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Texas.

1865-66, chap. 18, p. 85. Legitimating

children of slaves. 182

Constitution.

Henning's Statutes, 1619-1660.

Art. 1, $ 5. Competency of witness ......
323 Vol. 1, p. 123. Sunday law

687
Code of Criminal Procedure.

Revised Code.
Art. 763. Evidence in criminal actions :. 323

Vol. 1, p. 59. Concurrent jurisdiction over

Art. 768. Competency of witness

323

waters

969

Penal Code.

Washington.

Art. 34. Children not punishable

323

Art. 423. Defining "nuisance"

819

Constitution.

White's Annotated Penal Code.

Art. 1, $ 12. Equal privileges

341

$ 1106. Penetration

321

Art. 7, § 1. Taxation of property

339

Art. 11, $ 9. Release from state taxes 342

Utah.

Statutes.

Constitution.

1895, p. 105, chap. 61. Migratory stock

act

340

Art. 1, $ 1. Inherent and inalienable rights 311 1895, pp. 114, 115, chap. 65. Grant of writ
Art. 1, 7. Due process of law

311

of review

341
Art. 16, 8 6. Health and safety of em-

1899, p. 295, chap. 141, $ 12. Tax on mer-

ployees in mines, etc. 55

chandise

330

Session Laws.

1901, p. 222, chap. 109. Sale of goods in
bulk

316
1896, p. 219, chap. 72. Regulation of em-

Ballinger's Annotated Codes & Statutes.

ployment in under-

ground mines

55 Vol. 2, S$ 4828, 4838. Action for wrongful

1901, March 14, p. 67, chap. 67. Inventory

death

336

of merchandise be- Vol. 2, $ 5741. Grant of writ of review 341
fore sale

Vol. 3, $ 1740a. Tax on merchandise 330

Pierce's Code.

Vermont.

Chap 59. Issuance of writ

341

$1306. Grant of writ of review

341

Slalutes,

$ 86 79. Tax on merchandise

339

$ 1101. Attachment of real estate

328

$ 1103. Attachment of personal property 328

West Virginia.

$ 1108. Removal of property attached 328

Virginia.

Code, 1899.

Chap. 99, $ 10. Action of assumpsit 344

617

Chap. 110, $ 1.

Statutes.

Writ of prohibition

Chap. 151, $ 1. Keeping gaming tables 617

1789, Dec. 18. Admission of Kentucky .. 969 Chap. 155. Search warrants

618

65 L. R. A.

309

LAWYERS' REPORTS

ANNOTATED.

NEW YORK COURT OF APPEALS.

PEOPLE of the State of New York, Respt., | A PPEAL by defendant from a judgment

of

even

v. ORANGE COUNTY ROAD CONSTRUC-preme Court, Second Department, reversing TION COMPANY, Appt.

a judgment of the Orange County Court

which sustained a demurrer to an indict(175 N. Y. 84.)

ment charging defendant with violation of

the statute limiting the hours of labor. 1. The state cannot forbid independent contractors, performing

Reversed.

work for it, to require their employees to The facts are stated in the opinion. labor more than a specified number Mr. William D. Guthrie, for appelof hours per day, either under its police lant: power, or on the ground that the legislature

The statute deprives the defendant cormay prescribe rules for the manner in which state work shall be performed.

poration of liberty and property without 2. A statute prescribing a penalty for

due process of law, and denies to it the requiring more than a certain num- equal protection of the laws, and, therefore, ber of hours' labor from employees en- is in conflict with the state and national gaged in performing work for the state, Constitutions. which is void because applying to all per

Holdon v. Hardy, 169 U. S. 366, 395, 398, sons generally, cannot be enforced,

42 L. ed. 780, 792, 793, 18 Sup. Ct. Rep. against persons who have contracted not to exact more than specified labor.

383; People v. Lochner, 73 App. Div. 120, 3. An indictment for violating a stat

76 N. Y. Supp. 396; People v. Phyfe, 136 ute prohibiting the breach of a con- N. Y. 554, 19 L. R. A. 141, 32 N. E. 978; tract not to exact more than a spec- | Com. v. Hamilton Mfg. Co. 120 Mass. 383; ified number of hours of labor per

Wenham v. State, 65 Neb. 394, 58 L. R. A. day from persons engaged on state work

825, 91 N. W. 421; Ritchie v. People, 155 must show the existence of an express contract, or that the accused was bound by an

Ill. 98, 29 L. R. A. 79, 46 Am. St. Rep. 315, implied one, by force of statute or otherwise. 40 N. E. 454.

