occasion to examine the constitutions and rules of all the labor unions in this country, you will know that with a single exception, which I do not now recall, every one of them provides that their men may work overtime, and provides for the compensation they are to receive. If this bill becomes a law none of those persons working for any of the establishments having contracts for this work could avail themselves of their right; and is it so that a man is to be stricken down and deprived of the very capital, and the only capital, which he has, by the whim of some legislator at the demand of somebody who professes to act, as he claims, in behalf of those very people? I respectfully repudiate any such thing as that. I say you can go out among the working people and talk with them and ask them if they are in favor of a bill which will take away from them the right to work more than eight hours a day if they choose to, at a greater pay for the extra time, and they will always tell you "No, and any legislator who votes for such a bill is not voting in our interest."

But the people who claim to be the accredited representatives of what is called organized labor come here and advocate this bill. I really think, in my own mind, that they do not understand the practical effect of this bill, and that it strikes a blow at the dearest right of the workingman, whether he belongs to a union or not.

Mr. HASKINS. There is another object in this bill that you have not touched upon.

Mr. DAVENPORT. What is that?

Mr. HASKINS. The object is to create a larger day's labor.

Mr. DAVENPORT. Now, they will not stand one minute on that. You ask them whether they are in favor of this bill or in favor of that, and they say that it is not going to increase the cost to the Government, because the labor is going to be more efficient; if you cut a man down to eight hours he will do as much work as he will in ten hours. When the present act of 1892, or a similar bill, was pending before Congress in 1890, what was the argument then addressed to the House of Representatives by that eloquent man, Mr. McKinley? It is to be found in the report of Mr. McComas on the eight-hour law, December 20, 1902. He is quoting from Mr. McKinley. This is found in a Senate document, Calendar No. 2297, Fifty-seventh Congress, second session, report No. 2321. This is what Mr. McKinley said:

Now, Mr. Speaker, it must be remembered that when we constitute eight hours a day's work, instead of ten hours, every four days gives an additional day's work to some workingman who may not have any employment at all.

It is one more day's work, one more day's wages, one more opportunity for work and wages, an increased demand for labor. I am in favor of this bill as it is amended by the motion of the gentleman from Maryland [Mr. McComas].

But if you will examine the reports here of hearings of previous Congresses, you will find that that great representative of the hornyhanded sons of toil, Mr. Gompers, has always claimed that the shorter you make the hours the more efficient is the work, and that the same man is going to do more work in eight hours than in ten hours; but as I say, and as Mr. Haskins suggests, the plea that is put forth to the workingman to induce them to favor legislation of this kind is that there will be more days' work and more pay, more wages to the workingman. I plant myself, as representing the organization that I do, upon the principle that this bill is a direct attack upon the rights, the constitutional rights, of every workingman in this country, of every

employee in this country. It is a conceded and confessed attempt by indirection to do that which would be confessedly unconstitutional if attempted directly; and I can not understand how any representative of either party in the House of Representatives can take the position that an attack upon the individual right of the workingman, which cuts down his liberty to work overtime, is a measure to be supported. Mr. Davenport having concluded his remarks, the committee adjourned until to-morrow, Wednesday, February 19, 1908, at 2 o'clock p. m.

(The opinion in the case of The City of Cleveland v. The Clements Brothers Construction Company (67th Ohio State Reports), referred to by Mr. Davenport is as follows:)

CREW, J.

In this case the City of Cleveland, defendant in the court below, for answer to the claim made against it by plaintiff below, The Clements Brothers Construction Company, pleaded by way of justification, and as its only defense, the provisions of an act of the Ohio legislature, passed April 16, 1900, and entitled "An act to provide for limiting the hours of daily service of laborers, workmen, and mechanics employed upon public works, or of work done for the State of Ohio, or any political subdivision thereof; providing for the insertion of certain stipulations in contracts of public works; imposing penalties for violations of the provisions of this act, and providing for the enforcement thereof." The sufficiency of this answer, as a defense, was challenged by a demurrer filed thereto by plaintiff. Whether such answer was and is sufficient, and the matter so pleaded defensive, depends entirely upon whether said act of April 16, 1900, is a valid and constitutional enactment. The provisions of this law are as follows:

