The CHAIRMAN. No, you do not catch my point. You think that with any of the wording that has been suggested the act would still have been confined in its operation to work done by the Government for itself, or to work done upon soil over which the United States has jurisdiction?

Mr. HAYDEN. Yes, and to which it had title.

The CHAIRMAN. Well, you do not have to go as far as that with labor, do you to the title?

Mr. HAYDEN. The Government owns or has a controlling interest in soil underlying public waters for the purposes of navigation.

Mr. DAVENPORT. It has a dominant interest. That is the decision in the Chicago case; they have not title, but they have a dominant interest for the purposes of navigation and commerce.

The CHAIRMAN. The reason dominates the title. I had the decision here, and I was going, when we came to that, to follow Mr. Hayden's argument, but his argument did not run parallel enough.

Mr. HAYDEN. The case of the United States v. Ollinger (55 Fed. Rep.), cited in the opinion of the Attorney-General reads, (pp. 960961):

The facts of the case are that Capt. Philip M. Price, of the Corps of Engineers of the United States, and on behalf of the Government of the United States, invited the defendant to bid for the building of two stone barges, which, upon certain conditions, were subject to the acceptance or rejection of the Government authorities; that the defendant, on the 2d of March, 1893, proposed to furnish to the Government of the United States the two stone barges complete for the sum of $2,470, and to deliver them at Mobile, Ala., within forty days after receipt of order for them; and agreed to execute the work according to specifications and drawings to be furnished him. This proposal was made to Capt. Philip M. Price on the 13th of March, 1893. He accepted it in writing, and in his letter of acceptance says, if the barges be built according to specifications furnished, and are delivered at Mobile, Ala., within forty days after the receipt of his (Price's) letter, they will be purchased from defendant at price stated, víz, $2,470. In his letter Captain Price says: "During the building of the barges proper facilities must, of course, be afforded my agent for inspecting material and workmanship." Under this agreement defendant commenced work on the barges on March 20, 1893, and for several days worked his men nine hours per day, instead of eight hours per day. A short time thereafter this prosecution was commenced, and the case now comes before the court for its decision on an agreed statement of facts, as herein above set forth.

In my opinion, a statement of the facts is alone sufficient to show that the act of Congress under which this prosecution is sought to be maintained has no application to the case. It is doubtful whether the defendant could ever be considered a contractor. If a contractor, he was a contractor to furnish to the Government of the United States two barges, to be delivered within forty days from the making of the contract, which, if built according to certain specifications furnished him, were to be purchased by the Government from him. The barges were his and were to be his until the Government purchased them. They might or might not become the property of the Government. The transfer of title to them depended upon conditions which could not be determined until the barges were completed. It is clear to me that the building of the barges was in no sense a part of the public works; no more so than the mining of coal contracted to be furnished to the Navy and marine service of the United States, according to specifications as to quantity and quality, or the furnishing under contract with the Government of the United States of lumber and brick to be used in building quarters at Mount Vernon barracks for officers or soldiers or any other public use, according to specifications and to kind.quality, and quantity. It would hardly be contended that the mining of such coal, the sawing of the lumber, or making the bricks would be public works in contemplation of the act of Congress, or that the laborers engaged in the work of mining and in making the lumber and bricks were the laborers whose sevices and employment Congress has undertaken to regulate and limit. I fail to see any difference in principle in the cases mentioned and that under consideration.

The rule announced by the court in this case is not a new one. It was followed certainly from the time that the Government's contractual dealings with its citizens were made the subject of judicial inquiry and regulation. The case of Grant v. U. S. (7 Wallace, 331) is one of the first in which the rule was announced and followed that the Government enters into contracts with its citizens on precisely the same basis as, and with no greater rights than, an individual. Its contracts with citizens are to be interpreted and enforced like contracts between individuals. Mr. Justice Davis, delivering the opinion of the Supreme Court in the Grant case, said:

On the theory that the order of the Secretary of War of March 9, 1860, granting to Taliafero and Grant the privilege of furnishing and delivering at certain posts in Arizona for two years all the supplies that might be needed there for the service at certain stipulated rates was a contract mutually binding on the Government and the claimant the obligations imposed on the parties to it are clearly defined.