The constitutional guaranty was adopted (Haight, J., dissents.)

for the purpose of securing individual (April 28, 1903.)

rights, and protecting all persons against NOTE.--Limitation of hours of labor by statute several decisions in which statutes which in or ordinance.

any way change or limit the hours or time of

labor are variously construed and applied, as1. General construction and application of suming that the same are valid and do not statute, 33.

offend any of the provisions of either the FedII. Constitutionality of statute.

eral or a state Constitution. a. Under Federal Constitution.

Where a state statute provides “that eight 1. In general, 38.

hours shall constitute a day's work for all la2. Due process of law, 40.

borers, workingmen, mechanics, or other per3. Equal protection of the laws,

sons now employed, or who may hereafter be 42.

employed, by or on behalf of the state of Kan4. Impairing obligation of contract,

sas, or by or on behalf of any county, city, 42.

township, or other municipality of said state, b. Under state Constitution, 42.

except in

cases of extraordinary emergency, 111. Police power of state, 44.

etc.," an ordinance of a city which requires IV. Right to extra compensation for labor in

male residents between the ages of twenty-one ercess of limited time, 46.

and forty-five years to perform two days' work V. Criminal liability for violation of statute,

of ten hours a day on the public streets, or pay 50.

$3 in lieu thereof, is invalid as being obnoxious I. General construction and application of stat.

to the provisions of the statute. Re Ashby, 60 ute.

Kan. 101, 55 Pac. 336.

A city, in contracting to pave a public street, In the following division will be found the exercises delegated authority, and acts as an

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"the arbitrary exercise of the powers of S. 356, 369, 30 L. ed. 220, 226, 6 Sup. Ct. government, unrestrained by the established Rep. 1064; Lautori v. Steele, 152 U. S. 133, principles of private rights and distributive 137, 38 L. ed. 385, 388, 14 Sup. Ct. Rep. justice.”

499; Allgeyer v. Louisiana, 165 U. S. 578, Bank of Columbia v. Okely, 4 Wheat. 589, 41 L. ed. 832, 835, 17 Sup. Ct. Rep. 235, 244, 4 L. ed. 559, 561.

427. The words "liberty and property” were The statute before the court, which preused in the Constitution in a comprehensive, vents a class of employers from contracting not a restricted, sense. They include the freely with their employees in the manner right of everyone to live and work where permitted to other employers of like labor, he will, to earn a livelihood in any lawful deprives that class of liberty and property way, to pursue any lawful trade or voca- without due process of law. tion, to contract with freedom in respect McCarihy v. New York, 96 N. Y. 1, 48 of his labor or his property, to exercise his Am. Rep. 601; People ex rel. Rodgers v. faculties in all lawful ways, to do any act Coler, 166 N. Y. 1, 52 L. R. A. 814, 82 Am. not injurious to the community; and any St. Rep. 605, 59 N. E. 716; Cleveland v. statute unnecessarily depriving him of the Clements Bros. Constr. Co. 67 Ohio St. 197, free exercise of these rights is not due proc. 59 L. R. A. 775, 93 Am. St. Rep. 670, 65 ess of law, and will be set aside by the N. E. 885; Ex parte Kuback, 85 Cal. 274, courts.

