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officers and agents of the State of Ohio, but that they apply with equal force to all persons who would enter into contracts with the State or any of its political subdivisions, and undertakes to limit and restrict such persons in their right to contract by prohibiting the making of contracts for day's work of more than eight hours. What the terms and stipulations of a contract shall be is matter to be determined by the contracting parties, and the right has not been delegated to, nor is it within the power of the general assembly, by mandatory laws to prescribe the terms and provisions that shall be inserted in contracts that may be made between persons legally competent to contract. Doubtless the legislature might, in the absence of contract between the parties, prescribe the number of hours' labor that should constitute a day's work, but it is not in the power of the legislature, by the enactment of a positive law, to abridge the right of parties to fix by contract the number of hours that shall constitute a day's work, nor to deny effect to the stipulations and agreements of the parties themselves touching such matter, except only as the exercise of such power may be authorized for the common welfare; and the right to so exercise this power of restraint extends only to matters affecting the public welfare or the health, safety, and morals of the community. The number of hours' labor that shall be performed in a day is an important factor and constitutes an essential part of every contract of service, and to deny effect to the stipulations or agreements between employer and employee touching the number of hours the employee shall labor each day is in effect either to impair the obligation of their contract or to deny to them the right to stipulate or contract touching that matter. The latter is the right denied by the statute here in question.

It is, we take it, axiomatic, that in service contracts the right to contract necessarily includes the right to fix by agreement the number of hours that shall constitute a day's work for the person employed, but by the terms and provisions of this statute the parties are not left free to negotiate respecting this matter between themselves, but the number of hours which shall constitute a legal day's work for the laborer employed on work done for the municipality is, by this statute, arbitrarily fixed and determined; and the statute further provides just what stipulations in this respect shall by the contracting parties be incorporated in their contract, and enacts that noncompliance with the provisions of said statute shall be deemed a misdemeanor, punishable by fine or imprisonment, or both, at the discretion of the court. The privilege of making and entering into contracts is more than a mere license or liberty. It is a property right. It is an essential incident to the acquisition and protection of property, and is such right as the legislature may not arbitrarily and without sufficient cause either abridge or take away.

In the case of Palmer & Crawford v. Tingle, decided by this court and reported in Fifty-fifth Ohio Statutes, page 423, the second clause of the syllabus is as follows: "Liberty to acquire property by contract can be restrained by the general assembly only so far as such restraint is for the common welfare and equal protection and benefit of the people, and such restraining statute must be of such a character that a court may see that it is for such general welfare, protection, and benefit. The judgment of the general assembly in such cases is not conclusive."

There is one other claim of counsel for plaintiff in error upon which they seem to place some reliance that should perhaps be briefly noticed, and that is as to the matter of estoppel on the part of defendant in error. Counsel for plaintiff in error say in their brief: "It is plain that the municipality itself can not complain, for, as has been shown above, it is merely an agency of a higher power, to wit, the State, and can only contract as it is authorized by that power to do; nor can the contractor be heard to complain, for the city, in pursuance of its granted powers and under restrictions imposed by the act in question, in effect said to him and all others, when it invited bids for the performance of the work, The statute is one of the conditions which must be complied with and an obligation which must be assumed by the contracting party.' "The contracting party (The Clements Brothers Construction Company) was not compelled to bid; it did so voluntarily, with full knowledge, and when awarded the contract executed it voluntarily, knowing all of its provisions, and assumed the obligations and conditions imposed by the statute.”

It would, perhaps, be a sufficient answer to this claim of plaintiff in error to say that the stipulation referred to became a part of the contract not because of any voluntary agreement between the parties that it should be inserted therein, but because the statute forcibly injected it. And that such is the fact we think sufficiently appears from the language of the contract which immediately follows such stipulation. That language is: "The foregoing stipulation is made by reason of and to conform to the requirements of an act of the general assembly of the State of Ohio, 'to provide for limiting the hours of daily service of the laborers, workmen, and mechanics employed upon public works, or of work done for the State of Ohio or for any political

subdivision thereof, providing for the insertion of certain stipulations to any contracts of public works,' etc., passed April 16, 1900, to the extent that the provisions of said act are applicable in the performance of this contract."

But further upon this proposition, as especially pertinent, we quote again from the opinion of Justice O'Brien in the case of People ex rel. Rogers, above cited. He says: The fact that certain provisions of the labor law were actually incorporated into the contract signed by the contractor can not change or add anything to the strength of the position assumed by the city. The relator is not estopped by the agreement when there is no element of estoppel in the case, and the question is with respect to the validity of the statute, and not the construction or effect of the contract in that regard. If the law is valid, it governs the contract and the rights of the parties, whether actually incorporated into writing or not, since all contracts are assumed to be made with a view to existing laws on the subject. If it is not valid, the contractor has not made it so by stipulating in writing to obey it and prescribing the penalty for his own disobedience, which is the forfeiture of all rights under the agreement. It is not in the power of the legislature to protect an invalid law from judicial scrutiny by providing that it must receive the assent of the parties to every contract to which it relates. * * * Courts in such cases are not bound by mere forms, but must look at the substance of things, and so viewing this transaction, it would be idle to attempt to deceive ourselves with the idea that the question involved in this appeal arises out of the stipulations of the parties to the contract, or is governed by them, rather than the provisions of a statute. The contract is in the form that we find it, not because the parties so elected to contract, but for the reason that the statute would not permit them to contract in any other way."