"SECTION 1. The service of all laborers, workmen, and mechanics employed upon any public works of, or work done for, the State of Ohio, or for any political subdivision thereof, whether said work is done by contract or otherwise, shall be, and is hereby, limited and restricted to eight hours in any one calendar day; and it shall be unlawful for any officer of the State, or of any political division thereof, or any person acting for or on behalf thereof, or any contractor or subcontractor for any part of any public works of, or work done for, such State, or political subdivision thereof, or any person, corporation, or association whose duty it shall be to employ or to direct and control the services of such laborers, workmen, or mechanics, or who has in fact the direction or control of the services of such laborers, workmen, or mechanics, to require or permit them, or any of them, to labor more than eight hours in any one calendar day, except in cases of extraordinary emergency caused by fire, flood, or danger to life and property, and except to work upon public, military, or naval works or defenses in time of war, and except in cases of employment of labor in agricultural pursuits. "SEC. 2. Each and every contract to which the State of Ohio, or any political subdivision thereof, is a party, and every contract made for or on behalf of the said State, or any subdivision thereof, which contract may involve the employment of laborers, workmen, or mechanics, shall contain a stipulation that no laborer, workman, or mechanic in the employ of the contractor, or any subcontractor doing or contracting to do any part of the work contemplated by the contract, shall be required or permitted to work more than eight hours in any one calendar day, except in cases of extraordinary emergency, caused by fire, flood, or danger to life or property, and except to work upon public, military or naval work, or defenses in time of war, and except in cases of employment of labor in agricultural pursuits, and each and every (such) contract shall stipulate a penalty for such violation of the stipulation directed by this act, of ten dollars per each laborer, workman, or mechanic, for each and every calendar day in which he shall labor more than eight hours, and the inspector or officer or person whose duty it shall be to see that the provisions of any such contract are complied with shall report to the proper officer of such State, or political subdivision thereof, all violations of the stipulation in this act provided for in each and every subcontract, and the amount of the penalties stipulated in any such contract shall be withheld by the officer or person whose duty it shall be to pay the moneys due under such contract, whether the violations for which such penalties were imposed by contractor, his agents or employees, or any subcontractor, his agents or employees, no person on behalf of the State of Ohio, or any political subdivision thereof shall rebate or permit any penalty imposed under such (any) stipulation herein provided for, unless upon a finding which he shall make up and certify that such penalty was

imposed by reason of an error of fact. Nothing in this act shall be construed to authorize the collection of said penalty from the State, or any political subdivision thereof. "SEC. 3. Any officer of the State of Ohio, or any political subdivision thereof, or any person acting for or on behalf thereof, who shall violate the provision of this act shall be deemed guilty of a misdemeanor, and shall be subject to a fine or imprisonment or both, at the discretion of the court, the fine not to exceed five hundred dollars, nor the imprisonment more than one year.

"SEC. 4. All acts and parts of acts inconsistent with this act, in so far as they are inconsistent, are hereby repealed.

SEC. 5. This act shall take effect and be in force from and after its passage." The court of common pleas held this law to be constitutional, and held that the answer of defendant, the city of Cleveland, constituted a good defense to the plaintiff's cause of action, and overruled the plaintiff's demurrer thereto and gave judgment for said city of Cleveland. This ruling and judgment of the court of common pleas was reversed by the circuit court of Cuyahoga County, on the sole ground that the court of common pleas erred in overruling the demurrer of plaintiff to said answer. And said circuit court proceeding to render the judgment that the court of common pleas should have rendered, held said law to be unconstitutional and sustained said demurrer to said answer. And said defendant not desiring to plead further, said circuit court rendered judgment in favor of plaintiff, The Clements Brothers' Construction Company, and against said city of Cleveland for the full amount claimed by plaintiff. If the law under consideration is constitutional, then this judgment of the circuit court is erroneous and should, in this proceeding, be reversed; but if, as found by the circuit court, such law is unconstitutional, then the judgment of said circuit court was right and should be affirmed. Whether such law is constitutional is the sole question presented by the record in this case.

While the particular statute here in question has not, prior to this time, been before this court for review, nor has the precise question here presented heretofore been decided by this court, yet we are not without pertinent authority and direct adjudication by the courts of last resort in other States, upon the question here involved, and this court has more than once been called upon to consider and determine the constitutionality of statutes which were somewhat analogous to the statute under consideration, in that they had for their purpose, or did in effect, limit and restrict the right of contract between employer and employee; and in every instance such statutes have been declared and held by this court to be unconstitutional.

