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made a part of his contract, and he then renders himself liable, according to the opinion of the chairman of this committee, not only to the penal provisions of the eight-hour law of 1892, but to those additional penalties provided by this contemplated act. It is to be observed, Mr. Chairman, that there is a great difference of opinion between the law officer of the Government and the able chairman of this committee as to the application of this act. I understand, from the opinion expressed by Mr. Gardner in the course of some remarks to Mr. Davenport during a hearing on bill 4064, that it was his opinion that it did apply to the subject-matter of the eight-hour act of 1892, whereas it is the Solicitor's opinion, expressed in his conclusions to the head of the Department of Commerce and Labor, that this bill would not so apply.

Mr. DAVENPORT. You mean the eight-hour law of 1892?

Mr. EMERY. Yes. "Inasmuch as nothing in this act shall be construed to repeal chapter 352 of the laws of the Fifty-second Congress, approved August 1, 1892." Now, sir, when two such eminent gentlemen can differ so widely as to the application of this bill, what is the position of the contractor, or would it be the purpose of the committee to assist in increasing the patronage of the legal profession by saying to the contractor, "Inform himself more carefully and seek legal advice more constantly before assuming the risks necessarily involved in Government contracts under conditions fixed by this bill."

There are other phrases in the bill, Mr. Chairman, that are just as uncertain and just as vague. Take the term "mechanics" itself. While it might be said hastily and with seeming reason that there could be no question about what a "mechanic" was, let me say that the courts of the various States have found some difficulty in precisely defining the term; that in one case, in the Sixtieth Federal, United States v. Hoffman, it has been held that a merchant tailor was a mechanic within the meaning of the lien law. Under that interpretation any merchant tailor, although he employed workmen in the manufacture of his clothes, yet if he assisted, supervised, and occasionally used the tools of his trade in the course of daily work, would be a mechanic within the meaning of that act. The application of that to the manufacture of Government uniforms, the frequent and constant subject of contract between private individuals and the Government of the United States, might very well lead one to ask, Is it possible for a merchant tailor making uniforms for the Government of the United States, under one aspect of the act, to be a contractor, and under another aspect of the act to be prevented from working more than eight hours upon his own property, the subject of future delivery to the Government?

Again, in a case in the State of Kansas, a "civil engineer" is held to be within the meaning of the lien law of that State, to be a "mechanic" in the full sense of the term, and very naturally one would ask what the effect of this bill would then be in the shipbuilding and steel industries. Would the civil engineer, in the preparation of the drafts and plans required to prepare the specific chattels that were the subject of contract, be a mechanic, or would he not? Gentlemen, these questions are not questions easy of solution; they can not be guessed at without serious risk to the property rights of the contractors. Why should this committee undertake

to guess at these things when the Supreme Court of the United States has recently found it impossible to agree on a distinction between a seaman and a laborer in the case of the United States against Ellis. Five of the learned judges held that the eight-hour law did not apply to the men working upon dredges and scows in the improvement of Boston harbor, while three equally distinguished gentlemen, Mr. Justice Harlan, Mr. Justice Day, and Mr. Justice Moody, asserted that these men were laborers or mechanics within the meaning of that law; that they were mechanics and not seamen, inasmuch as they were doing mechanical work on a floating platform. So, some time ago, in the case of the United States v. Jefferson, in the Sixtieth Federal Reporter, the court held that a seaman engaged in removing obstructions from a harbor in the course of an improvement of a public waterway was a laborer within the meaning of the eight-hour law of 1892. So that there seems to be very considerable doubt as to the extension of the term "mechanic" itself, and when we come to the terms to which the Solicitor made his chief objection in the course of the opinion rendered to the Department of Commerce and Labor, still more serious doubts must necessarily arise as to the meaning of terms like "supplies."

As Judge Davenport very sharply pointed out in a former discussion, the contractors for a proposed battle ship offer to "supply" to the United States a battle ship; whether or not that would be a "supply" within the meaning of this bill is uncertain. If the term "supplies" be accepted in its widest sense, it would unquestionably repeal the former exceptions of the bill, inasmuch as it would "seriously contradict them." If "supplies" be confined to narrower limits, how shall they be defined in the absence of an arbitrary meaning?

