*W. W. ATKIN, Riff, in Err.,
v.
STATE OF KANSAS.
(See S. C. Reporter's ed. 207-224.)
Constitutional law — eight-hour law — free¬ dom of contract — equal protection of the laws.
1. The freedom to contract guaranteed by U.
S. Const. 14th Amend, is not infringed by the provisions of Kan. Gen. Stat. 1901, §§ 3827-
Nove. — Respecting the constitutionality of statutes restricting contracts and business — see note to State v. Loomis, 21 L. R. A. 789.
As to the validity of class legislation — see State v. Goodwill, 6 L. R. A. 621, and note ;
State v. Loomis, 21 L. R. A. 789, and note.
Respecting the constitutional equality of priv¬ ileges, immunities, and protection — see Louis¬ ville Safety Vault & T. Co. v. Louisville & N. R.
Co. 14 L. R. A. 579, and note.
On the validity and effect of statutes requir¬ ing wages to be paid in lawful money — see note to Avent-Beattyville Coal Co. v. Com. 28 L. R.
A. 273.
As to the validity and effect of statutes regu¬ lating the time of payment of wages — see note tc Re House Bill No. 1,230, 28 L. R. A. 344.
On statutory restrictions of contracts between master and servant — see notes to Com. v. Perry,
14 L. R. A. 325, and Ramsey v. People, 17 L. R.
A. 853.
Validity of legislation regulating hours of labor.
I. Introduction, 148.
II. General regulations, 149.
III. Specific employments.
a. Alining and smelting, 149.
b. Laundries, 150.
c. Railroads, 150.
d. Bakeries, 150.
e. Public loork, 150.
IV. Women and children, 152.
V. Sunday laws, 153.
I. Introduction.
Whenever the attention of the courts has been directed to the question of the validity of
191 U. 8.
1908.
Atkin v. Kansas.
3829, making It a criminal offense for a con¬ tractor for a public work to permit or require an employee to perform labor upon that work in excess of eight hours each day.
2. The equal protection of the laws is not de¬
nied to a contractor for a public work or his employees by the provisions of Ivan. Gen. Stat. 1901, §§ 3827-3829, making it a criminal of¬ fense for such contractor to permit or require an employee to perform labor upon the work In excess of eight hours each day.
[No. 30.]
Submitted May 1, 1903. Decided November SO, 1903.
"IN ERROR to the Supreme Court of the A State of Kansas to review a judgment which affirmed a conviction for a violation of the eight-hour law. Affirmed.
statutes regulating for all employments the hours of labor, they have denied the existence of legislative power, either absolutely to re¬ strict the right to labor or employ labor to a prescribed time, or to compel extra compensa¬ tion for overtime. On the other hand, regu¬ lations applicable only to specific employments are frequently, though not at all uniformly, sus¬ tained as a valid exercise of the police power to conserve the public health, and the courts are almost unanimous in sustaining the validity of such enactments as are designed to shorten the working hours of women and children. The right of freedom to contract is usually relied upon to defeat such statutes of this character as are not otherwise invalid as discriminative or class legislation. While it must be conceded that the right to contract is included in the con¬ stitutional guaranties designed to secure liberty and to protect property, it must also be ad¬ mitted that such right, like the other rights pro¬ tected by these guaranties, is not absolute, but is subject to regulation and limitation in the legitimate exercise of the police power. From an economic standpoint such measures may be objectionable, but the doctrine 'of laissez faire has not yet found its way into our Constitutions and it seems difficult to distinguish legislative regulation of hours of labor from the many un¬ doubtedly valid restrictions upon the right to contract which have been made, either by stat¬ ute, or by judicial application of the rules of public policy.
II. General regulations.
The constitutional right to contract is re¬ garded as sufficient, in Low v. Rees Printing Co. 41 Neb. 127, 24 L. R. A. 702, 59 N. W. 362, to invalidate a statute limiting to eight hours a legal day’s work for all classes of mechanics, servants, and laborers except those engaged in farm or domestic labor, and requiring for every hour’s work in excess of that number double the pay of the preceding hour.
So, where a proposed legislative measure which provided that “eight hours shall consti¬ tute a legal day’s work for all classes of me¬ chanics, workingmen, and laborers employed in any occupation in the state of Colorado” was submitted to the Colorado supreme court for an expression of opinion respecting its constitu¬ tionality, that court replied that such a law would violate the right of parties to make their own contracts guaranteed by the Colorado Bill
101 u. s.
619.
The facts arc stated in the opinion.
