the kind being considered are obnoxious to the Constitution of a state, is treated in the following cases:

The statute of Kansas providing that eight hours shall constitute a day's work for all laborers, workmen, mechanics, and other persons employed by or on behalf of the state, or by or on behalf of any county, city, township, or other municipality in the state, is a direction of the state to its agents, by which the state declares that all such laborers, etc., engaged in its service shall not work thereunder more than eight hours per day, and is, consequently, constitutional and valid. Re Dalton, 61 Kan. 257, 47 L. R. A. 380, 59 Pac. 336.

A statute which provides that "no minor under the age of eighteen years, and no woman over that age, shall be employed in laboring, by any person, firm, or corporation, in any manufacturing establishment more than

ten hours in any one day" violates no right of a woman to labor in accordance with her own judgment as to the number of hours, as it does not limit her right to labor as many hours per day or per week as she may desire, or forbid her laboring in any particular business or occupation as many hours per day or per week as she may desire, but merely prohibits her being employed continuously in the same service more than a certain number of hours per day or week, which is clearly within the power of the legislature. Com. v. Hamilton Mfg. Co. 120 Mass. 383.

In answer to a question by the house of representatives whether a statute providing that eight hours should constitute a day's labor in all mines, factories, and smelters would be constitutional and legal, the supreme court of Colorado said that the bill violated the right of parties to make their own contracts, a right guaranteed by the Bill of Rights of Colorado and protected by the 14th Amendment of the Constitution of the United States. The court further said: "For an able and comprehensive exposition of the constitutional provisions applicable to the subject, your attention is invited to the recent case of Low v. Rees Printing Co. 41 Neb. 127, 24 L. R. A. 702, 43 Am. St. Rep. 670, 59 N. W. 362," supra, II. a, 2. Re Eight Hour Law, 21 Colo. 29, 39 Pac. 328.

A statute making it unlawful to work more than eight hours per day in mines or smelters is in violation of Const. art. 2, § 3, guaranteeing liberty and the right to acquire, possess, and

protect property. Re Morgan, 26 Colo. 415, 47 L. R. A. 52, 77 Am. St. Rep. 269, 58 Pac. 1071.

The privilege of contracting is both a liberty and a property right of which one cannot be deprived without due process of law; and the right to labor or employ labor, and make contracts in respect thereto upon such terms as may be agreed upon, is included in the guaranty of Const. art. 2, § 2, that no person shall be deprived of life, liberty, or property without due process of law. Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79, 46 Am. St. Rep. 315, 40 N. E. 457.

And a statute providing that no female shall be employed in any factory or workshop more than eight hours in any one day, or forty-eight hours in any one week, prohibits both the employer and employee from entering into a contract of employment for a greater time, and restricts their right to contract with each other with reference to the hours of labor. Ibid.

The legislature, in undertaking to impose an unreasonable and unnecessary burden upon any one citizen or class of citizens, transcends the authority intrusted to it by the Constitution, although it imposes the same burden upon all other citizens or class of citizens. Ibid.

A statute prohibiting the employment of females in any factory or workshop more than eight hours a day is unconstitutional as a purely arbitrary restriction upon the fundamental right of the citizen to control his or her own time and faculties, and a substitution of the legislative judgment for that of the employer and employee in a matter about which they are competent to agree with each other. Ibid.

The right to make contracts is inherent and inalienable under Const. art. 2, § 1, declaring that all men are by nature free and independent, and have certain inherent and inalienable rights, among which are life, liberty, and the pursuit of happiness; and any attempt unreasonably to abridge it is unconstitutional. Ibid.

