true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.

Still, again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength, and this control in various forms, with diminishing intensity, has continued to the present. As minors, though not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved. Education was long denied her, and while now the doors of the schoolroom are opened and her opportunities for acquiring knowledge are great, yet even with that and the consequent increase of capacity for business affairs it is still true that in the struggle for subsistence she is not an equal competitor with her brother. Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right. Doubtless there are individual exceptions, and there are many respects in which she has an advantage over him; but looking at it from the viewpoint of the effort to maintain an independent position in life, she is not upon an equality. Differentiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men and could not be sustained. It is impossible to close one's eyes to the fact that she still looks to her brother and depends upon him. Even though all restrictions on political and contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection; that her physical structure and a proper discharge of her maternal functions having in view not merely her own health, but the well-being of the race— justify legislation to protect her from the greed as well as the passion of man. limitations which this statute place upon her contractual powers, upon her right to agree with her employer as to the time she shall-labor, are not imposed solely for her benefit, but also largely for the benefit of all. Many words can not make this plainer. The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done standing, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation and upholds that which is designed to compensate for some of the burdens which rest upon her.

The

We have not referred in this discussion to the denial of the elective franchise in the State of Oregon, for while that may disclose a lack of political equality in all things with her brother, that is not of itself decisive. The reason runs deeper, and rests in the inherent difference between the two sexes, and in the different functions in life which they perform.

For these reasons, and without questioning in any respect the decision in Lochner . New York, we are of the opinion that it can not be adjudged that the act in question is in conflict with the Federal Constitution.

For that reason that particular law was held to be valid; but see how carefully the Supreme Court noted the distinction between a law which had a definíte object, the preservation of the public health, and one which involves a mere arbitrary interference by the Government with conditions generally prevailing.

(Thereupon, at 4.30 o'clock p. m., the committee adjourned until to-morrow, Wednesday, March 11, 1908, at 10.30 o'clock a. m.)

WEDNESDAY, March 11, 1908. The committee met at 10.30 o'clock a. m., Hon. John J. Gardner (chairman) presiding.

ARGUMENT OF MR. JAMES H. HAYDEN Continued.

Mr. HAYDEN. Mr. Chairman and gentlemen, departing from the branch of my argument I was pursuing when we adjourned, I shall revert to a question raised by a member of the committee; that is to say, whether the relationship existing between the Government and one who has entered into a contract with it, for the delivery of chattels, is in any respect different from the relationship existing between individuals who have made a similar contract. My contention is that the relationship is precisely the same. The Government as a contractor acquires no proprietary rights in the material while in course of production. Prior to delivery and acceptance it acquires no rights whatever in the contractor's plant, and is not concerned in the manner in which he operates it. The Government's right is simply to require the delivery of the chattels contracted for, in due course. interesting opinion was rendered by the Attorney-General in 1906. The question was whether the eight-hour law of 1892 applied to contracts for the delivery of chattels, and whether therein the Government acquired a proprietary interest in the plant of the contractor, or proprietary rights in any material in course of manufacture in his works, which might be destined to be delivered to the Government on its completion. It could be argued with great force, and I think successfully that if title to the material passed to the Government while in course of manufacture, work done upon it would be public work. But the title does not pass prior to delivery and acceptance. Such was the ruling of the Supreme Court in the case of Clarkson v. Stevens, which I cited to you, and that authority was followed, by the Attorney-General in this opinion which I will read:

The SECRETARY OF THE NAVY.

SIR: Your letter of July 23 submits the question whether the act of August 1, 1892, entitled "An act relating to the limitation of the hours of daily service of laborers and mechanics employed upon the public works of the United States and of the District of Columbia" (27 Stat., 340), applies to labor under contract for the construction of naval vessels.

Mr. Justice Moody was then Attorney-General. He signed this opinion. It was prepared by the Solicitor-General, Mr. Hoyt, but it was approved and countersigned by Mr. Justice Moody. After the opening statement, that I have read, the opinion continues:

The act provides:

"That the service and employment of all laborers and mechanics who are now or may hereafter be employed by the Government of the United States, by the District of Columbia, or by any contractor or subcontractor upon any of the public works of the United States or of the said District of Columbia is hereby limited and restricted to eight hours in any one calendar day, and it shall be unlawful for any officer of the United States Government or of the District of Columbia, or any such contractor or subcontractor whose duty it shall be to employ, direct, or control the services of such laborers or mechanics, to require or permit any such laborer or mechanic to work more than eight hours in any calendar day except in case of an extraordinary emergency. Section 2 of the act provides a penalty for violation by an officer or contractor, and section 3 excepts from the operation of the act contracts entered into prior to its passage. The question therefore is, in effect, whether the phrase "public works of the United States" as used in the act of August 1, 1892, comprehends vessels under construction for the Navy by contract with builders at private establishments over which the Gov

ernment has no executive control or supervision. It seems that various vessels are under construction in accordance with the requirements of the act of August 3, 1886 (24 Stat., 215), and as authorized by different annual appropriation acts under the heading "Increase of the Navy;" and contracts in the usual form, postponing acceptance of the vessel and complete title in the Government until final delivery, have accordingly been made for the construction of a number of such vessels in private establishments of shipbuilders.