Mr. Thomas A. Pollock submitted the cause for plaintiff in error:
The term “liberty,” as used in the 2d clause of the 14th Amendment to the Consti¬ tution of the United States, guarantees the right to pursue any lawful calling or avoca¬ tion, and to enter into all contracts which may be proper, necessary, or essential to the carrying on of such calling or avocation.
Williams v. Fears, 179 U. S. 270, 45 L. ed. 186, 21 Sup. Ct. Rep. 128; Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427 ; Butchers’ Union 8. H. & L. 8. L. Go. v. Crescent City L. 8. L. & 8. H. Co. Ill U. S. 746, 28 L. ed. 585, 4 Sup. Ct.
of Rights, and protected by U. S. Const. 14th Amend. Re Eight Hour Law, 21 Colo. 29, 39 Pac. 328.
“Any statute,” says Magruder, J., in Fiske v. People, 188 Ill. 206, 52 L. R. A. 291, 58 N. E. 985, “providing that the employer and laborer may not agree with each other as to what time shall constitute a day's work, is an invalid act.”
So, in State v. McNally, 48 La. Ann. 1450, 36 L. R. A. 533, 21 So. 27. the court said that a municipal ordinance regulating the hours of la¬ bor generally within the city limits would un¬ doubtedly be invalid.
Even if otherwise valid, an exception of per¬ sons engaged in farm and domestic labor from a statute limiting a legal day’s work for mechan¬ ics, servants, and laborers to eight hours, and making the pay for every additional hour double that of the hour preceding, makes such statute unconstitutional as class legislation. Low v. Rees Printing Co. 41 Neb. 127, 24 L. R. A. 702, 59 N. W. 362.
III. Specific employments. a. Mining and smelting.
A statute limiting the period of employment of laborers in underground mines to eight hours a day, except in cases of emergency where life or property is in imminent danger, is a valid ex¬ ercise of the police power, under Utah Const, art. 16, § 6, requiring the legislature to pass laws to provide for the health and safety of em¬ ployees in factories, smelters, and mines, and does not deny the equal protection of the laws, or deprive anyone of liberty without due process of law. State v. Holden, 14 Utah, 71, sub nom. Holden v. Hardy, 37 L. R. A. 103, 46 Pac. 756, Affirmed in
169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383.
The same is true of a statute limiting the period of employment of laborers in smelters and other institutions for the reduction or refin¬ ing of ores or metals to eight hours a day, ex¬ cept in cases of emergency where life or prop¬ erty is in imminent danger. State v. Holden, 14 Utah, 96, sub nom. Holden v. Hardy, 37 L. R. A. 108, 46 Pac. 756, Affirmed in
169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383 ; Short v. Builion-Beck & C. Min. Co. 20 Utah, 20, 45 L. R. A. 603, 57 Pac. 720.
A different opinion is entertained by the Col¬ orado supreme court, which, in answer to inter¬ rogatories propounded by the legislature, said
149
Supreme Court of the United States.
Oct. Term,
Rep. 652; Braceville Goal Co. v. People, 147 Ill. 66, 22 L. R. A. 340, 35 N. E. 62; State v. Peel Splint Coal Co. 36 W. Va. 856, 17 L. R. A. 385, 15 S. E. 1000.
“Due process of law” implies at least a conformity with natural and inherent prin¬ ciples of justice, and forbids that one man’s property, or right to property, shall be taken for the benefit of another, or for the benefit of the state, without compensation, and that no one shall be condemned in his person or property without an opportunity of being heard in his own defense.
The words “due process of law” and “the equal protection of the laws” had for cen¬ turies possessed a well-known signification
that it is not competent for the legislature to single out the mining, manufacturing, and smelting industries of the state, and impose up¬ on them restrictions with reference to the hours of their employees from which other employers of labor are exempt. Re Bight Hour Law, 21 Colo. 29, 39 Pac. 328.
And in a later case the same court held that a statute making it unlawful to work more than eight hours per day in mines and smelters un¬ justly and arbitrarily singled out a class of per¬ sons, and imposed upon them restrictions from which others similarly situated and substantial¬ ly in the same condition were exempt. Re Mor¬ gan, 26 Colo. 415, 47 L. R. A. 52, 58 Pac. 1071. This statute, the court held to he such an in¬ fringement of a constitutional right to enjoy liberty and to acquire and possess property that it could not be justified as an exercise of the police power to protect the public health. The court refused to follow either State v. Holden, 14 Utah, 71, sub nom. Holden v. Hardy, 37 L. R. A. 103, 46 Pac. 756, or Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383, supra , saying that the decision of the Utah su¬ preme court in construing the Utah statute was not an authority, because the decision was based entirely upon the mandatory character of a pro¬ vision of the Utah Constitution not present in the Colorado Constitution ; and that, in affirm¬ ing the judgment of the Utah court, the decision of the Supreme Court of the United States was .not a precedent in the case at bar, because the sole question before the Federal court was whether or not the Utah act violated the Fed¬ eral Constitution, and that it might well be the case that a law is valid so far as the Federal Constitution is concerned, and yet run counter to an express inhibition of a state Constitution.
b. Laundries.
