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only to that end. The ruling was correct. needs no argument to show that the disappointment of a contractor with regard to obtaining some of his materials, a matter which he knew involved some difficulty of which he took the risk, does not create such an emergency as is contemplated in the exception to the law. Again, the construction of the pier was desirable for the more convenient repair of warships, but it was not essential Vessels had been docked without it since 1835 or 1836, so that there was no hot haste on that account, if under any circumstances that kind of need would have been enough.
The question as to what would constitute an emergency within the meaning of this bill has arisen several times in the course of these hearings. Advocates of the bill have suggested that where the success of an extensive operation is at stake, such as the boring of a large cylinder, or the heating of metal to be converted into armor plate, there would be an emergency which would justify their working the men more than eight hours. But it is clear that under the decision of the Supreme Court just cited business convenience would afford no excuse. To constitute an emergency there must have been a casualty, by breakage, fire, flood, or something of that description, or else the life of a human being must be imperiled. There would be no justification in continuing a laborer or mechanic at his work for more than eight hours in the belief (there could be no certainty) that the success of the operation would be imperiled by putting a new man in his place. There would be the belief that failure and loss would ensue—there might be practical certainty that the substitution of a new man for the one in charge of the operation would imperil the result and involve the loss of material worth many thousands of dollars; but that would not be an emergency contemplated by the pending bill. In such a predicament the.contractor would be confronted with the choice of working his men overtime and paying a penalty of $5 per man or of the losing of material worth thousands of dollars.
Mr. EMERY. The fact that the contractor honestly believed that there was such an emergency would not avoid the penalty either.
Mr. HAYDEN. That would not justify him. As I say, there might be the strongest kind of probability that his property would be imperiled, but there would not be the certainty necessary to excuse him.
The Chairman has called attention to some other portions of this opinion. Aside from the indictment against Ellis, the opinion relates to an indictment against the Eastern Dredging Company, and the court was called upon to say who were and who were not laborers and mechanics within the meaning of the eight-hour law of 1892, and what were and were not public works, although, perhaps, properly classed as public work. The dredging of a channel was held to be public work, though it did not fall within the designation public works." That distinction, however, has nothing to do with the question before us. Here, as I have endeavored to show, we are dealing with private work. The bill does not relate toʻ"public. work” or “public works.”
Mr. Haskins. There is a sentence there in Justice Holmes's opinion, on page 259, in the first paragraph:
The language of the acts is "public works of the United States.” As the works are things upon which the labor is expended, the most natural meaning of “of the United States" is belonging to the United States.
Mr. HAYDEN. Yes, sir. Ownership of the property involved has been the test by which the courts have determined whether works were public or private. I have another authority for the proposition that a limitation of the hours of labor in general or a purely arbitrary limitation applied to labor not employed by the Government or on its public works would be an invasion of the rights of men which the Constitution was designed to protect. Dr. Lyman Abbott in his Rights of Man (p. 106) said: If any section of society endeavors to prevent any man from working and from enjoying the product of his work, that section of society is unjust. If any organization undertakes to prevent any man from working when he will, where he will, for whom he will, and at what wages he will, that organization violates the essential right of labor. It is not primarily the enemy of labor for every man to work, and every man has a right to the product of his industry.
Judge Cooley, too, in his work on Torts, says this, and I think it is well worthy of careful consideration:
The final test of what is a reasonable regulation must be found in the legislative judgment, unless the Constitution has provisions on the subject. What the legislature ordains and the Constitution does not prohibit must be lawful. But if the Constitution does no more than to provide that no person shall be deprived of life, liberty, or property, except by due process of law, it makes an important provision on the subject, because it is an important part of civil liberty to have the right to follow all lawful employments. Regulations invidiously framed to exclude persons or classes must be held forbidden by the constitutional provisions referred to.
I desire to say just one word upon the economic and practical side of the question.
Mr. NORRIS. Before you leave the legal proposition I want to ask you one question. There has been reference made quite a number of times to the Ohio case-of the Cleveland Construction Company.
Mr. HAYDEN. Yes, sir. I forbore to touch upon that at all, because it was most elaborately discussed by Mr. Davenport in his opening argument and appears at length in the report of the proceedings of this committee on pages 20 to 25, both inclusive.
Mr. NORRIS. I was not here at that time. I wish you would note pow the proper citation.
Mr. HAYDEN. Sixty-seven Ohio State Reports, 197. Proceeding with the economic and practical features of the question: Your attention has been called to Labor Bulletin No. 71 issued by the Department of Commerce and Labor, and what is said therein of the conditions which have prevailed among the laborers and the mechanics of the United States in various trades for some years past. It shows that there has been a marked improvement in those conditions. There has been a very large increase in the number of persons employed. There has been a large increase in the wages paid. There has been an increase in the cost of living, but not as great as the increase in wages. There has been a diminution of the hours of labor. That, I submit, shows a healthy condition of affairs, a steady betterment of the condition of laborers and workmen in the country. We believe that it is due to increased efficiency on their part and to the introduction of improved machinery, and also to the prosperous business conditions that prevailed in the country until the unhappy incidents of the past year. The improvement of the condition of the laborer and mechanic is shown graphically by a plat on page 7 of the Bulletin, No. 71, of the Bureau of Labor, published in July, 1907. I ask that the committee include that in the report of its proceedings.
