596, 63 S.Ct. 159, 87 L.Ed. 488.
It must be remembered that Section 206 [6] is a minimum wages Act, and 207 [7] is a maximum hours Act; that they are really two Acts combined in the same bill." In Floyd v. DuBois Soap Co., Ohio App., 38 N.E.2d 919, 921, the Court said: "Work for a greater number of hours is incompatible with that general welfare and must be discouraged by requiring the employer to pay at the higher rate for all time in excess of the maximum." Similarly in Fleming v. Carleton Screw Products Co., D.C., 37 F. Supp. 754, at page 758, the Court said: "[Section 7] does not purport to regulate wages but imposes a penalty on overtime work, regardless of what the rate of pay may be, thus making overtime work more costly to the employer and creating more employment by limiting the hours of labor.
{¶ 15} Finally, the Court of Appeals for Cuyahoga County in case No. 2004-0524, reasoned that the amount of damages of $250 set forth in R.C. 5301.36(C) was clearly penal rather than remedial because the statute also provides that the recovery of such damages "does not preclude or affect any other legal remedies that may be available to the mortgagor." However, such reasoning is clearly in error given our previous holdings that "`"[a] law is not penal merely because it imposes an extraordinary liability on a wrongdoer in favor of a person wronged, which is not limited to damages suffered by him."'" Rice v. CertainTeed Corp., 84 Ohio St.3d at 421, 704 N.E.2d 1217, quoting Cosgrove v. Williamsburg of Cincinnati Mgt. Co., Inc., 70 Ohio St.3d at 289, 638 N.E.2d 991 (Resnick, J., concurring), quoting Floyd v. DuBois Soap Co. (1942), 139 Ohio St. 520, 523, 23 O.O. 20, 41 N.E.2d 393. {¶ 16} Based on all of the foregoing, we hold that because R.C. 5301.36(C) provides that a mortgagor may sue for "damages," it is a remedial statute and is thus subject to the six-year limitations period of R.C. 2305.07.
"`[A] law is not penal merely because it imposes an extraordinary liability on a wrongdoer in favor of a person wronged, which is not limited to damages suffered by him.'" Id at 289, 638 N.E.2d at 997 (Resnick, J., concurring), quoting Floyd v. DuBois Soap Co. (1942), 139 Ohio St. 520, 523, 23 O.O. 20, 21, 41 N.E.2d 393, 395. CertainTeed contends "the unanimous Court in [ Ohio Civ. Rights Comm. v. Lysyj (1974), 38 Ohio St.2d 217, 67 O.O.2d 287, 313 N.E.2d 3] rejected a claim that punitive damages were available under [R.C.] 4112.05 (G), and did so in the face of [R.C.] 4112.08's `liberal construction' command."
This case was cited as authority and relied on by the Circuit Court for the Eastern District of Tennessee in City of Atlanta v. Chattanooga Foundry Pipe Co., 101 F. 900 which, as above indicated, was later appealed to this Court and the Supreme Court. In Floyd v. Du Bois Soap Co., 139 Ohio St. 520, 41 N.E.2d 393, 395, reversed on other grounds in 317 U.S. 596, 63 S.Ct. 159, 87 L.Ed. 488, the Supreme Court of Ohio, in a case involving the Fair Labor Standards Act of 1938 (Title 29 U.S.C.A. § 216[b]) had this to say about penal laws: "The test whether a law is penal is whether the wrong sought to be redressed is a wrong to the public or a wrong to the individual.
The recovery authorized by § 16(b) of the Fair Labor Standards Act does not constitute a penalty, but is considered compensation. Overnight Transportation Co. v. Missel, 316 U.S. 572, 583, 62 S.Ct. 1216, 86 L.Ed. 1682; Robertson v. Argus Hosiery Mills, 6 Cir., 121 F.2d 285; Floyd v. DuBois Soap Co., 139 Ohio St. 520, 41 N.E.2d 393, reversed on other grounds, 63 S.Ct. 159, 87 L.Ed. ___, decided November 9, 1942. The federal statute is premised upon the existence of an employment contract and double recovery is allowed as between the parties to the contract.
By its terms, this section is not applicable to liabilities fairly characterized as forfeitures or penalties. Whether a sanction or liability is penal in nature depends on whether the wrong results in injury to the public, or to the individual. Floyd v. DuBois Soap Co., 139 Ohio St. 520, 522-23, 41 N.E.2d 393, 395 (1942), citing Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123 (1892). If the injury is to the public, the liability is a penalty, as a penalty, strictly defined, is a penal sanction "inflicted by or in right of the public." Hawkins v. Furnace Co., 40 Ohio St. 507, 514 (1884).
As to the Belo case, the Supreme Court has stated "where the same type of guaranteed weekly wages were involved, we have reaffirmed that decision as a narrow precedent principally because of public reliance upon and congressionalacceptance of the rule there announced. (Italics supplied) Floyd v. Du-Bois Soap Co., 139 Ohio St. 520, 41 N.E.2d 393; Id., 317 U.S. 596, 63 S.Ct. 159, 87 L.Ed. 488; Overnight Motor Transportation Co. v. Missel, supra; Walling v. Youngerman-Reynolds Hardwood Co., supra; Walling v. Halliburton Oil Well Cementing Co., supra; Bay Ridge Operating Co., Inc., etc., supra; Walling v. Uhlmann Grain Co., 7 Cir., 151 F.2d 381. The extra half time for Sunday work over and above the usual time and a half rate for overtime has exactly the same standing as other premiums above the requirements of the Act which may not be regarded as "payment" of the overtime compensation paid for holidays not worked; compensation paid for a full day's work when only part of it is worked; compensation paid for special work; lump sum bonuses; vacation money, and supper money.
{¶ 17} At-will employment is contractual in nature. Floyd v. DuBois Soap Co. (1942), 139 Ohio St. 520, 530-531, 23 O.O. 20, 41 N.E.2d 393. In such a relationship, the employee agrees to perform work under the direction and control of the employer, and the employer agrees to pay the employee at an agreed rate.
The name given the exaction, it is true, may not always be controlling (70 CJS 389, Penalties § 1; St. Louis, I.M. S. Ry. Co. v. Walsh, 86 Ark. 147, 110 S.W. 222), but it sheds light on the legislative intent. Robertson v. Argus Hosiery Mills, Inc., 121 F.2d 285, 286 (CCA 6th); Floyd v. DuBois Soap Co., 139 Oh St 520, 41 N.E.2d 393, reversed on other grounds, 317 U.S. 596, 87 L ed 488, 63 S Ct 159; Denison v. Tocker, supra; Cox v. Lykes Brothers, supra. It is quite true, as counsel for the defendant contends, that a cause of action to recover a statutory penalty is not assignable. 6 CJS 1086, Assignments § 37. As stated in Wilson v. Shrader, 73 W. Va. 105, 112, 79 S.E. 1083, Ann Cas 1916D 886 (which arose on a claim for a penalty for mining coal within five feet of the land of an adjacent owner), "the reasons that preclude the assignability of mere personal rights, such as actions for slander, assault and battery and other pure torts, obviously apply here. Assignability of such claims encourages litigation and strife.