A municipal ordinance prohibiting laundry operations within certain prescribed territorial limits from 10 p. m. until 6 a. m. is not ob¬ noxious to U. S. Const. 14th Amend. Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357 ; Soon Hing v. Crowley, 113 U. S. 703, 28 L. ed. 1145, 5 Sup. Ct. Rep. 730.
c. Railroads.
The authority of a state legislature to pro¬ hibit railway companies from requiring certain of its employees who have been at work for
150
which became a part of the Constitution. They are synonomous with “the law of the land.” They mean a law binding upon every member of the community under similar circumstances.
Wally v. Kennedy, 2 Yerg. 554, 24 Am. Dec. 511.
They were intended to secure the indi¬ vidual from arbitrary exercise of the powers of the government, unrestrained by the es¬ tablished principles of private rights and distributive justice.
Bank of Columbia v. Okely, 4 Wheat. 235, 4 L. ed. 599.
They condemn arbitrary, unequal, and par¬ tial legislation.
State v. Loomis, 115 Mo. 307, 21 L. R. A. 789, 22 S. W. 351.
twenty-four consecutive hours again to go on duty until they have had at least eight hours rest was said, in Wheeling Bridge & Terminal R. Co. v. Gilmore, 8 Ohio C. C. ^658, to be un¬ doubted.
Such a statute would seem clearly to be sus¬ tainable because of the direct Interest which the public has in seeing that the safety of the hu¬ man freight intrusted to the railway companies should not be imperiled by the employment of other than alert and unwearied employees.
But the constitutional guaranties of liberty of action, the security of property, and the equal protection of the laws have been held to be in¬ fringed by the absolute prohibition of a state statute against employing certain classes of rail¬ way employees more than ten hours per day un¬ less given extra pay for overwork. Wheeling Bridge & Terminal R. Co. v. Gilmore, 8 Ohio C. C. 658.
To the contrary is Re Ten-Hour Law for Street Railway Corporations (R. I.) 61 L. R. A. 612, 54 Atl. 602, which holds that the legislature may, under the police power, properly prohibit the employment of street-railway employees for more than ten' hours within the twenty-four hours of the natural day, to be performed with¬ in twelve consecutive hours. And such statute is not rendered arbitrary, partial, or oppressive because it exempts from its operation cases of existing written contracts.
d. Bakeries.
A statute prohibiting employment in bakeries or confectionery establishments for more than sixty hours a week, or more than ten hours a day, unless for the purpose of making a shorter work day on the last day of the week, is a valid exercise of the police power to protect the pub¬ lic health.
People v. Lochner, 177 N. Y. 145, 69 N. B. 373.
But see infra , III. e, — People v. Orange Coun¬ ty Road Constr. Co. 175 N. Y. 84, 67 N. B. 129.
e. Public work.
A sharp conflict exists as to the validity of statutes similar to the one upheld in Atkin v. Kansas. In addition to the decision of the Kansas supreme court in this case (State v. At¬ kin,
64 Kan. 174, 67 Pac. 519), the Kansas eight-hour law being limited to persons em¬ ployed by the state, or by any of its political subdivisions, had previously been sustained in
191 TJ. S.
1903.
Atkin v. Kansas.
They mean, not only that the means which the laws afford for such security shall be equally accessible to him, but that no one shall be subject to any greater burdens or charges than such as are imposed upon all others under like circumstances.
Santa Clara County v. Southern P. R. Co. 9 Sawy. 165, 18 Fed. 398.
The 14th Amendment suffers no other or greater burdens or charges to be laid upon one than such as are equally borne by others.
Ex parte Virginia, 100 U. S. 339, 25 L. ed. 676; Barhier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 359.
Classification must have some reasonable basis. The differences which will support class legislation must be such as, in the
Re Dalton, 61 Kan. 257, 47 L. R. A. 380, 59 Pac. 336, as a mere direction of the state to its agents. “The position which the state has taken,” said Smith, J., in “nowise differs from that of an individual who, in the employment of labor, refuses to permit his employees to labor more than eight hours. . . . Whatever or¬
ders the state may give directly to its own agents, it may require of its political subdivi¬ sions, — instrumentalities of said government, such as counties, cities, and townships.”