I desire also to call the committee's special attention to certain diagrams published in Bulletin No. 54, which represent the average wages paid and the average hours of daily labor performed in this country, Great Britain, Germany, France, and Belgium. I desire to say that it shows throughout the various trades, such as blacksmiths, boiler makers, bricklayers, compositors, iron molders, machinists, laborers in general, that the wages paid in this country are higher than they are anywhere else in the world. The hours of labor here compare very favorably with those prevailing in other countries. · Mr. Gompers was wrong in the rule which he announced, that the shorter the hours of labor the higher the wages, not per hour, but per day. I think that is a false rule and that the committee will see that it is not borne out by the tables to which I have referred.
At the hearing yesterday, Mr. Gompers, appearing as an advocate of the bill, made a statement that was by no means applicable to the question which you have under consideration. He remarked that those who had appeared before you opposing the bill had brought about a condition of things which outlawed the labor unions pursuing what he admitted to be the ordinary operations of organized labor. He referred to the Sherman Antitrust Act and the recent decisions of the Supreme Court. None of these things dealt with the right of Congress to regulate the hours of labor. We all know that the persons who have appeared before you in opposition to this bill took no part in securing the passage of the Sherman Act. It was passed before their day. It was not passed at their instance or for their benefit, but to preserve the interests of the public in interstate com
The Supreme Court has interpreted it, and we find in its decisions no more than this, that every man, be he a capitalist or laborer, must obey the law. Before the law all persons are and should be equal—every one will receive fair treatment from the courts of the United States. I submit that it is not becoming in any citizen to criticise the decisions of the courts, least of all, the court of last resort.
It was suggested by Mr. Gompers that he had considered it desirable to have present at these hearings certain representatives of organized labor, being of the notion that they would have a deterring effect upon those who appeared in opposition to the bill. That I resent. The committee has seen the men who have appeared here opposing the bill. They have been earnest, and I believe that you must have been convinced of their honesty. No matter whether you agree with their views or not, you must know that they spoke from sincere conviction when they said that the bill if enacted would render it impossible for them to continue dealing with the Governemnt; that the eight-hour regulation contemplated could not be put in operation; that it would interfere with or prevent certain things that are carried on in their industries; that it would greatly increase the cost of materials and articles that they produce under contract with the Government; that they could not conduct their plants with part of their men, working on an eight-hour basis, engaged in doing work under Government contracts, and another part of them engaged in private work employed on a ten or a nine hour schedule. They said further that under the conditions now prevailing throughout the country, plants engaged exclusively in work for the general trade, and which employ their men for nine or ten hours daily with the privilege of overtime work, would be driven out of business if they accepted Government contracts and adopted the eight-hour day. They were sincere in all that.
I submit, Mr. Chairman, that this bill, if enacted, would have a more far-reaching and a more detrimental effect upon the industries of this country and would prove a greater obstacle to the return of its industrial prosperity than any measure conceivable. I submit that it would be class legislation of the most pronounced type. Financial and commercial disaster, not only to the manufacturers and capitalists, but to the employees who look to them for their daily wages and their livings, would ensue.
The CHAIRMAN. Before you conclude, Mr. Hayden, I suppose you have considered the question. Do you think that anything could be said as bearing upon the proposed measure on the difference between the sovereignty of the National Government and the sovereignty of the States, the one being primary and absolute and constitutions acting only as a limitation on the legislatures, and the one acting only by reason of powers specifically granted ?
Mr. HAYDEN. I can not do better, sir, than read to you the fifth amendment and the first paragraph of the fourteenth amendment to the Constitution of the United States. One operates to restrain the Federal Government and the other the States, but the restrictions are substantially the same.
The CHAIRMAN. Yes; but that is not the idea. In a State constitution we look for the power to restrain the legislature; in the Federal Constitution we search for the power to authorize the legislative act.
Mr. HAYDEN. Also, I think, for restrictions. Take the bill of rights added by amendment to the Constitution. That restricted the powers of the Federal Government in a great many particulars.
The Chairman. That is true; but take the general proposition, the General Government in a general way derives its power from a constitution.
Mr. HAYDEN. And is limited by it.
The CHAIRMAN. And the State legislature finds the constitution but a limitation on its powers. Now, is there anything to be extracted from that which would have any bearing on this bill?
Mr. DAVENPORT. The Federal Government is one of enumerated powers and the State government has all the powers of sovereignty except so far as they are limited by the State constitution and by the Federal Constitution.
Mr. HAYDEN. That is correct.
The CHAIRMAN. And therefore the act might be perfectly constitutional, under the State constitution, but no power found to support it under the Federal Constitution.
Mr. HAYDEN. Very true, but the effect of a State constitution is the same in this respect that each curbs the legislative and the executive departments.
The CHAIRMAN. One curbs by forbidding and the other curbs by silence.
Mr. HAYDEN. There are positive prohibitions contained in the Federal Constitution.
The CHAIRMAN. Yes; but they are not so much in question here.
Mr. HAYDEN. Surely the fifth amendment to the Constitution of the United States is drawn in question here.