Furthermore, there seems to be the utmost uncertainty as to the meaning of the term "other extraordinary events or condition," not covered by the terms "due to any emergency caused by fire, famine, or flood, by danger to life or to property. So that in those regards the law is still uncertain. These uncertainties were pointed out. They have not been cured in the bill by any amendment made to it, and when a law officer of the United States declares that a bill is of so vague a character, so uncertain in its application and terms as to demand verbal correction, is it to be assumed that this committee will recommend such a law for passage when they must themselves doubt its meaning? Surely it is not the intention of the committee to deliberately make it difficult for a contractor to do business with the Government of the United States, to be uncertain as to the risk which he assumes; not to know the meaning of the contract offered to him, but to take it, gambling in litigation.

Now, Mr. Chairman, I should approach with very considerable hesitation any discussion of the constitutionality of the bill if it were thought that I assumed to add anything to the strength of the argument made by the distinguished gentleman who preceded me, and who must have excited exceedingly grave doubts, at least, as to the constitutionality of the bill which, we must contend, Mr. Chairman, does attempt to impair the right of private contract in private employment.

It has been contended here, and I believe it was contended before the Senate committee, by the proponents of this measure, that with

regard to the stipulations required by this bill to be placed in contracts with the Government, that if the Government had the right to fix the conditions under which its work should be done, it had the right to demand that contracts fixing those conditions be entered into, but it was pointed out that there was a marked distinction between any attempt on the part of the Government to fix the hours of labor upon the public works of the United States, and any attempt upon the part of the United States to fix hours of labor in private employment. But before I proceed to that discussion let let me say that there can be no doubt in the minds of this committee as to what the purpose and intent of this bill is. Mr. Gompers stated before this committee on several occasions that it was his desire, through the instrumentality of the Government contract, to enforce an eight-hour day in all the industries of the United States. In response to a question asked by Judge Payson in 1902, and a similar question in 1904, Mr. Gompers made the intent and desire of the proponents of this legislation very clear by saying on the last

occasion:

We are endeavoring to secure the limitation of a day's work to eight hours. Where Government work enters into the operation of a plant, either in part or in whole, we expect that eight hours shall constitute a day's work by law and the limitation of a day's work.

Mr. PAYSON. That is what I wanted you to say.

Mr. GOMPERS. I am very glad, because I wanted to say it myself, and I want to emphasize it, if possible.

We have been asked how far does this bill go? How far do you want it to go? If we are candid, and we desire to be, as to how far, we would answer until it reached every man, woman, and child who works in the United States. And I trust that statement will be broad enough and comprehensive enough to satisfy the opponents of the bill.

That, then, is the purpose of this legislation as described by its proponents. Now, Mr. Gompers has confessed, also, at least, he declares in a statement made to this committee, that he was at a loss how to use the law in the effectuation of such policy, until it was suggested to him that if an eight-hour day in private employment could not be procured by penal statute, it could be gotten indirectly through the Government contract. So, then, it is frankly admitted that that which would be unconstitutional if attempted by direct statute, is desired and attempted by the proponents of this legislation through the stipulation of a contract. The proponents of this bill believed it would be impracticable to sustain two time systems in any plant; that operatives could not be worked nine or ten or eight and a half or nine and a half hours in one part of a factory on private work and eight hours upon the Government contracts in another part of the factory, so that an eight-hour system, without overtime privilege, would be compelled or Government work given up.

It has been intimated here that it is within the power of the Government of the United States to absolutely fix the terms of its contracts; that the State may arbitrarily stipulate with those who seek its work, they remaining at liberty to accept or reject its conditions.

Its right to regulate the hours of labor for its contractors or subcontractors was practically settled by the case of Adkin v. Kansas (191 U. S.). But I believe that a careful reading of that decision will not make more certain the intent of the court to distinguish very clearly and finally between the right of the Government to regulate

the hours of labor and the conditions of employment upon its public works and the right of the Government to directly or indirectly fix the conditions and hours of labor in private employment.