So, a statute providing that in contracting for work to be done for the city of Buffalo the contractor shall bind himself not to accept more than eight hours as a day’s work, to be per¬ formed within nine consecutive hours, or, ex¬ cept in case of necessity, to employ anyone for more than eight hours in twenty-four consecu¬ tive hours, does not violate either the Federal or the New York Constitution. People v. War¬ ren, 77 Hun, 120, 28 N. Y. Supp. 303; People ex ret. Warren v. Beck, 10 Mise. 77, 30 N. Y. Supp. 473, Reversed on other grounds in 144 N. Y. 225, 39 N. E. 80. But see, infra, People v. Orange County Road Constr. Co. 175 N. Y. 84, 67 N. E. 129.
These seem to be the only decisions upholding the validity of such legislation, although some importance might be given to the language of McEnery, J., In delivering the opinion of the court in State v. McNally, 48 La. Ann. 1450, 36 L. R. A. 533, 21 So. 27, where, in holding invalid a municipal ordinance regulating the hours of labor on public works because it made a viola¬ tion of its provisions an indictable offense which the general assembly alone can create, he said : “The city has the absolute control of its own property, and can regulate the hours of work to be employed on the same. The ordinance vio¬ lates no law so far as it designates the number of hours in which laborers may be employed on public works.”
On the other hand, a municipal ordinance making it a misdemeanor for any contractor, when having labor performed for the purpose of carrying out a contract with the city, to de¬ mand, receive, or contract for more than eight hours’ labor in one day has been held to be void as a direct infringement of the rights of per¬ sons engaged in a lawful business to make and enforce their contracts. Ex parte Kuback, 85 Cal 274, 9 L. R. A. 482, 24 Pac. 737. And an ordinance almost identical in its terms was like¬ wise held invalid in Seattle v. Smyth, 22 Wash.
101 u. s.
nature of thi gs, furnish a reason for sepa¬ rate laws. Arbitrary designation is not clas¬ sification.
Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 46 L. ed. 679, 22 Sup. Ct. Rep. 439 ; State ex rel. Richards v. Rammer, 42 N. J. L. 438 ; Agars’ s Appeal, 122 Pa. 266, 2 L. R. A. 577, 16 Atl. 363.
The legislature is not the sole judge as to whether or not a classification is neces¬ sary and proper.
State ex rel. Pell v. 'Newark, 40 N. J. L. 79; Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 46 L. ed. 679, 22 Sup. Ct. Rep. 439;
Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383.
The arbitrary and unreasonable classifi¬ cation which is made the basis of the legis-
327, 60 Pac. 1120, as an interference with the constitutional right of freedom to contract.
The Ohio statute limiting to eight hours per day the work of laborers, workmen, and mechan¬ ics employed on behalf of the state or any po¬ litical subdivision thereof, and requiring every contract for public work to contain a stipulation to that effect, penalizing its violation, and making noncompliance a misdemeanor, abridges the right of contract, and invades the right of liberty and property, and is not sustainable as a valid exer¬ cise of the police power, because it does not ap¬ pear that the services to be performed were un¬ lawful or against public policy, or that they were of such character that such limitation was neces¬ sary to the public welfare. Cleveland v. Clem¬ ents Bros. Constr. Co. 67 Ohio St. 197, 59 L. R. A. 775, 65 N. E. 885. To the contention up¬ held in Re Dalton, 61 Kan. 257, 47 L. R. A. 380, 59 Pac. 336, supra , and indorsed in Atkin v. Kansas, that the statutq is only in the nature of a direction by a principal to his agent, and therefore within the legislative authority, the court replied that the fallacy of this argument lay in the unfounded assumption that the com¬ pulsory authority of the legislature over munic¬ ipal corporations is so absolute and arbitrary that it may dictate the specific terms upon which such municipality shall contract, and may pre¬ scribe what stipulations and conditions its con¬ tracts shall contain, although such contracts may, as in this case, relate only to matters of local improvement. Further, the court said such statute was much more than a mere direc¬ tion by a principal to an agent, and that its pro¬ visions applied, not only to officers and agents of the state, but, with equal force, to all persons who would enter into contracts with the state or any of Its political subdivisions, and under¬ took to limit and restrict such persons in their right to contract by prohibiting the making of contracts for a day’s work of more than eight hours.