A statute which provides that ten hours shall constitute a day's work, and that the employees therein named shall be paid for every hour in excess of ten which they shall be required or permitted to work in addition to their per diem, is unconstitutional, as it infringes directly both the spirit and letter of § 1 of the Bill of Rights, providing that all men have certain inalienable rights, among which are

person who, having contracted with the state or a municipality not to require or suffer his employees or workmen to labor more than eight hours a day, should violate that agreement, then the question discussed would be presented. Prior to and at the time of the enactment of the section of the Penal Code, no law had ever required municipal or state contracts to contain any stipulation as to the time the contractors' workingmen should be suffered or required to labor. The labor law, as originally passed, on the same day, authorized, in express terms, overwork for extra compensation in the performance of state and municipal contracts. The penal statute draws no distinction between contractors whose contracts had been made prior to its enactthose of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety. Wheeling Bridge & Terminal R. Co. v. Gilmore, 8 Ohio C. C. 658.

In State ex rel. Bramley v. Norton, 5 Ohio N. P. 183, the Ohio common pleas held that an ordinance of a city which provided that the specifications prepared by the head of any department of the executive branch of a municipality for any public work or improvement, and upon which, under proper advertisement, bids should be received for the performance of such work or the making of any such improvement, should have inserted therein a clause providing that any and all common labor performed on such work, or the making of any such improvement, as might be contemplated, and in the pursuance of any such specifications, should not exceed eight hours per day, was in conflict with the Bill of Rights in the Ohio Constitution, and also with § 1 of the 14th Amendment of the Constitution of the United States. . The court took the position that this was not a case where the occupation or industry pursued was injurious to either the morals, health, safety, or welfare of the public; and so by inference admitted that, in case it were, the ordinance would have been valid under the police power of the legislature.

In an action by a contractor with a city to recover a balance claimed to be due in his favor from the city as the unpaid balance of the contract price for the construction of a sewer for the city, such contract containing a stipulation, as required by the act of the legislature to provide for limiting the hours of daily service of laborers, workmen, and mechanics employed upon public works of, or the work done for, the state of Ohio, or any political subdivision thereof, providing for the viollation of certain stipulations in contracts of public works, and imposing penalties for violations of the provisions of the act, and providing for the enforcement thereof, that said contractor should not require or permit any of his employees to labor more than eight hours in any one day, and, as a penalty for a violation of such stipulation, the forfeiture of $10 for each employee who should be required or permitted to work more than eight hours in any one calendar day,-where by way of answer, and as and for its only defense, such city relies upon and pleads its right to withhold and

ment, and those who might contract subsequently. To fall within its provisions, it was sufficient that on the day after its enactment a contractor should require more than eight hours' work a day though he was engaged in the performance of a contract years old, and containing no agreement relating to the hours of labor. The statute does not assume to punish an offender against its provisions because he has violated any contract, but solely because he has done the prohibited act, i. e., required more than eight hours' labor, regardless of the terms and conditions of his contract. The statute should therefore be condemned in its entirety, and cannot be upheld as to the limited class of cases in which it may be the legislature had the power to act, but retain from such contractor by way of forfeiture, and as penalty for his breach of such stipulation, an amount equal to the amount claimed by said contractor to be due him on said contract, such answer is demurrable, as the act is obnoxious to the Constitution of the state, violating and abridging, as it does, the right of parties to contract as to the number of hours' labor which shall constitute a day's work, and invades and violates the right both of liberty and of property, as it takes from municipalities and contractors and subcontractors the right to agree with their employees upon the question as to the number of hours which shall constitute a day's work. Cleveland v. Clements Bros. Constr. Co. 67 Ohio St. 197, 59 L. R. A. 775, 93 Am. St. Rep. 670, 65 N. E. 885.

See People v. Lochner, 177 N. Y. 145, 69 N. E. 373, supra, II. a, 1.

III. Police power of state.

In order to sustain the validity of statutes which would otherwise be plain and clear violations of the Federal or a state Constitution, what is commonly known as the "police power" of the state, is invoked. This power has been variously defined as that which is vested in the legislature to make such laws as it shall judge to be for the public good; the power to govern men and things, extending to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property, within the state; the authority to establish such rules and regulations for the conduct of all persons as may be conducive to the public interests. The exercise of it has generally been left with the individual states, but in such exercise a state may not invade the domain of the national government. Most of the law on the subject of police power has been the growth of the nineteenth century, and it may be said of the latter half of it. It must always be distinguished from the administration of criminal law, and from police regulations and police authority; nor should it be confused with eminent domain, as has sometimes been done, or with the power of taxation, as it is distinct from both. Three general rules, or rather questions, are said to be involved in considering whether a law is within the "police power:" First, Is there a threatened danger? Second, Does the regulation involve a constitutional right? Third, Is the regulation reasonable?

