The CHAIRMAN. But the questions did not arise under sale; they arose under statutes which provided that none but the citizens of the State should oyster on the grounds free to the citizens of the State.

Mr. HAYDEN. The State can give away its property as well as sell it. The oysters being its property, the State can give the privilege of dredging to one person or to a class of persons. It can give that privilege to its own citizens and exclude those of other States without abridging rights and privileges which belong to the people of the country in general.

The CHAIRMAN. That is just what the court has held, but it seems to me from recollection-I have not read any of those cases in ten years that that very distinction you mentioned in regard to the boulevard in the Kansas case being public property was very nicely drawn.

Mr. HAYDEN. But is not the principle the same? In one case the State, having title to an oyster bed, sees fit to make a certain disposition of it and does so.

The CHAIRMAN. That is what I am suggesting.

Mr. HAYDEN. In the case of Atkin v. Kansas the State sought to regulate in a particular way the management of its property. The CHAIRMAN. Municipal property.

Mr. HAYDEN. A municipality is an agency of the State.

The CHAIRMAN. That is what the court held.

Mr. HAYDEN. The decisions are consistent. In both cases it was held that the State could exercise control over its own property in a manner not forbidden by the Constitution of the United States. In the oyster bed cases the court held merely that the privilege of appropriating oysters was not a public right or privilege, and that neither the public in general nor the citizens of other States in particular could claim that they were entitled to share it with the citizens of the State owning the beds. The privilege was the State's own property which it could sell or give away as it pleased.

The CHAIRMAN. Yes.

Mr. HAYDEN. And therein lies the distinction between the act of 1892 and the pending bill. The act of 1892 carried the Government's regulation of the hours of labor of laborers and mechanics to the fullest limit sanctioned by law. The regulation was extended to cover all of its employees and all of its public works. To go beyond that and control the private dealings of individuals would be in excess of the powers of the General Government.

The CHAIRMAN. Not as a part of this argument, but do you happen to know why it is that under the statutes of Kansas and Ohio, which practically enacted this legislation-this bill-with the criminal provisions of the act of 1892 attached to it, there has never been any attempt, so far as litigation shows, to enforce the act, otherwise than on public work?

Mr. HAYDEN. I read one case on that point this morning, the one reported in 55 Federal Reporter. It grew out of an attempt to apply the eight-hour law of 1892 to work done under a contract for the construction of two stone barges.

The CHAIRMAN. By the United States?

Mr. HAYDEN. The United States sought to enforce it.

The CHAIRMAN. Yes; but, for instance, the State of Ohio had a statute.

Mr. HAYDEN. Yes.

The CHAIRMAN. Being the bill under consideration, enlarged to reach municipalities.

Mr. HAYDEN. Yes.

The CHAIRMAN. And with the criminal provisions attached to it. That is substantially the Kansas statute; it is taken from this bill. Now, they both had cases in the Supreme Court on contracts for public work

Mr. HAYDEN.. Yes.

The CHAIRMAN (continuing). By way of making improvements, excavations, and public things of that sort; but I simply wanted to inquire if you happened to know, so far as litigation discloses, that there has never been any attempt in those States to enforce those acts in their application to State supplies.

Mr. HAYDEN. Contracts for the delivery of chattels?

The CHAIRMAN. Yes.

Mr. HAYDEN. I assume that the States understood that the laws were not applicable to such contracts.

The CHAIRMAN. They are by their terms, if this one is.

Mr. HAYDEN. The laws were unconstitutional as applied to such contracts. They may have known that.

The CHAIRMAN. I only wanted to know if in your investigations you had inquired as to the facts?

Mr. HAYDEN. I have not.

Mr. EMERY. Pardon me, Mr. Chairman, but the other statute is broader than and goes much further than the Kansas statute. One of the points raised in the Ohio case was that the State was seeking to limit the contractual rights of a municipality in regard to purely local matters, just as in this case they tried to inhibit the exercise of the power of a private individual.

The CHAIRMAN. As a matter of fact, what was the work that the company was doing?

Mr. EMERY. You mean in the Cleveland case?

The CHAIRMAN. Yes.

Mr. EMERY. They were building a sewer. The city of Cleveland had control there and not the State of Ohio. In the Kansas case the municipality was only an agent.

The CHAIRMAN. The courts held differently, that was all. My interruption was only to learn whether in the course of their investigations anybody had come into possession of the reasons why those States had not attempted to enforce this legislation in these States, like the bill we are considering in those respects in which we are contemplating this bill will be operative.