The provision of N. Y. Penal Code, § 3847i, subd. 1, making it a criminal offense for any per¬ son or corporation contracting with the state or a municipal corporation to require more than eight hours' work for a day’s labor, was con¬ demned in People v. Orange County Road Constr. Co. 37 Misc. 341, 75 N. Y. Supp. 510, on a de¬ murrer to an indictment for its violation, as an unconstitutional interference with the rights of the individual. On appeal to the appellate di¬ vision of the New York supreme court, the judg-
151
Supreme Court of the United States.
lation under consideration is forcibly pointed out in many recent decisions, some of them being based upon statutes almost identical with that under consideration.
People ex rel. Rodgers v. Goler, 100 N. Y. 18, 52 L. R. A. 814, 59 N. E. 716; Cleveland v. Clement Bros. Constr. Co. 67 Ohio St. 197, 59 L. R. A. 775, 65 N. E. 885; Ex parte Kubaelc, 85 Cal. 274, 9 L. R. A. 482, 24 Pac. 737; hiske v. People, 188 Ill. 206, 52 L. R. A. 291, 58 N. E. 985; Seattle v. Smyth, 22 Wash. 327, 60 Pac. 1120; Low v. Rees Print¬ ing Co. 41 Neb. 127, 24 L. R. A. 702, 59 N. W. 362; Re Morgan, 26 Colo. 415, 47 L. R. A. 52, 58 Pac. 1071; State v. Loomis, 115 Mo. 307, 21 L. R. A. 789, 22 S. W. 350; State v. llaun, 61 Kan. 146, 47 L. R. A. 369, 59 Pac. 340; Re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; I’eople v. Marx, 99 N. Y. 378, 52 Am. Rep. 34, 2 N. E. 29; People v. GiUson, 109 N. Y. 389, 17 N. E. 343; Colon v. Lisle, 153 N. Y. 188, 47 N. E. 302; People ex rel. Tyroler v. Warden of City Prison, 157 N. Y. 116, 43 L. R. A. 204, 51 N. E. 1006; People ex rel. Treat v. Coler, 166 N. Y. 144, 59 N. E. 770; Godcharles v. Wige-
ment of the lower court was reversed, and the validity of the enactment sustained on the au¬ thority of I’eople v. Warren, 77 Hun, 120, 28 N. Y. Supp. 303, which the court said was the only authoritative expression of opinion hy the supreme court on this question, l’eople v. Orange County Road Constr. Co. 73 App. Div. 5NO, 77 N. Y. Supp. 16. When this case reached tlie New York court of appeals Cullen, J., in an opinion concurred in hy a hare majority of the court, said that the statute could not he upheld as an exercise of the police power because of the arbitrary distinction drawn between persons contracting with the state and other employers ; that the enactment could not be sustained be¬ cause the work to be done was state work, for the manner of performance of which the legis¬ lature might prescribe rules, because the act ap¬ plies to independent contractors, and no such right of regulation exists where the state has let out the performance of the work to a con¬ tractor, unless it is reserved in the contract ; and that, assuming that a statute might be up¬ held which purported to punish criminally the violation by a contractor of his contractual ob¬ ligation assumed because of the provisions of the labor law (N. Y. Laws 1897, chap. 415, § 3, as amended by Laws 1899, chap. 567), requiring municipal or state contracts to contain an eight- hour stipulation, the statute in question does not assume to punish an offender against its provi¬ sions because he has violated any contract, but solely because he has required more than eight hours’ labor regardless of the terms and condi¬ tions of the contract. 175 N. Y. 84, 67 N. E.
129. The force of these observations as furnish¬
ing an authoritative precedent is materially weakened because of the fact that the judge goes on to say that, assuming that the statute can be upheld as one inflicting punishment for the wilful violation of a contract, and that the statute ex propria vigore imported into every contract subsequently made an agreement by the contractor not to require more than eight hours' work a day from his employees, the in- 152
Oct. Term,
man, 113 Pa. 431, 6 Atl. 354; State v. Good¬ will, 32 W. Va. 179, 6 L. R. A. 621, 10 S. E. 285; State v. Fire Creek Coal & Coke Co. 33 W. Va. 182, 6 L. R. A. 359, 10 S. E. 288; People v. Hawkins, 157 N. Y. 1, 42 L. R. A. 490, 51 N. E. 275; Ramsey v. People, 142
111. 380, 17 L. R. A. 853, 32 N. E. 364;
Frorer v. People, 141 Ill. 171, 16 L. R. A. 492, 31 N. E. 395; Braceville Coal Co. v. People, 147 Ill. 66, 22 L. R. A. 340, 35 N. E. 62; Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79, 40 N. E. 454;
Gillespie v. People, 188 Ill. 176, 52 L. R. A. 283, 58 N. E. 1007; Re
Preston, 63 Ohio St. 428, 52 L. R. A. 523, 59 N. E. 101; Com. v. Perry, 155 Mass. 117, 14 L. R. A. 325, 28 N. E. 1126; Den¬ ver v. Bach, 26 Colo. 530, 46 L. R. A. 848, 58 Pac. 1089; Slate ex rel. Bramley v. Nor¬ ton, 5 Ohio N. P. 183; People v. Orange County Road Constr. Co. 175 N. Y. 84, 67 N. E. 129; Street v. Varney Electrical Sup¬ ply Co. (Ind.) 61 L. R. A. v154, 66 N. E.