The police power of the state is that power which enables it to promote the health, comfort, safety, and welfare of society. Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79, 46 Am. St. Rep. 315, 40 N. E. 457.

It is the province of the courts to determine whether a statute purporting to be an exercise of the police power of the state, but taking away the property of a citizen or interfering with his personal liberty, is an appropriate measure for the promotion of the comfort, safety, and welfare of society. Ibid.

Statutes passed in pursuance of the police power of the state must not conflict with the Constitution, and must have some relation to the end sought to be accomplished; and, where their ostensible object is to secure the public comfort, welfare, or safety, they must appear to be adapted to that end, and cannot invade the rights of person and property under the guise of a police regulation where they are not such in fact. Ibid.

And so a statute prohibiting the employment of women in factories or workshops for more than eight hours a day cannot be sustained as a police regulation for the promotion of the public health, on the ground that it is designed to protect women on account of their sex and physique, as sex is no bar, under the Illinois Constitution or laws, to the right to contract, and the mere fact of sex will not justify the exercise of the police power for the purpose of limiting the exercise of such right by a woman, unless there is some fair, just, and reasonable connection between such limitation and the public health, safety, or welfare; and there is no reasonable ground why a woman should be deprived of the right to determine for herself how many hours during each day she can and may work in an employment conceded to be lawful in itself and suitable for her to engage in, even if the police power can be exercised to prevent an injury to the individual engaged in a particular calling. Ibid.

It is for the courts to determine what are the subjects upon which the police power are to be exercised, and the reasonableness of that exercise; and legislation to protect a citizen against the consequences of his own acts is not within the constitutional exercise of the police power. Re Morgan, 26 Colo. 415, 47 L. R. A. 52, 77 Am. St. Rep. 269, 58 Pac. 1071.

The ordinance of a municipality prohibiting the carrying on of public laundries and wash

But if we assume that the statute can be upheld as one inflicting punishment for the wilful violation of a contract, and if we further assume that the statute, ex proprio vigore, imported into every contract subsequently made an agreement by the contractor not to require more than eight hours' work in a day from his employees, the indictment would still be fatally defective. houses within certain prescribed limits of the municipality, from 10 o'clock at night until 6 o'clock in the morning, is purely a police regulation within the competency of any municipality possessed of the ordinary powers to make. Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357.

And a Federal tribunal cannot supervise such regulation; any correction of the action of municipal bodies in such matters can come only from state legislation or state tribunals. Ibid.

The right of contract is subject to certain limitations which the state may lawfully impose in the exercise of its police power; and the protection of the health and morals, as well as the lives, of citizens is within the police power of the state legislature. Holden V. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383, Affirming 14 Utah, 71, 37 L. R. A. 103, 46 Pac. 756, and 14 Utah, 96, 37 L. R. A. 108, 46 Pac. 1105.

And so a state statute limiting the period of workmen in underground mines, or in the smelting, reduction, or refining of ores, or metals, to eight hours per day, and making its violation a misdemeanor, is a valid exercise of the police power of the state; and the fact that both parties are of full age, and competent to contract, does not necessarily deprive the state of the power to interfere, where the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself. Ibid.

A limitation of the duration of a day's work in certain employments known as the "eighthour law," is a valid exercise of the police power of the state, and creates for the employee a legislative protection which is without his power to waive. Short v. Bullion-Beck & C. Min. Co. 20 Utah, 20, 45 L. R. A. 603, 57 Pac. 720.