9 L. R. A. 482, 20 Am. St. Rep. 226, 24 Re Jacobs, 98 N. Y. 98, 50 Am. Rep. Pac. 737; Low v. Rees Printing Co. 41 Neb. 636; People v. Marx, 99 N. Y. 377, 52 127, 24 L. R. A. 702, 43 Am. St. Rep. 670, Am. Rep. 34, 2 N. E. 29; People v. Gillson, 59 N. W. 362; Rc Morgan, 26 Colo. 415, 47 109 N. Y. 389, 4 Am. St. Rep. 465, 17 N. E. L. R. A. 52, 77 Am. St. Rep. 269, 58 Pac. 343; Colon v. Lrisk, 153 N. Y. 188, 60 Am. 1071; Re Eight-Hour Law, 21 Colo. 29, 39 St. Rep. 609, 47 N. E. 302; People ex rel. Pac. 328; Seattle v. Smyth, 22 Wash. 327, Tyroler v. Warden of City Prison, 157 N. 79 Am. St. Rep. 939, 60 Pac. 1120; Ritchie Y. 116, 43 L. R. A. 264, 68 Am. St. Rep. v. People, 155 Ill. 98, 29 L. R. A. 79, 46 763, 51 N. E. 1006; People ex rel. Rodgers An. St. Rep. 315, 40 N. E. 454; Colon v. v. Coler, 166 N. Y. 1, 52 L. R. A. 814, 82 Lisk, 153 N. Y. 188, 60 Am. St. Rep. 609, Am. St. Rep. 605, 59 N. E. 716; People ex 47 N. E. 302. rel. Treat v. Coler, 166 N. Y. 144, 59 N. E. The statute in question also denies to 776; Butchers' Union S. H. & L. S. L. Co. v. the parties interested the equal protection Crescent City L. . L. & S. H. Co. 111 U. of the laws. S. 746, 756, 757, 28 L. ed. 585, 590, 591, 4 Sup. People v. Havnor, 149 N. Y. 195, 31 L. R. Ct. Rep. 652; Yick Wo v. Hopkins, 118 U. A. 689, 52 Am. St. Rep. 707, 43 N. E. 541; agent for the state ; and the latter does not, by work for all classes of employees in the state, authorizing the mayor and council to lay the except those engaged in farm and domestic pavement, surrender its paramount authority service, unless otherwise provided by law, as over the contract for the city streets. The $ 3 refers only to an employee, as defined by $ fact that abutting property owners are charged 2,—that is, “mechanic, workingman, or laborer more for the improvement by the application of who works for another for hire ;'as it is ob the restrictive provisions of the law reducing vious that the legislature did not intend to the hours of labor may be admitted, yet, if include the uniformed members of the fire dethe work had been done by the state itself, partment within the act. The word "hire" which has supreme authority in such matters, evidently does not relate to public officers, or the property owners could not complain that others holding positions under the city, who it employed and paid its servants conformably are included in the classified lists of the civilto the statute in question ; and so one who, service law, such as the uniformed members of under a contract with the authorities of a city, the fire department, who are appointed to popermits any of its employees engaged on the sition after rigid examination and from comwork to labor more than eight hours per day petitive lists. No contract of hiring is made is liable to the penalties of what is known as

with them. They receive annual salaries, not the eight-nour law of Kansas. State v. Atkin, wages, either in the common or legal accepta64 Kan. 174, 97 Am. St. Rep. 343, 67 Pac. tion of the term. And a writ of mandamus 319.

to command the fire commissioner of the city Voluntary service for excessive hours is for. “to carry into effect, execute, and enforce the bidden by a statute which expressly states that provisions of the labor law, .. and to its purpose is to limit the usual hours of la- so regulate the rules and regulations of the bor of street-car employees, although it merely fire department that engineers and firemen thereforbids officers of the corporation to exact more of shall not be assigned to more than eight than a certain number of hours per day. Re hours' duty in any one calendar day," was reTen-Hour Law, 24 R. I. 603, 61 L. R. A. 612, fused. People er rel. Sweeney v. Sturgis, 78 54 Atl. 602.

App. Div. 460, 79 N. Y. Supp. 969. A fireman of the city of New York is not in- In Worthington v. Breed, 142 Cal. 102, 75 cluded within the provisions of $8 2 and 3 of Pac. 673, plaintiff filed his verified petition for the Laws of 1897, chap. 415, as amended by a writ of mandate, alleging that he performed chap. 298 of the Laws of 1900, which provides certain services for a city of which the dethat eight hours shall constitute a legal day's I fendant was auditor, in pursuance of a

conV.