895.
The argument that a contractor’s rights are not infringed because he is at liberty to bid or not to bid, as he may see fit, for
dictment was fatally defective for fail¬ ure to state that the contract therein referred to was made subsequent to the enactment of the statute. On this point, which clearly is suffi¬ cient to sustain the decision reversing the or¬ der appealed from and sustaining the demurrer to the indictment, all the judges, except Haight, J., dissenting, concurred. Indeed, the dissentient judge thought that the constitu¬ tional question was not decided at all in this case, as appears from this language from his dissenting opinion : “The question discussed upon the argument of this appeal was the con¬ stitutionality of the eight-hour clause of the statute. This was the question raised by the demurrer, and I think it should now be decided by this court. If questions other than this are to be now determined then I think a reargument should be ordered so that the court may have the aid to be derived from a careful discussion of the questions by counsel.”
IV. Women and children.
Statutes restricting the hours of labor for women and children have, with one exception, been sustained. The leading case is Com. v. Hamilton Mfg. Co. 120 Mass. 383, where a stat¬ ute prohibiting the employment of any woman or minor under eighteen years of age in a manu¬ facturing establishment for more than ten hours per day, except in certain cases, and in no case for more than sixty hours per week, was sus¬ tained as a valid health and police regulation.
An enactment of the Pennsylvania legisla¬ ture making it a penal offense to employ minors or females in any manufacturing establishment, mercantile industry, laundry, workshop, reno¬ vating works or printing office for more than twelve hours a day or sixty hours a week was upheld in Com. v. Beatty, 15 Pa. Super. Ct. 5, as a valid exercise of the police power.
A statute forbidding the employment of fe¬ males in mechanical or mercantile establish¬ ments, laundries, hotels, and restaurants more
191 TJ. S.
1903,
Atkin v. Kansas.
public work, would justify any discrimina¬ tion in which a legislature might see fit to indulge.
Marshall d B. Go. v. Nashville, 109 Tenn. 495, 71 S. W. 815.
Contracts for the paving of streets are matters pertaining to cities in their private corporate capacity.
Jansen v. Atchison, 16 Kan. 378; Shaw¬ nee County v. Topeka, 39 Kan. 197, 18 Pac. 161; Hari v. Ohio Ttcp. 62 Kan. 318, 62 Pac. 1010; Jones, Neg. Mun. Corp. § 58, pp. 110, 111; Lexington v. Thompson, 24 Ky. L. Rep. 384, 57 L. R. A. 775, 68 S. W. 477; People ex rel. Rodgers v. Coler, 166 N. Y. 13, 52 L. R. A. 814,' 59 N. E. 716; Cleveland v. Clements Bros. Constr. Co. 67 Ohio St. 197, 59 L. R. A. 775, 65 N. E. 885;
O’Rourke v. Sioux Falls, 4 S. D. 47, 19 L. R. A. 789, 54 N. W. 1044.
The theory upon which the supreme court of Kansas decided the case at bar was pre¬ sented and urged in support of the consti¬ tutionality of the eight-hour law of the state of Ohio.
Cleveland v. Clements Bros. Constr. Co.
than ten hours a day does not deprive them of life, liberty, or property, without due process of law. State v. Buchanan, 29 Wash. 602, 59 L. R. A. 342, 70 Pac. 52.
The Nebraska statute restricting the hours of labor for females in manufacturing, mechani¬ cal, and mercantile establishments, hotels, and restaurants to a maximum of sixty hours a week and ten hours a day is a legitimate exercise of the police power, and does not violate the consti¬ tutional guaranties of the personal and prop¬ erty rights of either employer or employee. Wenham v. State (Neb.) 58 L. R. A. 825, 91 N. W. 421. And such statute is not unconstitution¬ al as special or class legislation, since the law applies alike to all women who shall engage in labor In any of the establishments mentioned. Ibid.