Mr. HAYDEN. In the Atkin case the work in question was being done under a contract for the construction of a boulevard owned by a municipality. The contractor was indicted for requiring or permitting a laborer to work more than eight hours daily. After judgment in the State courts the case came to the Supreme Court of the United States on writ of error, and the latter court, in a most interesting and elaborate opinion, reviewed it as follows:

No question arises here as to the power of a State, consistently with the Federal Constitution, to make it a criminal offense for an employer in purely private work in which the public has no concern to permit or to require his employees to perform daily labor in excess of a prescribed number of hours. One phase of that general question was considered in Holden v. Hardy (169 U. S., 366), in which it was held that the Constitution of the United States did not forbid a State from enacting a statute

providing as did the statute of Utah there involved that in all underground mines or workings and in smelters and other institutions for the reduction or refining of ores or metals, the period of the employment of workmen should be eight hours per day, except in cases of emergency when life or property is in imminent danger. In respect of that statute, this court said: "The enactment does not profess to limit the hours of all workmen, but merely those who are employed in underground mines, or in the smelting, reduction, or refining of ores or metals. These employments, when too long pursued, the legislature has judged to be detrimental to the health of the employees, and so long as there are reasonable grounds for believing that this is so, its decision upon this subject can not be reviewed by the Federal courts. While the general experience of mankind may justify us in believing that men may engage in ordinary employments more than eight hours per day without injury to their health, it does not follow that labor for the same length of time is innocuous when carried on beneath the surface of the earth, where the operative is deprived of fresh air and sunlight, and is frequently subjected to foul atmosphere and a very high temperature, or to the influence of noxious gases, generated by the processes of refining or smelting.'

As already stated, no such question is presented by the present record, for the work to which the complaint refers is that performed on behalf of a municipal corporation, not private work for private parties. Whether a similar statute applied to laborers or employees in purely private work would be constitutional is a question of very large import, which we have no occasion now to determine or even to consider.

Again it was said:

It may be that the State, in enacting the statute, intended to give its sanction to the view held by many, that, all things considered, the general welfare of employees, mechanics, and workmen, upon whom rest a portion of the burdens of government, will be subserved if labor performed for eight continuous hours was taken to be a full day's work; that the restriction of a day's work to that number of hours would promote morality, improve the physical and intellectual condition of laborers and workmen, and enable them the better to discharge the duties appertaining to citizenship. We have no occasion to consider these questions, or to determine upon which side is the sounder reason; for, whatever may have been the motives controlling the enactment of the statute in question, we can imagine no possible ground to dispute the power of the State to declare that no one undertaking work for it or for one of its municipal agencies—

Those words "for it or for one of its municipal agencies" are italicized by the court

should permit or require an employee on such work to labor in excess of eight hours each day, and to inflict punishment upon those who are embraced by such regulations and yet disregard them. It can not be deemed a part of the liberty of any contractor that he be allowed to do public work in any mode he may choose to adopt, without regard to the wishes of the State.

Again, summing up the conclusions that had been announced and reiterating the distinction between public work and private work, Mr. Justice Harlan said:

We rest our decision upon the broad ground that the work, being of a public character, absolutely under the control of the State and its municipal agents acting by its authority, it is for the State to prescribe the conditions under which it will permit work of that kind to be done. Its action touching such a matter is final so long as it does not, by its regulations, infringe the personal rights of others; and that has not been done.

The court forebore to say, and disclaimed any intention of saying, that it would be competent for the Federal Government, or even for a State, to forbid individuals to make any bargain that they please with respect to the purchase or the sale of labor, where the prohibition has no basis other than the fact that the product of that labor is ultimately to become the property of the Government.

The CHAIRMAN. Even the statute of Kansas was upheld, with the Chief Justice and Justice Brewer and Justice Peckham dissenting, was it not?

Mr. HASKINS. You understand that a dissenting opinion is not the authority of law, is it?

The CHAIRMAN. No.

Mr. HAYDEN. Three members of the court-the Chief Justice, Mr. Justice Brewer, and Mr. Justice Peckham-dissented. The grounds of their dissent were not given.

The CHAIRMAN. Where the case may come before the court in other aspects, and three members dissent from the opinion, it is indicative of what might happen.

Mr. NORRIS. But it would not be right to assume that their dissenting opinion was based upon anything but the question that was properly before the court?

Mr. HAYDEN. That is so.

The court here held that the Kansas act

was valid as applied to public works.

Mr. NORRIS. If the dissenting opinion means anything, and I think it does, the application would be that inasmuch as they said nothing, they did not agree with the opinion that was reached?

Mr. HAYDEN. That they held the act to be an infringement of the right of individuals to contract for labor-its purchase or its sale. Mr. NORRIS. Yes.