Connolly v. Union Sewer Pipe Co. 184 U. State ex rel. Bramley v. Norton, 5 Ohio N. S. 540, 560, 46 L. ed. 679, 690, 22 Sup. Ct. P. 183; Godcharles. v. Wigeman, 113 Pa. Rep. 431; Cotting v. Kansas City Stock 431, 6 Atl. 354; State v. Cadigan, 73 Vt. Yards Co. 183 U. S. 79, 87, 46 L. ed. 92, 245, 57 L. R. A. 666, 87 Am. St. Rep. 714, 100, 22 Sup. Ct. Rep. 30; Gulf, C. & 8. F. 50 Atl. 1079; Seattle v. Smyth, 22 Wash. R. Co. v. Ellis, 165 U. S. 150, 154, 155, 41 | 327, 79 Am. St. Rep. 939, 60 Pac. 1120; L. ed. 666, 668, 17 Sup. Ct. Rep. 255; Yick State v. Goodwill, 33 W. Va. 179, 6 L. R. A. Wo v. Hopkins, 118 U. S. 356, 369, 30 L. 621, 25 Am. St. Rep. 863, 10 S. E. 285; ed. 220, 226, 6 Sup. Ct. Rep. 1064; Niagara State v. Fire Creek Coal & Coke Co. 33 W. F. Ins. Co. v. Cornell, 110 Fed. 816; Shaver Va. 188, 6 L. R. A. 359, 25 Am. St. Rep. v. Pennsylvania Co. 71 Fed. 931; Leep v. 891, 10 S. E. 288; State ex rel. Zillmer v. St. Louis, I. M. S. R. Co. 58 Ark. 407, Kreutzberg, 114 Wis. 530, 58 L. R. A. 748, 23 L. R. A. 264, 41 Am. St. Rep. 109, 25 S. 91 Am. St. Rep. 934, 90 N. W. 1098. W. 75; Re Eight-Hour Lau, 21 Colo. 29, 39 Although counties and other municipal Pac. 328; Re Morgan, 26 Colo. 415, 47 L. corporations are public, as distinguished R. A. 52, 77 Am. St. Rep. 269, 58 Pac. 1071; from strictly private, corporations, and, in State v. Haun, 61 Kan. 146, 47 L. R. A. 369, political and governmental matters, are the 59 Pac. 340; Bessette v. People, 193 Ill. representatives and auxiliaries of the state, 334, 56 L. R. A. 558, 62 N. E. 215; Ritchie nevertheless, in all other matters, they are v. People, 155 III. 98, 29 L. R. A. 79, 46 Am, separate, distinct entities, independent of St. Rep. 315, 40 N. E. 454; Braceville Coal the state, with property rights which are Co. v. People, 147 Ill. 66, 22 L. R. A. 340, protected by the Constitution, and of which 37 Am. St. Rep. 206, 35 N. E. 62; Ramsey they cannot be deprived without due process v. People, 142 Ill. 380, 17 L. R. A. 853, 32 of law and just compensation. N. E. 364; Frorer v. People, 141 Ill. 171,

Dartmouth College Woodward, 4 16 L. R. A. 492, 31 N. E. 395; Millett v. People, 117 Ill. 294, 57 Am. Rep. 869, 7 N. Wheat. 518, 694, 4 L. ed. 629, 673; People E. 631; Gastineau v. Com. 108 Ky. 473, 49

v. Ingersoll, 58 N. Y. 1, 17 Am. Rep. 178; L. R. A. 111, 56 S. W. 705; Com. v. Perry, People ex rel. Einsfeld v. Murray, 149 N. 155 Mass. 117, 14 L. R. A. 325, 31 Am. St. Y. 367, 32 L. R. A. 344, 44 N. E. 146; LowRep. 533, 28 N. E. 1126; Templar V.