The contrary view is strongly upheld in Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79, 40 N. E. 454, where a statute prohibiting the em¬ ployment of females in any factory or work¬ shop more than eight hours a day Is held to be unconstitutional as partial and discriminat¬ ing in its character, whether applying only to manufacturers of wearing apparel and like arti¬ cles, or as applying to manufacturers of all kinds of products ; and is further declared to be invalid as a purely arbitrary restriction upon the fundamental right of the citizen to control his or her own time and faculties, and a substi¬ tution of the legislative judgment for that of the employer and employee in a matter about which they are competent to agree with each other. To the contention that such statute was a proper exercise of the police power for the promotion of the public health on the ground that it is designed to protect women on account of their sex and physique, the court replied that sex is no bar, under the Illinois Constitution or laws, to the right to contract; that the mere fact of sex will not justify the exercise of the police power for the purpose of limiting the exercise of such rights by a woman, unless there is some fair, just, and reasonable connection between 191 U. S.
67 Ohio St. 197, 59 L. R. A. 775, 65 N. E.
887.
The court of appeals of Kentucky holds that the state cannot fix the compensation of city employees.
Lexington v. Thompson, 24 Ky. L. Rep. 384, 57 L. R. A. 775, 68 S. W. 477.
A municipality in its capacity as a pri¬ vate corporation exercises rights and powers inherent in the people of the community which have never been surrendered to any department of the government, and which are property rights within the protection of the Constitution.
State ex rel. Geake v. Fox, 158 Ind. 126, 56 L. R. A. 893, 63 N. E. 19; People ex rel. Park Comrs. v. Detroit, 28 Mich. 240, 15 Am. Rep. 202; Blades v. Detroit Water Comrs. 122 Mich. 366, 81 N. W. 271; Helena Consol. Water Co. v. Steele, 20 Mont. 1, 37 L. R. A. 412, 49 Pac. 382 ; People ex rel. Mc- Cagg v. Chicago, 51 Ill. 17, 2 Am. Rep. 278; Dill. Mun. Corp. 4th ed. p. 129; 13 Harvard Law Review, p. 441, Right to Local Self- Government; Slockwell v. Rutland (Vt. ) 53 Atl. 132; Peters v. Lindsborg, 40 Kan.
such limitation and the public health, safety, and welfare ; and that there is no reasonable ground why a woman should be deprived of the right to determine for herself how many hours each day she can and may work in an employ¬ ment conceded to be lawful in itself and suitable for her to engage in, even if the police power can be exercised to prevent injury to the individual engaged in a particular calling, which the court regarded as questionable. Referring to Com. v. Hamilton Mfg. Co. 120 Mass. 385, supra, the court said that such decision was evidently made in view of the large discretion vested by the Massachusetts Constitution in the legislative branch of the government to enact such stat¬ utes as it should judge to be for the “good and welfare of the commonwealth,” and that it was said therein that the act might be maintained as a health or police regulation, because the legisla¬ ture deemed the employment of manufacturing dangerous to health. The court added : “But the Massachusetts case is not in line with the current of authority, as it assumes that the po¬ lice power is practically without limitation. As has already been stated, the legislature cannot so use that power as to invade the fundamental rights of the citizen ; and it is for the courts to decide whether a measure which assumes to have been passed in the interest of the public health really ‘relates to, and is convenient and appro¬ priate to promote, the public health.’ ”
V. Sunday laios.
No attempt has here been made to collate the authorities respecting the validity of laws re¬ stricting labor on Sunday. The constitutional¬ ity of Sunday laws generally is discussed in a note to .Tudetind v. State, 22 L. R. A. (21.
What is and what is not unlawful Sunday la¬ bor are considered In a note to Quarles v. State, 14 L. R. A. 192.
The prohibition of Sunday sports or games is the title of a note to State v. O'Rourk, 17 L. R. A. 830.
153
Supreme Court of the United States.
Oct. Term,
207, 203
654, 20 Pac. 490; La Clef v. Concordia, 41 Kan. 323, 21 Pac. 272; Caldwell v. Prunclle , 57 Kan. 511, 46 Pac. 949.
The legal distinction between municipal corporations proper— cities — and quasi cor¬ porations has often been recognized and en¬ forced in the state of Kansas.
Beach v. Leahy, 11 Kan. 23; State ex ret. Godard v. Downs, 60 Kan. 790, 57 Pac. 962; Illinois Trust <£■ Sav. Bank v. Arkansas City, 34 L. R. A. 518, 22 C. C. A. 771, 40 U. S. App. 257, 76 Fed. 271; State ex rel. Godard v. Topelca Water Co. 61 Kan. 547, 60 Pac. 337 ; State ex rel. Aticood v. Hunter, 38 Kan. 582, 17 Pac. 177.