It was the duty of the claimant, as well as his exclusive privilege, to furnish all the supplies which were needed for the use of the service in Arizona, and on the receipt of the goods there, the Government was bound to pay him for them the prices which were fixed in the order. It is too plain for controversy, that the property did not vest in the United States until it was delivered. To escape the force of this rule at law, it is insisted, as the goods were inspected in New York and pronounced to be of the proper kind and quality, that the title then passed to the United States, and that they only remained in possession of the claimant for transportation, and as he was prevented from delivering them by the public enemy, the loss must be borne by the United States. This position can not be sustained, for the inspection at New York, on which it is based, did not work a change of title in the property, nor was it in the contemplation of the parties that it should. It did not affect the contract at all. The goods, by a well-known usage of the War Department, had to be inspected somewhere, and as the contract contained nothing on the subject, it was for the advantage of the contractor that they should be inspected before shipment, rather than at the point of delivery. The War Department took upon itself no additional responsibility by inspecting them in New York, instead of Arizona, and this inspection in no wise relieved the claimant from any obligation which he had assumed. He had agreed to deliver the goods in Arizona, and until he did this there was no contract on the part of the Government, either express or implied, to pay him for them. All that the certificate of Major Eaton, the inspecting officer, proves, is, that the goods, when presented to him for inspection, were contained in strong, sound, full-hooped barrels and well-secured tierces, properly marked with the names of the places to which they were destined, and were of the kind and quality usually provided by the subsistence department.

But the title did not pass and prior to delivery and acceptance could not pass.

Another case in which the same rule was followed is that of Smoot v. The United States (15 Wallace, 36). Mr. Justice Miller, delivering the opinion of the court, said this:

There is in a large class of cases coming before us from the Court of Claims a constant and ever-recurring attempt to apply contracts made by the Government, and to give to its action under such contracts a construction and an effect quite different from those which courts of justice are accustomed to apply to contracts between individuals. There arises in the mind of parties and counsel interested for the individual against the United States a sense of the power and resources of this great Government, prompting appeals to its magnanimity and generosity, to abstract ideas of equity, coloring even the closest legal argument. These are addressed in vain to this court. Their proper theater is the halls of Congress, for that branch of the Government has limited the jurisdiction of the Court of Claims to cases arising out of contracts express or implied-contracts to which the United States is a party in the same sense in which an individual might be, and to which the ordinary principles of contracts must and should apply.

Then the court proceeded to say that it would be very dangerous to depart from that principle, dangerous not only to the Government but dangerous to the individual. The rules of law which govern the

dealings of individuals must control those between the Government and its citizens for their security and its own. The dual character of the Government is recognized-first it is a sovereign charged with the performance of certain public acts or functions; second, it is a business corporation making purchases and operating various appliances in the performance of its work.

The case of Wilson v. United States (71 Ct. Cls., 513) is one that I ask you to consider. Without reading the opinion at length, I have the substance here: The double character of the Government as contractor and as sovereign can not be lost sight of in any of its transactions. For the acts of its contracting agents, within the scope of their authority, it is liable as a contracting party. For the general acts of a military officer acting for the public defense it is not liable as a contracting party, though the acts operated as an interference and directly prevented the performance of the contract.

Those authorities sustain my proposition, that the work which this bill seeks to regulate is private work and is not subject to governmental control. Proceeding in the manner contemplated by this bill, the Government would invade private establishments and impose upon them a few of the restrictions that are not imposed upon all. The bill would be class legislation, affecting only the few employees who happen to be called upon at one time or another to take part in the production of material which the Government may acquire ultimately, but in which it has no proprietary interest at the time the work is done.

Mr. DAVENPORT. The sovereignty of the Government does not extend over those matters?

Mr. HAYDEN. Oh, no. It has a distinct character as a sovereign and an equally distinct character as a contractor. In one it is a Government performing public functions, and in the other it is a contractor carrying on its own business.

The CHAIRMAN. They mix strangely, sometimes, however.

Mr. HAYDEN. The status in our respect or in the other is always easily determined.

The CHAIRMAN. The Government as an individual may make a contract a simple, ordinary contract and as a sovereign in law it makes the violation of any part of that contract criminal, certainly to the extent of the things over which it has jurisdiction.

Mr. HAYDEN. I think it has that right as a sovereign.

The CHAIRMAN. The act of 1892 is an illustration of that.

Mr. HAYDEN. Yes, sir; that has been sustained by the courts as a valid exercise of the Government's right to control its own property. Mr. DAVENPORT. In the character of a sovereign.

Mr. HAYDEN. Yes.

The CHAIRMAN. It makes a contract with an individual and enforces the contract as a sovereign, penally.

It

Mr. HAYDEN. Yes; because the property dealt with is its own. does not infringe private rights as it would do if this bill were to become a law and it should make contracts containing the proposed eight-hour clause.

Mr. HASKINS. In other words, in building a battle ship in the Brooklyn Navy-Yard they are there exercising their powers, and they can control the hours of labor there?

Mr. HAYDEN. In the Brooklyn yard?

Mr. HASKINS. Yes.

Mr. HAYDEN. Yes, certainly, because there they do not come in contact with the great mass of citizens and do not interfere with their work.