An act which provides that no adult woman shall be employed at labor, or detained in any manufacturing establishment, mercantile industry, laundry, workshop, renovating works, or printing office, for any longer period than twelve hours in any day, or for a longer period than sixty hours in any week, is clearly within the police power of the state which, while it cannot be put forward as an excuse for oppressive and unjust legislation, may be lawfully resorted to for the purpose of preserving

To make out an offense under this view of the law, it would be necessary to charge that the contractor, in one way or the other, either by express agreement or by force of the statute, contracted not to require more than eight hours' labor. The indictment does not charge any stipulation to that effect in the contract, nor does it charge that the contract between the defendant and the county of Orange was made subsequent to the enactment of the statute. There is nothing, therefore, alleged, which charges that the defendant, by requiring more than eight hours' labor, violated any provision of his contract, either express or implied. The order should be reversed, the demurrer sustained, and the defendant discharged.

Bartlett, Martin, and Vann, JJ., concur with Cullen, J. Parker, Ch. J., and Werner, J., concur in the result, on the sole ground that the indictment is insufficient, because it fails to allege that the contract therein referred to was made subsequent to the enactment of the statute; but they dissent from even the expression of a doubt as to the power of the state to enforce its constitutional mandate by making a violation thereof a crime, whether such viola

the health, safety, or morals; and a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests. The object of such legislation is the good of the public as well as of the individual; and the fact that the individual is willing to waive protection cannot avail. The public good is entitled to protection and consideration; and, in order to effectuate that object, there must be enforced protection to the individual,—such individual must submit to such enforced protection for the public good. Com. v. Beatty, 15 Pa. Super. Ct. 5.

In Wenham v. State, 65 Neb. 394, 58 L. R. A. 825, 91 N. W. 421, the court said: "The police power of the state cannot be put forward as an excuse for oppressive and unjust legislation, but it may be lawfully resorted to for the purpose of preserving the public health, safety, or morals; and a large discretion is vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests."

tion arises under a contract with the state or otherwise.

Haight, J., dissenting:

The demurrer to the indictment relied upon is to the effect that the facts stated therein do not constitute a crime, for the reason that the first subdivision of § 384h of the Penal Code, under which the indictment was drawn, is unconstitutional and void. The question, therefore, raised for consideration is the constitutionality of that act, and no other question is presented for determination. Whether the indictment is defective in failing to charge certain facts, or the statute is wanting in some particular to make it effective, are questions with which we have nothing to do upon this review. The question discussed upon the argument of this appeal was the constitutionality of the eight-hour clause of the statute. This was the question raised by the demurrer, and I think that 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.

all reasonably intelligent people of the present age that continuous standing on the feet, by women, for a great many consecutive hours is deleterious to their health. It must logically follow, that which would deleteriously affect any great number of women, who are to be the mothers of succeeding generations, must necessarily affect the public welfare and the public morals. State v. Buchanan, 29 Wash. 602, 59 L. R. A. 342, 92 Am. St. Rep. 930, 70 Pac. 52. A statute which makes it unlawful for persons engaged in mining for minerals, or making excavations beneath the surface of the earth while searching therefor, to work their hands or employees at such labor or industry longer than eight hours in a day of twenty-four hours, and providing a penalty therefor, is a proper exercise of the police power of the legislature, exercised in the interest of the health and safety of such employees. To hold that the performance of work in underground mines, in a deep mineral shaft full of smoke and necessarily damp, is not attended with danger to health, but is equally healthy with the ordinary pursuits in the open, fresh air and light, is simply a position opposed to all natural laws of health. State v. Cantwell (Mo.) 78 S. W. 569.

IV. Right to cætra compensation for labor in excess of limited time.

It is a matter of universal knowledge with

As will be seen by the cases in the succeeding division, the question has not infrequently arisen, whether, in those jurisdictions where there exists a statute regulating or lim

forms labor or service in excess of the limited time can recover for such excess in the absence of an agreement to that effect. And, as will also be seen, it has almost invariably been decided that no action for such excess can be

1.

Re William G. BOYCE.

( . . . . . . Nev. . . . . . )

The act of February 23, 1903, providing an eight-hour day for all workingmen in mines, smelters, and mills for the reduction of ores, is not void, under § 1 of article 1 of our state Constitution, guaranteeing to citizens the right to acquire and possess property; nor is the statute in conflict with § 21 of article 4, which provides that, in all cases where a general law can be made applicable, all laws must be general and of uniform operation throughout the state. 2. Nor is the act mentioned inimical to the 14th Amendment to the Federal Constitution, which provides that "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 or liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law."