The provisions of the statute, in so far as they limit the hours of employment on public work, have no relation whatsoever to the public health, safety, or morals, and cannot be held valid as a police regula¬ tion.
People ex rel. Warren v. Beck, 10 Misc. 83, 30 N. Y. Supp. 473; State v. Martin- dale,
47 Kan. 147, 27 Pac. 852; Holden v. Hardy, 169 U. S. 365, 42 L. ed. 780, 18 Sup. Ct. Rep. 383.
Statutes regulating the hours of labor have been upheld as an exercise of the po¬ lice power of the state in three classes of cases: (1) Occupations injurious to the
heaJth of employees; (2) occupations in which women and children are employed; (3) occupations involving the public safety and welfare.
Holden ' v. Hardy, 169 U. S. 365, 42 L. ed. 780, 18 Sup. Ct. Rep. 383; Com. v. Ham¬ ilton Mfg. Co. 120 Mass. 383; People v. Phyfe, 136 N. Y. 554, 19 L. R. A. 141, 32 N. E. 978.
The statute in question is not justified because it is an encroachment upon the right of the individual employer and em¬ ployee to contract as they shall see fit.
Chicago, B. ct- Q. It. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581;
Forster v. Scott, 136 N. Y. 577, 18 L. R. A. 543, 32 N. E. 976; People v. Orange County Road Constr. Go. 175 N. Y. 84, 67 N. E. 129; People ex rel. Rodgers v. Coler, 166 N. Y. 18, 52 L. R. A. 814, 59 N. E. 716.
Messrs. C. C. Coleman and N. H. Loomis submitted the cause for defendant in error:
Whenever assailed the law has received the sanction of the highest courts of the state.
In enacting the law in question, the legis¬ lature of Kansas hut followed the precedent of the general government, as shown by the act of Congress declaring that “eight hours
154
shall constitute a day’s work for all work¬ men employed by or on behalf of the gov¬ ernment of the United States,” which enact¬ ment was upheld by this qourt.
United States v. Martin , 94 U. S. 400,
24 L. ed. 128.
Cities and other municipal organizations, in so far as their control of highways is concerned, are but agencies of the state for the exercise of its governmental functions.
Re Dalton, 61 Kan. 264, 47 L. R. A. 380,
59 Pac. 336.
This court has often announced a similar doctrine.
Williams v. Eggleston, 170 U. S. 310, 42 L. ed. 1049, 18 Sup. Ct. Rep. 617; Kelly v. Pittsburgh, 104 "U. S. 78, 26 L. ed. 658; Forsyth v. Hammond, 166 U. S. 518, 41 L. ed. 1100, 17 Sup. Ct. Rep. 665.
It is not a case where the law seeks to in¬ terfere with contracts between citizens, but it is one in which the state itself is a party to the contract through one of its lawful agencies.
People ex rel. Warren v. Beck, 10 Misc.
77, 30 N. Y. Supp. 473; People ex rel. Rod¬ gers v. Coler, 116 N. Y. 1, 52 L. R. A. 814,
59 N. E. 727.
Unless it appears from the law itself, or from the facts of the case at bar, that some discrimination is exercised or exerted against the plaintiff himself, he cannot be heard to say, in opposition to the law, that the rights of some other person or class of persons are infringed by it.
State v. Sm iley, 65 Kan. 240, 69 Pac. 199; Kansas City v. Union P. R. Co. 59 Kan. 427,
52 L. R. A. 321, 53 Pac. 408; Clark v. Kan¬ sas City,\lQ U. S. 114, 44 L. ed. 392, 20 Sup.
Ct. Rep. 284; Albany County v. Stanley,
105 U. S. 305, 26 L. ed. 1044; Pittsburgh,
C. C. & St. L. R. Co. v. Montgomery, 152 Ind. 1, 49 N. E. 582.
The paving of a street is a governmental power.
Branson v. Philadelphia., 47 Pa. 329 ;
State ex rel. Atty. Gen. v. Shawnee County,
28 Kan. 431.
Mr. Justice Harlan delivered the opinion of the court:
This case involves the validity under the Constitution of the United States of the statute known as the eight-hour law of Kan¬ sas of 1891, chap. 114, being §§ 3827, 3828, and 3829 of the General Statutes of 1901 of that state.
By the 1st section of that act it was pro¬ vided that “eight hours shall • constitute a day’s work for all laborers, workmen, *me-