In constructing or improving the public works of the United States the contractor is working upon the property of the United States or upon that of which the Government of the United States has exclusive jurisdiction. In the case of Atkin v. Kansas the defendant in that action, which originated in the State courts of Kansas, was working upon a public boulevard, which was not a municipal but a State highway, and the State could have performed the work upon that highway itself if it wished to do so. Instead it gave to its agent, the municipality, through which the boulevard ran, the right to contract for its care, subject to the conditions of contract fixed by the State upon its public works. When the court proceeds to the discussion of that case, it sums up its opinion, finally, in italics, written by the hand of the court, to mark its own clearcut distinction. Asserting the constitutional right of the State to demand a contract of that character" for itself or for one of its municipal agencies." The contractor was there, working upon that which belonged to the State. It regulated conditions on its own property and in its own service. But under the terms of this bill the Government attempts to regulate, what? The conditions under which a chattel, the exclusive property of a private individual, his until completed, delivered, and accepted by the Government, shall be produced. It says, in this bill, that as to all matters not excepted by its provisions, the contractor and the subcontractor, indefinitely, shall not permit in any stage or process of the production of the subject-matter of the contract, the employment of any mechanic or laborer more than eight hours.

It restricts on the one hand the right of the contractor to purchase more than eight hours of labor upon that matter contemplated by the contract; it restricts the liberty of every single man who may offer his labor for sale to the contractor and makes it impossible for him to sell to him on that work more than eight hours of his service. He may have twenty-four hours of it to sell but he is actually inhibited in private employment from selling it the moment that the Government contract, not excepted by this bill, enters into the factory door of the contractor. The conditions of private employment may be nine or ten or eleven or twelve hours a day; they may be eight and one-half hours; the Government contract may be but an incident of the work of the contractor, but the moment that its subject-matter comes upon the floor of his factory, that moment the operative who touches it, like the contractor who undertakes it, is by operation of law stripped of existing contractual rights; the one may sell but eight hours of his labor, the other may buy no more.

It is said that this bill proposes to be merely directive; it is more than that, Mr. Chairman. As was said by the court in People ex rel., Rodgers et al. (166th New York), where a statute very similar to the proposed terms of this bill was under consideration by the court of appeals of the State of New York:

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.

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In Cleveland v. Construction Co. (67 Ohio State), which was drawn to the attention of this committee the other day, a statute almost exactly similar in its provisions to the bill here offered, substantially identical in fact, was held unconstitutional by the supreme court of the State of Ohio after mature consideration and in an exceedingly well considered opinion, for the reason that it did improperly, unduly, and without constitutional authority interfere with private contractual rights of the private employer and the private employee. The very distinction that we have sought to make as to the ruling in Adkin v. Kansas is made in that case, between the right of the State to fix the hours of labor and the conditions of contracts on its public works, and the right of the State to attempt to fix the conditions of private employment in the production of a chattel intended, if you please, to fulfill a contract made with the Government, but belonging exclusively to the contractor, until the moment that the finished article is delivered and accepted by the Government, and the important distinction in the Kansas case is especially employed in the case of in re Broad (436 Washington, 449), in which a contractor on public works, one James C. Broad, permitted a workman in his employ to work more than eight hours on certain public works of the city of Spokane, was arrested, and a writ of habeas corpus sued out, an attack being thus made upon the constitutionality of the eight-hour law there in question. There was here of course no attempt by the State to control private employment; it was a question as to whether or not the State had a right to fix the hours of labor upon its public works, and the court considering its case turned at once to Adkin v. Kansas and gave its judicial idea of what the Supreme Court of the United States had there decided, making the same distinction we seek to impress upon this committee.

Referring to the Atkin case, the Washington court says:

But the decision was based upon an entirely new theory of the law, namely, that it was a public work on which the contractor was engaged, and with reference to which he contracted; that the State, or the municipalities, through delegated powers from the State, had a right to do their work in any manner in which they saw fit, and that they had the same right to compel those with whom they contracted to perform the public work in the same manner, and that there was no question of violation of private right involved.

Mr. NICHOLLS. May I ask if the statute there required that contracts, when made, should require that only certain hours of labor be performed?

Mr. EMERY. The statute is here, Mr. Nicholls. The defendant here was charged with a violation of an ordinance of the city of Spokane:

Provided, That hereafter eight hours in any calendar day shall constitute a day's work on any work done for the city of Spokane, subject to the conditions hereinafter provided.

It goes on to fix the wages of labor, and then provides:

Any contractor, subcontractor, or agent of contractor, foreman, or employer, who shall violate the provisions of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in a sum not less than twenty-five dollars nor more than two hundred dollars, or by imprisonment in the city jail for a period of not less than ten days nor more than ninety days, or both such fine and imprisonment, at the discretion of the court.

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