Counsel for plaintiff in error in this case apparently do not question the correctness of these decisions, and in argument they concede that it is beyond the power of the legislature to control by legislative enactment the contracts which shall be made between employer and employee when those persons are individuals or corporate persons and the subject-matter of their contracts is not necessary to be regulated for police reasons. And such clearly is the established law of this and other States. But they contend that the statute here in question is not an attempt by the legislature of Ohio to restrict or interfere with the right of liberty to contract, but is only in the nature of a direction by a principal to his agent, and therefore within the legislative authority, and matter of concern to the principal and agent only. They argue that the several municipal governments of the State are not in themselves independent and sovereign, but are subdivisions of the General Government, created by it with enumerated powers, and with no powers except such as may be fairly drawn from their charters or creation. Hence, they contend that being mere subdivisions of the State, and deriving their powers from the State, such municipalities may be lawfully directed by the legislative will as to what contracts they may make and what provisions and stipulations their contracts shall contain; and that in the contract here in question, the city of Cleveland being a mere agency and instrument of the State, the State had the right by and through its legislature, to direct and require the city, as its agent and representative, to insert in this contract the stipulations and provisions therein found. The fallacy of this contention lies in the assumption that the compulsory authority of the legislature over municipal corporations is so absolute and arbitrary that it may dictate the specific terms upon which such municipality shall contract, and may prescribe what stipulations and conditions its contracts shall contain, although such contracts may, as in this case, relate only to matters of purely local improvement. This is a misapprehension of the legislative authority, for no such right or power has been delegated to, or is possessed by, the general assembly.

As said in 4 Hill (N. Y.), 114: "Under our system of Government the legislature is not supreme. It is only one of the organs of that absolute sovereignty which resides in the whole body of the people. Like other departments of the Government, it can only exercise such powers as have been delegated to it, and when it steps beyond that boundary its acts, like those of the most humble magistrate in the State who transcends his jurisdiction, are utterly void. Therefore, as the security of life, liberty, and

property lay at the foundation of the social compact, to say that the grant of legislative power includes the right to attack private property would be equivalent to saying that the people had delegated to their servants the power of defeating one of the great ends for which government was established, this end being the protection of the absolute right to life, liberty, and property."

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Again, counsel for plaintiff in error are mistaken in the assumption that the statute here under consideration is and should be regarded as a mere direction by the sovereign authority, the State of Ohio, to one of its agents, the city of Cleveland, that contracts made by said city in certain cases and for a certain character of work are to be made in a particular way. In the case of People ex rel. Rogers v. Coler (166 N. Y., 1), a statute distinguishable in no essential feature from the statute here under consideration was before the court of appeals of that State for review, its constitutionality having been challenged. O'Brien, judge in that case, in discussing the proposition we are now considering, speaking for the majority of the court, says: Nor is it entirely true that the statute is a mere direction by the sovereign authority to one of its own agencies to contract in certain cases in a particular way. It is all that, no doubt, and very much more, since it affects personal and municipal rights in many directions that are of vastly more importance than the mere form of a contract to perform municipal work. It is true enough that a city is an agency of the State to discharge some of the functions of government, but these terms do not adequately describe its true relation to the State or the people. A municipal officer directing a local improvement is not the agent of the State. He is the agent of the city, and the city alone is responsible for his negligence or misconduct. If the authorities in charge of the streets of a city are agents of the State, the city ought not to be held liable for their acts or omissions. The city is a corporation possessing all the powers of corporations generally and can not be deprived of its property without its consent or due process of law any more than a private corporation can, and since its revenues must be used for municipal purposes, it is difficult to see how the legislature can make contracts for it which involve the expenditure of these revenues without its consent." And further in the same opinion it is said: "The right which is conceded to every private individual and every private corporation in the State to make their own contracts and their own bargains is (by this statute) denied to cities and to contractors for city work; and, moreover, if the latter attempt to assert such right, the money earned on the contract is declared forfeited to the city without the intervention of any legal process or judicial decree. The contractor is a private individual engaged in private business. When he enters into a fair and honest contract for some municipal improvement, that contract is property entitled to the same protection as any other property. It is not competent for the legislature to deprive him of the benefit of this contract by imposing burdensome conditions with respect to the means of performance, or to regulate the rate of wages which he shall pay to his workmen or to withhold the contract price when such conditions are not complied with in the judgment of the city. When he is not left tree to select his own workmen upon such terms as he and they can fairly agree upon he is deprived of that liberty of action and right to accumulate property embraced within the guaranties of the Constitution, since his right to the free use of all his faculties in the pursuit of an honest vocation is so far abridged. The exercise of such a power is inconsistent with the principles of civil liberty, the preservation and enforcement of which was the main purpose in view when the Constitution was enacted. If the legislature has power to deprive cities and their contractors of the right to agree with their workmen upon rates of compensation (or the number of hours that shall constitute a day's labor), why has it not the same power with respect to all private persons and private corporations? That question can be answered in the language which this court used when a case with features somewhat similar was under consideration. Such legislation may invade one class of rights to-day and another to-morrow, and if it can be sanctioned under the Constitution while far removed, in time we will not be far away in practical statemenship from those ages when governmental prefects supervised the building of houses, the rearing of cattle, the sowing of seed, and the reaping of grain, and governmental ordinances regulated the movements and labor of artisans, the rate of wages, the price of food, the diet and clothing of the people, and a large range of other affairs long since in all civilized lands regarded as outside of governmental functions.'" As suggested by counsel for defendants in error, the statute here under consideration absolutely ignores the fact that municipal corporations in their property rights and their power to make contracts for local improvements for the benefit of their own citizens are entitled to the same immunities and are protected by the same constitutional guaranties which shield the property of individuals or private corporations from legislative aggression. In considering the rights and powers of municipal corporations in the case of Railroad Co. v. New Orleans (26 La. An., 481), the supreme court of Louisiana says: "A municipal corporation