As to the further claim of plaintiff in error that "Even if the provisions of the statute were not actually inserted therein, they would be read into the contract as a part of the law of the State," for answer we need only refer to the third paragraph of the syllabus of Palmer and Crawford v. Tingle (55 Ohio St., 433), which syllabus is as follows: "While a valid statute regulating contracts is, by its own force, read into, and made a part of such contracts, it is otherwise as to invalid statutes.”

As bearing more or less directly upon the questions herein considered, in addition to the authorities above cited, the following cases will be found instructive: State v. Loomis, 115 Mo., 307; Godcharles v. Wigeman, 113 Pa. St., 431; Ex Parte Kuback, 85 Cal., 274; State v. Goodwill, 33 W. Va., 179; Commonwealth v. Perry, 155 Mass., 117; Low v. Rees Printing Co., 41 Nebr., 127; People v. Gillson, 109 N. Y., 389; In re House bill No. 203, 21 Colo., 27; Ib., 21 Colo., 29; State of Ohio v. Lake Erie Iron Co., reported in Thirty-third Law Bulletin, page 6, and affirmed by this court (51 Ohio St., 632); Marsh et al. v. Poston & Co., reported in Thirty-fifth Law Bulletin, page 327, affirmed by this court in Fifty-fourth Ohio Statutes, 681. The Wheeling Bridge and Terminal Co. v. Gilmore, 4 Circ. Dec., 366; 8 C. C. R., 658. Our conclusion in this case is, that the statute relied upon and pleaded by plaintiff in error, as a defense to the claim of defendant in error, is unconstitutional, because in conflict with sections 1 and 19 of the bill of rights. And therefore such statute cannot avail the city as a defense to shield it from liability to defendant in error for the amount due said defendant in error under its contract. The circuit court was right in sustaining the demurrer to the answer and in rendering judgment against the city, and that judgment is therefore affirmed.

Burket, C. J., Spear, Davis, Shauck, and Price, JJ., concur.

The provisions of section 1 and section 19 of Article I of the constitution of Ohio of 1851, referred to in Cleveland v. Construction Company, are as follows:

SEC. 1. All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety. SEC. 19. Private property shall be held inviolate, but observed to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure, or for the purpose of making or repairing roads, which shall be open to the public without charge, a compensation shall be made to the owner, in money, and in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury without deduction for benefits to any property of the owner.

WEDNESDAY, February 19, 1908. The committee met at 2 o'clock p. m., Hon. John J. Gardner (chairman) in the chair.

STATEMENT OF MR. JAMES A. EMERY.

Mr. EMERY. Mr. Chairman, I represent the National Association of Manufacturers, and some few hundred local organizations and State organizations of manufacturers and business men, which list I will supply to the clerk of the committee. I did not desire to intrude upon the indulgence of the committee at this time with such suggestions as I desire personally to make as representing these interests upon the proposed bill. I desire to reserve what I have to say at least until to-morrow, on account of some material I am waiting for, but I desire at this time to express to the committee on behalf of a large number of the largest manufacturing interests in the country their desire to submit evidence to this committee during the course of these hearings with respect to the practical effect upon their individual businesses of the proposed stipulations in the contract offered under this proposed bill. I desire to submit remarks upon the intent. and purpose of the proposed bill and upon the means by which you endeavor to carry out that intent. In the course of the evidence that I desire to offer to this committee, I wish to endeavor to impress upon the committee, with your kindness, as forcibly as I can, the practical effect upon the business men who contract with the Government of such stipulations as are required by this bill, not only with the stipulations read in the sense in which we can ordinarily accept them without debate over the technical meaning of some of the phrases, but taking a common-sense understanding of them, drawn from the experience of gentlemen who have had Government contracts during a long period of years. We wish to offer to the committee the practical difficulties that appear to a business man in endeavoring to comply with the requirements of such a statute if it became a law, who would be compelled to do so in order to do business with the Government, and I think we can show to you that it is the consensus of opinion upon the part of by far the largest number of business men who deal with the Government in a contractural way, that it will be practically impossible for these men to do so under the conditions fixed by the proposed bill. In accordance with a desire to offer that line of testimony, Mr. Chairman, if you will permit me, I should like first of all to present to you a resident of the District of Columbia, Mr. Richardson, of the Building Trade Employers' Association of the District of Columbia, a very large contractor who has had an experience of over fifteen years in Government contract work, and he can present to you those special difficulties that are apprehended by the builder in his relations with the Government under this proposed bill.

STATEMENT OF MR. JOSEPH RICHARDSON, OF WASHINGTON, D. C.