Mr. HAYDEN. The case of Lochner. The People of the State of New York (198 U. S., 45) has been brought to the attention of the committee, but we shall do well to give it further consideration. That was an indictment under a statute of the State of New York which, among other things, limited the hours of labor permitted in bakeries. The State courts held the statute valid, but on writ of error to the Supreme Court of the United States, it was held to be class legislation and repugnant to the Constitution.

Mr. Justice Peckham, delivering the opinion of the Supreme Court, said:

The indictment, it will be seen, charges that the plaintiff in error violated the one hundred and tenth section of article 8, chapter 415, of the laws of 1897, known as the labor law of the State of New York, in that he wrongfully and unlawfully required and permitted an employee working for him to work more than sixty hours in one week. There is nothing in any of the opinions delivered in this case, either in the supreme court or the court of appeals of the State, which construes the section, in using the word "required," as referring to any physical force being used to obtain the labor of an employee. It is assumed that the word means nothing more than the requirement arising from voluntary contract for such labor in excess of the number of hours specified in the statute. There is no pretense in any of the opinions that the statute was intended to meet a case of involuntary labor in any form. All the opinions assume that there is no real distinction, so far as this question is concerned, between the words "required" and "permitted." The mandate of the statute that "no employee shall be required or permitted to work," is the substantial equivalent of an enactment that "no employee shall contract or agree to work," more than ten hours per day, and as there is no provision for special emergencies the statute is mandatory in all cases. It is not an act merely fixing the number of hours which shall constitute a legal day's work, but an absolute prohibition upon the employer, permitting, under any circumstances, more than ten hours' work to be done in his establishment. The employee may desire to earn the extra money, which would arise from his working more than the prescribed time, but this statute forbids the employer from permitting the employee to earn it.

Again it is said:

It must, of course, be conceded that there is a limit to the valid exercise of the police power by the State. There is no dispute concerning this general proposition. Otherwise the fourteenth amendment would have no efficacy and the legislatures of the States would have unbounded power, and it would be enough to say that if any piece of legislation was enacted to conserve the morals, the health, or the safety of the people,

such legislation would be valid, no matter how absolutely without foundation the claim might be. The claim of the police power would be a mere pretext-become another and delusive name for the supreme sovereignty of the State to be exercised free from constitutional restraint. This is not contended for before this court. Therefore, where legislation of this character is concerned and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable, and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family? Of course the liberty of contract relating to labor includes both parties to it. The one has as much right to purchase as the other to sell labor.

Again:

It is manifest to us that the limitation of the hours of labor as provided for in this section of the statute under which the indictment was found, and the plaintiff convicted, has no such direct relation to and no such substantial effect upon the health of the employee as to justify us in regarding the section as really a health law. It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employees (all being men, sui juris) in a private business, not dangerous in any degree to morals or in any real and substantial degree to the health of the employees. Under such circumstances the freedom of master and employee to contract with each other in relation to their employment, and in defining the same, can not be prohibited or interfered with without violating the Federal Constitution.

The case of Ellis et al. v. The United States (206 U. S., 246) has been referred to frequently in the course of these hearings. One of the cases decided was an indictment in which the defendant was charged with a violation of the eight-hour law of 1892, in that he, being engaged in the construction of wharves and docks which were being built under contract with the United States, permitted laborers to work more that eight hours daily.

The CHAIRMAN. That was a number of cases consolidated.

Mr. HAYDEN. Yes. The various cases which were passed on were not, by any means, identical in fact. I call attention to the one which dealt with the construction of a pier. It was contended that there was an emergency such as to justify the employment of men more than eight hours, notwithstanding the prohibition of the act of 1892. It appeared that the contractor was limited in time and would incur a large penalty if he failed to complete the pier in due course. He had experienced trouble in procuring piling and other materials and encountered some trouble from adverse weather conditions. He did permit his men to work for more than eight hours daily. The court said that there was no emergency within the meaning of the act; it was merely a matter of business convenience. The emergency clause of the present bill is the same in legal effect as that contained in the act of 1892. The language contained in the two may not be identical, but it would be given the same construction. The court said:

In Ellis's case the plaintiff in error agreed to construct and complete pier No. 2 at the Boston Navy-Yard, within six months, according to certain specifications and at a certain price. He found more difficulty than he expected, although he expected some trouble, in getting certain oak and pine piles called for by the contract, and, having been delayed by that cause, he permitted his associate in the business to employ men for nine hours, in the hurry to get the work done. The judge instructed the jury that the evidence did not show an "extraordinary emergency within the meaning of the act. The judge was right in ruling upon the matter. Even if, as in other instances, a nice case might be left to the jury, what emergencies are within the statute is merely a constituent element of a question of law, since the determination of that element determines the extent of the statutory prohibition and is material