It was held by Attorney-General Miller (20 Op., 454) that the act of 1892 does not apply to the case of a contract for furnishing certain materials to the Government for use in the construction and equipment of public buildings.

Those articles were minor fixtures procured for use in public buildings.

Mr. PAYSON. They were post-office boxes and interior fittings. Mr. HAYDEN. They were manufactured in private establishments. The opinion continues:

In another opinion (id., 463) Mr. Miller considers the case of laborers and mechanics employed by the Quartermaster's Department of the Army upon public works, and also of all other laborers and mechanics employed in the Quartermaster's Department performing the usual and ordinary service of the character. He held that the law applies generally and without limitation to "public works" as to laborers and mechanics in the direct employment of the Government and of the District of Columbia; and that the limitation as to public works applies only to such persons as are in the employ of contractors and subcontractors.

That is, the eight-hour rule applies to all employees of the Government classed as laborers and mechanics, but its application to the employees of contractors and subcontractors is confined to those engaged on public works.

That case, however, did not at all involve employment under contractors or sub

contractors.

Mr. Griggs, construing the act of August 13, 1894 (28 Stat., 278), "for the protection of persons furnishing material and labor for the construction of public works," held that that act does not refer to contracts for the construction of naval vessels. He said: "The object of the act was to afford a better method for enforcing against the contractor the claims of laborers and material men who had done work or furnished material upon property actually belonging to the United States, such as public buildings which could only be erected upon land to which the United States had acquired a complete title, fortifications, river and harbor improvements, and such other things as are commonly understood under the designation of 'public works.' * The statute

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of 1894, intended, in a measure, to remedy the defect in the means of collection at the disposal of laborers and material men against contractors upon such works. No such reason applies to cases of the construction of a specific article not attached to soil the title of which is in the United States, but which is a mere movable article the whole title to which remains in the contractor until its completion and acceptance by the Government."

Undoubtedly "public works" is a phrase of rather wide signification, and it has not been precisely and fully defined. As shown, Mr. Miller and Mr. Griggs applied it to public buildings and Mr. Griggs to river and harbor improvements. (Cf. United States v. Jefferson, 60 Fed. Rep., 736.)

In 20 Op. 445, a timber dry dock was characterized as "a valuable and permanent improvement of real estate belonging to the United States," and it was held that, being solely for the use and benefit of the United States, it was "to be regarded as one of the 'public works of the United States' under this eight-hour law."

"The term 'public works' is defined as all fixed works constructed for public use, as railways, docks, canals, waterworks, roads, etc. [citing Century Dictionary] (Ellis v. Grand Rapids, 82 N. W., 244; 123 Mich., 567).

(See also Winters v. Duluth, 82 Minn., 127.)

The titles of statutes and subheadings thereof are not controlling, but they are often significant and persuasive. Besides other instances which might be given in this matter, consider the naval appropriation act of 1905 (act March 3, 1905, 33 Stat., 1092, 1101, 1104, 1105, 1116), there are various specific appropriations for "public works" under the Secretary, under the different bureaus and under the Marine Corps, while new construction of vessels by contract or in navy-yards is authorized under the heading Increase of the Navy." The act immediately following is the river and harbor

act of that year (28 Stat., 1117), and is technically entitled "An act making appropriations for the construction, repair and preservation of certain public works on rivers and harbors, and for other purposes."

By this it is suggested that the term "public works" can not be restricted to the conception of a fixed thing, land and structures thereon, for river and harbor acts not only provide for "repairs to breakwater," for example, but also "for improving said river in accordance with the project submitted," etc., which might include dredging alone, substantially, and the mere deepening of a channel. In such a case the paramount control by the United States over the marine belt, harbor areas and navigable waters is akin, in the interest created and in its permanence and completeness, to a title to real estate and ownership of fixed structures. But it is also true that ordinarily harbor and channel improvements by dredging and deepening involve tributary and permanent "works" like retaining walls, rip-rap, mattresses, etc.

Without, however, attempting authoritatively, to delimit this subject and say what things are embraced in the term public works," I am very certain that vessels under construction for the navy establishment are not, either in common acceptation or within legal intendments. Mr. Griggs in the opinion cited above points out the bearing upon the inquiry of the ordinary contracts for construction which have been substantially uniform for a long period, the title to the vessel remaining in the contractor until its completion and acceptance by the Government.