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possesses two classes of powers and two classes of rights, public and private. In all that relates to one class it is merely the agent of the State and subject to its control. In the other it is the agent of the inhabitants of the place, the corporators, maintains the character and relations of individuals, and is not subject to the absolute control of the legislature, its creator."

In the case of Atkins v. Town of Randolph (31 Vt., 237), Judge Barrett, announcing the opinion of the supreme court of Vermont, states the proposition as follows: "It is true, as was urged in argument by the learned counsel for plaintiffs, that in some respects legislatures have power in respect to municipal corporations that they have not in respect to private corporations or individuals. They may alter or abolish municipal corporations at pleasure, but yet not so as to defeat the pecuniary rights of individuals as against such corporations or as depending upon their existence. The legislature has the same power in respect to private corporations when that power is reserved in the law creating them. So far as a municipal corporation is endowed by law with the power of contracting, and as such is made capable of acquiring, holding, and disposing of property and subject to the liabilities incident to the exercise of such power and capacity, thus being vested with legal rights as to property in contracts and improvements and subject to legal liabilities in respect thereof, to be ascertained and enforced by suit in the ordinary judicial forums with the same principles and by the same means as in the case of a private corporation, such municipal corporation must stand on the same ground of exemptions from legislative control and interference as a private corporation.

"As to third persons who seek to enforce pecuniary liabilities against towns arising upon contract, such towns are merely private corporations or individuals, and in this respect they are not affected by the purely municipal public and political features that appertain to their corporate existence in virtue, and in reference to which alone they are subject to the absolute control of legislation."

And to the same effect is the case of the Board of Park Commrs. v. Common Council of Detroit. (28 Mich., 228.)

This distinction as to the powers delegated to municipal corporations was clearly recognized and commented upon by this court in the case of Western College v. Cleveland. (12 Ohio St., 375.) In that case Judge Gholson, announcing the opinion of the court, at page 377, says: "It is the duty of the State government to secure to the citizens of the State the peaceful enjoyment of their property and its protection from wrongful and violent acts. For the proper discharge of this duty power is delegated in different modes. One of these is the establishment of municipal corporations. Powers and privileges are also conferred upon municipal corporations, to be exer. cised for the benefit of the individuals of whom such corporations are composed; and in connection with these powers and privileges duties are sometimes specifically imposed. It is obvious that there is a distinction between those powers delegated to municipal corporations to preserve the peace and protect persons and property, whether to be exercised by legislation or the appointment of proper officers, and those powers and privileges which are to be exercised for the improvement of the territory comprised within the limits of the corporation and its adaptation to the purposes of residence or business. As to the first, the municipal corporation represents the State, discharging duties incumbent on the State; as to the second, the municipal corporation represents the pecuniary and proprietary interests of individuals. As to the first, responsibility for acts done or omitted is governed by the same rule of responsibility which applied to like delegations of power; as to the second, the rules which govern the responsibility of individuals are properly applicable." See also Cincinnati v. Cameron (33 Ohio St., 366).

The liberal quotations, in this opinion, from the authorities above cited need no further apology upon our part than to say that if the principles there announced and the conclusions there reached are correct, and we believe they are and adopt them, they conclusively refute and answer the contention of plaintiff in error that the statute under consideration in this case does not restrict the right of liberty to contract and is in the nature only of a direction by a principal to its agent.

Again, stripped of its provisions, except so far as they relate to contractors and subcontractors, the first section of the statute under consideration reads as follows: "It shall be unlawful for any contractor or subcontractor for any part of the public works of, or work done for such State, or political subdivision thereof, or any person, corporation, or association whose duty it shall be to employ or to direct and control the services of such laborers, workmen, or mechanics, or who has in fact the direction or control of the services of such laborers, workmen, or mechanics, to require or permit them, or any of them, to labor more than eight hours in any one calendar day." Thus it is apparent that this statute, which is peremptory in terms, is more than a mere direction by a principal to an agent, and that its provisions apply not only to