Then the court referred to the State law which authorized the municipality to make such a provision, there being an explicit statute of the State of Washington on that subject contained in the laws of 1899. Mr. NICHOLLS. But deciding, did I understand you to say, that the firms contracting to do the work had the right to do it in any manner they saw fit? Mr. EMERY. Oh, no. This case decides that the contractor who had violated the eight-hour law-the eight-hour ordinance of the city of Spokane had committed a criminal offense in so doing and that it was within the power of the city to make an ordinance of that character and regulate employment upon the public works of the city of Spokane, in accordance with a power which the State had given it to so do, and I called it to the attention of the committee for the purpose of giving the distinction which the court made in that case between the regulation of employment on public works and any attempt on the part of the State or of the city to attempt. to regulate the conditions of private employment. In the following year in the case of Normile v. Thompson et al. (37 Washington) the city ordinance of the city of Seattle of the same character was again brought to the attention of the court and the court reaffirmed the opinion expressed in this case and pointed out the same clear distinction between the right of the State to regulate conditions of employment upon its public works and its right to attempt any regulation of the conditions of private employment, except in exercise of the police powers of the State, where there was a question of public safety, morals, or of public welfare. This bill, Mr. Chairman, if only in part, attempts to provide a stipulation in a contract by which a private contractor engaged in a private business, but undertaking to supply materials or articles desired by the Government not within the exceptions of the proposed bill, is required to guarantee, on behalf of himself and on behalf of all subcontractors, that no mechanic or laborer shall be required or permitted to work more than eight hours in any stage of the operation necessary to carry out that contract. Mr. HOLDER. What are you trying to convey there, the distinction between the one man working eight hours per day or the privilege of the contractor to use two men or three men during the twenty-four hours? Mr. EMERY. There is no question about the contractor, under the eight-hour law, using as many shifts as he pleases, providing he does not permit or require the same man to work more than eight hours. Mr. HOLDER. Yes; but one could draw from your remarks that this bill calls for a strict specification that only eight hours' work shall be done upon that work during twenty-four hours, regardless of the number of men employed. Mr. PAYSON. By any one man. Mr. EMERY. I am not attempting to presume such a conclusion, because there is nothing in the law to justify that. It simply prohibits any contractor from employing any one laborer or mechanic more than eight hours in any one calendar day on any work which is the subject-matter of a Government contract and not within the exceptions set out here—that is, he must stipulate that he will not so 32796-08- 4 do, and of course he is penalized if he or his subcontractor, indefinitely, like Dean Swift's fleas, violates that provision by permitting or requiring any man to work more than eight hours. Now, our contention is that the contractor upon the subject-matter of Government contracts, except upon the public works of the United States, is engaged in the production, in private employment, of a chattel which he is to deliver to the Government under conditions fixed by it, but it is his own personal, individual property up to the moment when that finished thing is delivered and accepted by the Government. On public works, in every stage of a man's work, he is working upon the property of the Government, upon something that belongs to the Government, of which it has exclusive control and jurisdiction. In the production of a chattel for Government consumption under private contract, the thing which he produces does not belong to the Government in any stage of its production, or even when it is finished, until the Government formerly accepts it. Mr. HOLDER. Has there been any claim that it does? Mr. EMERY. I am very glad to know that you do not dispute it. I am making that observation for the purpose of showing that under this bill what you are attempting to regulate is a private, not a public, contract the purchase and sale of labor by two parties, the capitalist and laborer, the employer and employee engaged in the production of an article to be delivered to the Government. A man undertakes to build a ship for the Government. He employs labor in so doing. Up to the very moment when that ship is delivered to the Government and accepted by it, it belongs to the shipbuilder, the individual firm or corporation undertaking the construction of that ship. Under the provisions of this bill, if a battle ship is not a supply and therefore exempted here, the Government requires as a condition of the contract that the contractor shall neither require nor permit anyone to work more than eight hours in one day on that work, and that he shall guarantee indefinitely, with regard to subcontractors, that in everything that goes into that ship which is not subject to the exemptions of this bill no man shall work more than eight hours, no overtime being permitted. Now, gentlemen, I submit to the committee, is not that a direct attempt to regulate the conditions of private employment and private contract with regard to the production of an article intended for Government consumption? And if it is, then it is an improper, inexcusable, indefensible, and unconstitutional interference with the right of private contract; for, as the Supreme Court said, I believe by Justice Brown in the Utah eight-hour case, "between living persons, there is no possible way by which property can be acquired except by contract;" and it has been held, and held repeatedly, that not merely is a contract property, but the right to make a contract is a property right, and the law aims fundamentally at the fullest protection to that right. Nor has the State any right whatever to interfere with it, except where public welfare demands, or where, in the exercise of that indefinable thing, the police power of the State, it is necessary to condition that contract. But is any claim made here that it is unhealthy or unsafe for a man to work more than eight hours on a Government contract; that the same thing, when made for the Government, threatens the worker's health, but requires no regulation when made for private individuals? Is this committee willing to say such a prohibition placed upon the private contractual right can be defended on the ground that it is a reasonable exercise of the police power of the State? The police power of the National Government is not indefinite; at least, it is not unlimited. The legislature has not the power to do anything it pleases under the color of the police power. It can not use it at will as a legislative mask. One of our great justices has said the police power is a somewhat indefinable thing in the abstract, and that we are more sure of its source and its beginning than we are of its end and its limitation; and, so far, the courts have satisfied themselves with saying whether a particular legislative action was the proper exercise of the