Mr. RICHARDSON. Mr. Chairman, I might say that in our experience with Government contracts, principally in the post-office line, that were this bill to go into effect, it would prevent us from entering into competition at the present time; it would be impossible for us to

enter into a contract for a Government building under the present conditions, or until such time as this law, if it went into effect, had affected the particular branches of the building business, the parts that go to make up the building, such as stone, steel, wood, and so forth. I know of no quarries or steel companies at the present time, or mills, that could comply with a law of this kind. It might, in time, bring them all into position where they could comply with it, but at the present time it would be utterly impossible, and it would be suicidal for a contractor who did not control every branch of the component parts of the building that he might be going to erect, to enter into a contract with the Government if this law was in effect, because he could not get subcontractors who could comply with the law, and as we understand the law, it applies not only to the contractor, but the subcontractor and his subcontractor, and so on down the line. So that we would be tied to contractors for material who could not comply with the conditions of this proposed bill.

It would have the effect, in my opinion, of sending Government contracts, at least in the building line, begging.

The CHAIRMAN. How would this bill affect you differently from existing law, the law of 1892, in your opinion?

Mr. RICHARDSON. The existing law applies to the building that you are actually working on and to the building itself, whereas, as I understand the present law, or the proposed law, it applies to the material man, who takes the contract to furnish material for that building, such as the granite man or the marble man or the man who furnishes the electrical apparatus or the steel man or the man who furnishes the woodwork, or any man who furnishes anything that goes into that building, the different parts of it. I understand the bill applies to each and every one of those subcontractors, and I know of none with whom we have been dealing in the last fifteen years who could comply with the law, and if they did take a contract where this law was in force, it would simply push them out of the market on everything else, because they would be out of competition, because in all of those branches the hours are greater than provided for in the bill; and the mechanic invariably works overtime, gets extra pay for it, and in a great many cases it is necessary-almost necessary for them to work overtime in order to make their ends meet. The wages, I should say, in 50 per cent of the branches that go to make up a building are such that it is necessary for the man to take every opportunity that he can get, and he does take it, to make extra time; and I presume if his hours were cut down, it would naturally bring down his wages along with them. So that as I understand the bill, it would be practically impossible for a general contractor now, particularly in the building line, to enter into a contract with the Government to furnish or complete a building under the conditions of the proposed law.

Mr. RAINEY. Because he could not get labor; is that the reason? He could not find men who would be willing to work for eight hours a day?

Mr. RICHARDSON. No, not particularly that; he would find a great many men who would prefer not to accept the eight-hour condition. Mr. RAINEY. Would not all subcontractors bid with reference to the condition you now mention, to wit, that they would be expected to keep their men at work only eight hours a day?

Mr. RICHARDSON. No, sir; I think that more than 50 per cent, I would say 75 per cent, of the contractors who furnish material such as I have stated and such as we know goes into a building, would refuse absolutely to compete on such work.

Mr. RAINEY. Why?

Mr. RICHARDSON. Because they can only then bid in such lines, with such people, as confine themselves exclusively to Government work. You take a quarry, for instance, that must work only eight hours, and if they have a Government contract, that means that they must work eight hours, not only on the Government contract, but on anything else they may have. That drives them out of the competition with the quarry alongside of them which is working nine hours, or a quarry that can work longer hours and complete the work quicker and get more out of the capital invested in their plant. You see, a man who is confined to eight hours on a Government job is confined to eight hours on everything he does, because if he works nine hours on any other work his men would immediately leave him.

Mr. RAINEY. So that the tendency, you think, would be to establish a universal eight-hour day?

Mr. RICHARDSON. This bill, as I understand it, would establish a universal eight-hour day in the United States.

Mr. RAINEY. And that is the situation you object to?

Mr. RICHARDSON. I would object to such a prospect as that, because I do not think it would be healthy.

Mr. RAINEY. Objecting on behalf of the men who would be called upon to work eight hours, or on behalf of the contractors who employ them?

Mr. RICHARDSON. I think, in a general way, a general eight-hour day in the United States would drive a great deal of business to foreign countries; a great deal of our manufactured goods would have to go somewhere else, necessarily.

Mr. RAINEY. But the particular industry you mention, getting out granite for building; that could not be driven to foreign countries? Mr. RICHARDSON. Not very well.

Mr. RAINEY. And you are speaking for that industry particularly? Mr. RICHARDSON. No, not particularly; anything that goes to make up a part of the building. You take the electric motors, electrical appliances, and other things.

Mr. RAINEY. Do you know how many hours a day men are required to work now in great German factories?

Mr. RICHARDSON. No; I can not say that I am very well posted on that.

Mr. RAINEY. Then, if they are only required to work eight hours a day, and if Germany is competing with us successfully in the markets of the world, that would be an argument against your position, would it not?

Mr. RICHARDSON. No, sir; I would not think so, because the wages would have something to do with it. They might work for half there what our men would work for here and be able to live on half what our men could here.

Mr. HASKINS. Your position is just this: You have a contract for putting up a public building here in Washington, or in New York or Philadelphia, and you want to furnish marble or granite or steel, and

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