3. The people, and through them the legislature, have supreme power in all matters of government where not prohibited by constitutional limitations; and, while *Headnotes by TALBOT, J.

maintained without an agreement to pay for the

same.

The act of Congress declaring "that eight hours shall constitute a day's work for all laborers or workmen employed by or on behalf of the government of the United States" is in the nature of a direction by the United States to its agents; and is not a contract with laborers to that effect, and does not prevent the officers of the government from making agreements with laborers by which the day's labor may be more or less than eight hours a day. United States v. Martin, 94 U. S. 400, 24 L. ed. 128, Reversing 10 Ct. Cl. 276; Averill v. United States, 14 Ct. Cl. 200.

And so where a laborer has been in the habit of working for the government twelve hours a day at a certain compensation per day, and, in answer to his request, is informed that, if he wishes to remain in the service, he must continue to work twelve hours per day, and receives his pay accordingly, he cannot after wards recover for the additional time over eight hours as a day's labor. United States v. Martin, 94 U. S. 400, 24 L. ed. 128, Reversing 10 Ct. Cl. 276.

Where a contractor with the United States employed a laborer in work on the contract, and was to pay him, there was no privity between the laborer and the United States, to sustain a claim for wages, as the mode, manner, and rate of the contractor's compensation were a matter between him and the United States, and were one with which the laborer had nothing to do; and a claim against the government, by the laborer, to the effect that he had labored ten hours per day on the contract, and claiming of the government remuneration for the extra additional two hours, will not be allowed. United States v. Driscoll, 96 U. S. 421, 24 L. ed. 847.

the powers of the Federal government are restricted to those delegated, those of the state government embrace all that are not forbidden.

4. All acts of the legislature are presumed to be valid until it is clearly shown that they violate some constitutional restriction.

5. The legislature has inherent authority, under the general police power of the state, to enact laws for the promotion of the health, safety, and welfare of the people, and its arm cannot be stayed when exercised for these purposes.

6. If the restriction of the hours of labor be deemed a regulation or limitation on the right to acquire property, the occupations to which the act applies are not considered healthful; and it was therefore within the power and discretion of the legis lature to enact the statute for the protection of the health and prolongation of the lives of the workingmen affected, and the resulting welfare of the state.

7. Questions relating to the wisdom, policy, and expediency of statutes are for the people's representatives in the legislature assembled, and not for the courts, to determine.

(Belknap, Ch. J., dissents.)

(January 11, 1904.)

Under U. S. Rev. Stat. § 3499, U. S. Comp. Stat. 1901, p. 2339, providing that the workmen in the mints should be employed at wages: "to be determined by the director of the mints" the government will not be held responsible to a watchman who is on duty twelve hours each day, where the director, did not agree to pay him for the time beyond eight hours per day. Collins v. United States, 24 Ct. Cl. 340.

Where a state statute provided that ten hours of actual labor should be a legal day's work unless the contract stipulated for a longer time, and there was no stipulation in words between the parties as to the number of hours which should constitute a day's work, one who was employed by a paper company as a laborer in its pulp mill from March to December, which mill was run the whole twenty-four hours by a day crew and night crew, the men in each crew alternating each week in their work,-those who worked in the day time in one week working in the nighttime in the succeeding week, who had worked in this manner during the term of his employment, and knew when he began work that there were two crews working in the manner described; and who, with the other workmen, received his pay of a sum per day agreed upon between him and the company for each day he had been employed during the week, and at no time of payment complained or objected that he had not received the correct amount due him, and made no claim for payment for labor performed in over hours until after his employment had terminated,-cannot afterward recover pay for the extra hours, as an agreement is express none the less that it is expressed by conduct, and not by words. Fitzgerald v. International Paper Co. 96 Me. 220, 52 Atl. 655.

The provision of a statute that the period of employment of working men in all under