The contracts affected by the present inquiry provide for a government lien as payments on accounts are made, for various preliminary trials and preliminary and conditional acceptance, for final trial and acceptance, and for forfeiture in a certain contingency and the vesting of title in the Government thereupon, all showing that complete title does not rest in the Government until the conditions and covenants specified are fulfilled.

In a case involving a similar point (Clarkson v. Stevens, 106 U. S., 505, 515–517) the Supreme Court has held that

Accordingly we are of opinion that the fact that advances were made out of the purchase money, according to the contract, for the cost of the work as it progressed, and that the Government was authorized to require the presence of an agent to join in certifying to the accounts, are not conclusive evidence of an intent that the property in the ship should vest in the United States prior to final delivery. Indeed, in reference to the latter circumstance, it is noticeable as indicating a contrary intention, that the authority of the inspecting officer was expressly limited, so that it should not extend to a right to judge of the quality and fitness of the materials or workmanship, such matters and all others concerning the performance of the contract being reserved for determination after the completion of the work, as a condition of acceptance and final payment.

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"It is thus apparent, as we think, from these stipulations that the vessel was in all respects to be at the risk of the builder until, upon its completion, the United States should accept it, upon final examination and certificate, as conforming in every particular with the requirements of the contract and answering the description and warranty of an efficient steam battery for harbor defense, shot and shell proof."

That opinion quotes the rule laid down in Williams v. Jackman (16 Gray, 514), viz: “Under a contract for supplying labor and materials and making a chattel, no property passes to the vendee till the chattel is completed, and delivered or ready to be delivered. This is a general rule of law. It must prevail in all cases, unless a contrary intent is expressed or clearly implied from the terms of the contract."

The Attorney-General cited the case of the United States v. Ollinger (55 Fed. Rep., 959), which I have here.

Mr. DAVENPORT. What is the date of that opinion?

Mr. HAYDEN. Of the Attorney-General?

Mr. DAVENPORT. Yes.

Mr. HAYDEN. August, 1906. It seems that just before that the eight-hour law of 1892 had been brought to the attention of the President. It was discussed at a Cabinet meeting in an informal way and the Secretaries of War and of the Navy were advised that it should be applied to work done under contracts of their Departments, such as contracts for the delivery of ships and guns. Before giving instructions to his inspectors to enforce the eight-hour rule in private establishments the Secretary of the Navy referred the case to the AttorneyGeneral.

The CHAIRMAN. Just in that connection I would say that I had heard of that, Mr. Hayden, that Cabinet discussion, and reference seems to have been inspired by the then Attorney-General, not purposely, perhaps, who had suggested more than once, and perhaps insisted, that any of the public works did not mean at all the public works of the United States in an ordinary sense, and in other words might mean just what it would have meant if it had said "any of the public works," the act using the phrase "any of the" instead of merely saying "on the public works of the United States." I just wanted to call attention to that now so that you might, further along in your argument, if you think it worth while, say, if that suggestion had been true and had been upheld, what difference it could have made to the final conclusion.

Mr. HAYDEN. It seems to me it could have made none, because the Attorney-General, on consideration of the matter, found that work done in the manufacture of chattels in private establishments is private, although the chattel when finished is to be tendered to the Government. That work is not public in any sense; it is private. Right there, Mr. Chairman, I must say that the legend appearing on all of the official publications of this committee with respect to this bill "Eight hours for laborers on Government work"-is incorrect and misleading. The bill applies to work done in private establishments. That is conceded. It applies to practically everything that the Government procures from individuals by contract. On the authority of the case of Clarkson v. Stevens, and of the opinion of the Attorney-General, which I have just read, and under the general rule of law referred to by the court and the Attorney-General such work is private, not public. The United States has no proprietary interest in the chattel or in the plant where work upon it is being done. It has the right to demand the delivery of the chattel in conformity with the contract. But the work done in producing the chattel is private. The situation of the Government is no different from that of any private corporation.

The CHAIRMAN. 'It follows, of course, that if the "s" were stricken off the word "works" in the act of 1892 you would contend that the settled law limits its operations to just where it is limited with the "s" there?

Mr. HAYDEN. I do not think that would make any substantial difference in the scope of that law. It might extend its operation to river and harbor work. In the Ellis case the Supreme Court noted the difference between "public work" and "public works," and held that the act did not apply to the dredging of a channel which could be classed as "public work," but not among the "public works." But the mere elimination of the "s" from the word "works" would not make the statute applicable to private work.

The CHAIRMAN. Your contention is that that would not carry the operation of the bill beyond work upon soil controlled by the United States, or on things being made by the United States for itself? Mr. HAYDEN. Being made by the United States for itself?

The CHAIRMAN. Yes.

Mr. HAYDEN. The act does apply to work done in Government establishments.

The CHAIRMAN. Yes.

Mr. HAYDEN. Of every kind.