police power or not, but they have pointed out, from the lower courts to the Supreme Court of the United States constantly, that the police power of the Government was not something to be juggled with; it was not something that could be put on and off to excuse any kind of legislation under specious appearances. For where there is not reasonable ground to defend, explain, and vindicate the exercise of such police power, trespassing upon the property or personal rights of the individual, it will be immediately questioned by the courts. Mr. NICHOLLS. Would you not consider the Government in this case to be a party to the contract? Mr. EMERY. Yes, sir. Mr. NICHOLLS. And would it not have the same rights as any individual to specify the terms under which it would agree to make a contract? Mr. EMERY. Of course; the Government has two powers; one as a contractor and the other as a lawmaker. The fact that it makes contracts does not prevent it from making laws to govern contracts. Mr. NICHOLLS. In this case, the contract in main, we will say, has not the Government the right, and is it not the same right, in all equity, that an individual citizen has, to specify the terms in the contract before agreeing to it; and would that be, where the specifications were that the laborer in that contract should not work more than eight hours a day for any individual, in your opinion, unconstitutional? Would it prevent him, in that particular case, from specifying that as one of the terms of the contract? Mr. DAVENPORT. That is the exact point here. Mr. EMERY. Of course no individual has a right to make any contract he pleases; the law does not permit him. No man can make any contract he pleases with anybody else where it is against public policy. Mr. NICHOLLS. But, as a general question, you said, or agreed, thạt the Government has a right, as a contractor in the case, to place in the contract, provided the other party agrees, any specification it deems fit. Mr. EMERY. You mean, then, the power of the Government to stipulate in a contract is unlimited? Mr. NICHOLLS. I would say, provided the citizen who makes the contract with it agrees to those terms, when there is no compulsion. Mr. EMERY. Now, the Government, Mr. Nicholls, is simply the agent of the people. It is divided into three general divisions; we have our executive, legislative, and judicial functions of government, and they derive their powers from the people, and they are limited powers, and they only have such powers as the people grant to them. I will put it to you in that way. Mr. NICHOLLS. Pardon me, so that I may make myself clear. What I am asking you in this case is, under the powers conferred already upon the Government by the people and written in its Constitution and its laws, is not the Government at liberty to proceed to make a contract with a manufacturer that he may furnish certain materials under certain specifications, and that those who work upon the material shall not work more than eight hours per day. Do you agree that the Government now has that power or not? Mr. EMERY. I say the Government has the power to fix the hours of labor where it attempts to make a contract on its own public works, but where the Government attempts to fix the conditions of contracts by requiring the stipulation which, improperly or illegally or unconstitutionally affects the property rights or personal liberty of the private citizen, it can not exact such a contract from him, because if it had that power, inasmuch as this Government is constituted for the protection of the personal and property rights of its citizens, it would have conferred upon it, by the people who organized to obtain those things, the power to destroy them. Its limitations of activity are of such a nature that obviously it can not act to destroy those very things which it was created or originated to defend, and our contention is, then, that the attempt to compel such stipulations as these is an infringement, a trespass, an unconstitutional attempt to destroy, or impair, or inhibit the contractual right of private citizens. Mr. NICHOLLS. To prevent the right of private contract. Mr. EMERY. To prevent the right of private contract, and that that is done under the color of a Government contract, and the effect of it is to fix the conditions of private contracts, not the contract with the Government, because the man who is making the thing for the benefit of the Government is a private contractor engaged in private business, and is free at the present time to make any contract that is not against public policy. He can refuse to make a Government contract, and while, you may say, he has the right to make that contract or leave it alone, you have put terms in that contract which you have no right to exact of him as a citizen, and that is exactly what the court said in the City of Cleveland v. the Construction Company, where that very objection was made. They said: 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. Mr. NICHOLLS. But you would not say that were this bill enacted into a law it would compel any person to do anything except through his own choice, would you? Mr. EMERY. Yes, but the law does not desire a man even to voluntarily be deprived of his rights; that is exactly what is aimed at here. You apparently proceed under the idea that the Government as a contractor can make a contract which a private individual could not make. Mr. NICHOLLS. Yes, and that under that assumption that would prevent one citizen from having the same privileges as other citizens under that same law; that was my theory, and under this law I wanted to find out whether this did or did not give the same rights to all the citizens to bid and agree with the Government upon certain terms as it did to any particular citizens. Mr. EMERY. The contention that you have made has been put in another way by saying what I referred to some time ago, the fact that it was contended that such stipulations as those required in a bill of this character are merely directory, as in the case where a State directs the municipality to make only contracts of such a form, or as in this case the Government of the United States directs its servants and officers to make contracts only under the form fixed by this bill, and it was said in the Ohio case by those who attempted to support such a bill, that it was "more than a mere direction by it a principal to an agent, and that its provisions apply not only to 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." That is exactly your contention, that all citizens are on an equality in making a government contract under these conditions. The opinion continues: 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. That is, the employer and the employee in the present case who do joint work in the production of the subject-matter of the 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. Mr. DAVENPORT. Right there, let me remind you that the Supreme Court of the United States, in declaring unconstitutional the law of the State of New York in regard to the bakers, said that calling it a police regulation did not make it one, and that the matter was in that regard clearly beyond the power of the State to prohibit a man working in a bakery more than ten hours in day. Mr. NICHOLLS. But was not that entirely a private business? Mr. NICHOLLS. That case was different from these public works that this bill is supposed to cover. Mr. HAYDEN. This is not limited to public works. |