Mr. HASKINS. Their employees are their own.

Mr. HAYDEN. In regulating its own property in that way the Government does not impair the freedom of other parties.

Mr. HASKINS. But you take a contract for the building of a ship at Newport News or at Cramps, for instance, under contract with the Cramp Company, and that vessel has got to be built and submitted and accepted as satisfactory to the Government?

Mr. HAYDEN. Yes, sir.

Mr. HASKINS. Now, supposing that this bill became a law, and they were penalized in large amounts of money for working ten hours a day, and the vessel was completed and turned over, or, rather, tendered to the Government, and the Government failed to accept it because it did not meet the specifications; whose is it? Mr. HAYDEN. It belongs to the contractor.

Mr. HASKINS. Certainly.

Mr. HAYDEN. The vessel is constructed at the contractor's risk. Mr. HASKINS. The property is theirs if the Government does not take it?

Mr. HAYDEN. Yes, sir.

Mr. DAVENPORT. And they could sell that ship to any other government?

Mr. HAYDEN. If it be rejected by the United States.
Mr. DAVENPORT. Yes.

Mr. HAYDEN. Undoubtedly.

The CHAIRMAN. I understand the distinction that is being argued for. I was trying to locate where it became a real distinction. What would you say of the power of Congress to make the violation of an ordinary contract between citizens of Arizona a criminal offense? Mr. HAYDEN. I think that would be class legislation, and that it would be unconstitutional.

Mr. HASKINS. And an interference with their private rights under the Constitution?

Mr. HAYDEN. Yes, sir; clearly.

The CHAIRMAN. And the same, of course, with States?

Mr. HAYDEN. Yes, sir.

Mr. DAVENPORT. A fortiori.

The CHAIRMAN. Yes.

Mr. HAYDEN. The attention of this committee has been called several times to the case of Atkin v. Kansas (191 U. S., 207), and it has been relied upon by some as tending to show that it is competent for the Federal Government to prescribe the length of time that laborers and mechanics may be permitted to work. I shall review that case with some care, and shall show the committee that the Supreme Court had no intention whatever, and expressly disclaimed any intention, of making such a ruling. A statute of the State of Kansas was drawn in question. The operation was confined to public works of the State. It provided that no laborer or mechanic in the employ of a contractor engaged in constructing any such public work should be permitted to work more than eight hours. The courts held that the enactment of the statute was valid exercise by the State of its police power and a valid exercise of control of its own property.

Mr. HASKINS. That case grew out of the building of a boulevard? Mr. HAYDEN. Yes; the building of a boulevard, a public work of the State.

The CHAIRMAN. Arbitrary, however, if there was no underlying reason for the legislation.

Mr. HAYDEN. Can it be objected to as arbitrary when it is the State's own regulation of its own property?

The CHAIRMAN. I know it is held not to be; that is, where the right is an absolute proprietary right. I think the best illustration of that distinction is to be found in the opinions of the several Attorneys-General and of the courts in the oyster cases, where the States are the owners of the riparian rights and have passed acts excluding citizens of other States from oystering on the public ground, and the case has been brought into the court under the fourteenth amendment.

Mr. HAYDEN. Yes.

The CHAIRMAN. That is under the provision of the Constitution that the citizens of each State are to be entitled to all the rights and immunities of the citizens of every State, and the only defense of the States in excluding the citizens of other States from their oyster grounds is the proprietary right, and in what I have been pleased myself to call an argument lodged with the attorney-general of New Jersey it was illustrated by the statehouse yard, which is the absolute property of the State. Now, those cases have all gone off on the point of the absolute proprietary right of the State in the soil. Mr. HASKINS. The State has the same rights in streets and highways.

Mr. DAVENPORT. No; more and different. The right in the fee of the shore, you might call it, being out of the limit of the State, is in the State, and the State in our State deeds these oyster lands. Mr. HAYDEN. That is correct. The same thing is done here. I think the chairman had in mind this provision of the Constitution (fourteenth amendment):

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.

The CHAIRMAN. That is not the precise provision, but this was pleaded with the other.

Mr. HAYDEN. You mean the clause relating to the abridgment of privileges and immunities?

The CHAIRMAN. Yes.

Mr. HAYDEN. I do not understand that such an abridgment has ever been held valid.

The CHAIRMAN. I so understand. Such an adridgment has been held valid in Virginia and in Maryland. The New Jersey case was not decided, because they were satisfied in the cases that were pending with the decisions that preceded them.

Mr. HAYDEN. In disposing of oyster beds, covering the beds of public waters, the State disposes of its own property. It can sell its lands to anyone that it pleases and can exclude from them anyone that it sees fit to exclude. But the State could not deny to citizens of other States the right to navigate its waters.