ell v. Boston, 111 Mass. 454, 15 Am. Rep. State Board of Eraminers, 131 Mich. 254, 39; Mt. Hope Cemetery v. Boston, 158 Mass. 90 N. W. 1058; State v. Loomis, 115 Mo. 509, 35 Am. St. Rep. 515, 33 N. E. 695; 307, 21 L. R. A. 789, 22 S. W. 350; Low Allen v. Jay, 60 Me. 124, 11 Am. Rep. 185; v. Rees Printing Co. 41 Neb. 127, 24 L. R. Atkins v. Randolph, 31 Vt. 226; State ex A. 702, 43 Am. St. Rep. 670, 59 N. W. 362 ; / rel. Wheeler v. Foley, 30 Minn. 350, 15 N. tract by which he was to receive a certain sum. By the provisions of what is known as the That his claim was duly proved, and a resolu- shop hours act of 1892, § 3, "no young person tion adopted by the proper board allowing the shall be employed in or about a shop for a amount against the general funds of the city ; longer period than seventy-four hours, includbut the defendant, as auditor, refused to draw ing mealtimes, in any one week." It was held a warrant for the amount on the ground that that the employment of one who was a "young the petitioner had permitted a number of labor person" within the meaning of the act, whose ers and mechanics to work upon the contract work was done partly inside the shop and partmore than eight hours per day, and had there. ly away from it in fetching newspapers and de by incurred penalties to a certain amount, un- livering them to customers for more than the der an act limiting the number of hours of daily prescribed number of hours, was a violation of service of laborers and mechanics, etc., upon the act; the court saying that it must consider public works of the state or any political sub- what was the object of the act and the misdivision thereof; and a judgment sustaining a chief which it was intended to prevent, and demurrer to the defendant's answer to that that that object was to protect the health of effect was affirmed. The grounds for sustain- young persons employed in shops, and not to ing the demurrer were : First, that the answer insure sanitary conditions. Collman v. Robshould have shown that there were penalties erts (1896) 1 Q. B. 457, 65 L. J. Mag. Cas. stipulated in the contract, in order to authorize N. S. 63, 74 L. T. N. S. 198, 44 Week. Rep. anyone to withhold any amount of the con- 445, 18 Cox C. C. 273, 60 J. P. 184. tract price ; second, that in such case the pen- By the factory and workshop act of 1878 (41 alties could only be withheld by the officer or E 42 Vict. chap. 16), $ 17, subsec. 2, "a child, person whose duty it was to pay the money young person, or woman, shall not, during any due under the contract ; and it was no part of part of the times allowed for meals in the facthe duty of the auditor to pay sueh money ; tory or workshop, be employed in the factory neither had he any authority to refuse to draw or workshop.” In Prior v. Slaithwaite Spinning his warrant.

Co. (1898) 1 Q. B. 881, 67 L. J. Q. B. N. S. In State v. Wilson, 65 Kan. 235, 69 Pac. 172, 615. 78 L. T. N. S. 532, 46 Week. Rep. 488, a judgment of the district court quashing an in- 62 J. P. 358, 19 Cox C. C. 54, it appeared that formation against the defendant for a violation the respondents, in accordance with the reof the eight-hour law, on the ground that a quirements of the act, had fixed and specified school district was not a municipality within in a notice affixed to their factory the period the meaning of that law, was reversed.

of employment and times allowed for meals, W. 375; Milam County v. Bateman, 54 Tex. same rule as to freedom of contract ap153; Grogan v. San Francisco, 18 Cal. 590. plies to both. The discretion of the legislature in re

Cleveland v. Clements Bros. Constr. Co. spect to the use and disposition of state 67 Ohio St. 197, 59 L. R. A. 775, 93 Am. funds and the funds and property of munici. St. Rep. 670, 65 N. E. 885; State ex rel. pal corporations is not absolute, but is re- Bramley v. Norton, 5 Ohio N. P. 183; Re strained by the Constitution.

Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; PeoRe Mahon, 171 N. Y. 263, 89 Am. St. ple v. Marx, 99 N. Y. 378, 52 Am. Rep. 34, Rep. 810, 63 N. E. 1107; Chapman v. New 2 N. E. 29; People v. Gillson, 109 N. Y. York, 168 N. Y. 80, 56 L. R. A. 846, 85 Am. 389, 4 Am. St. Rep. 465, 17 N. E. 343; St. Rep. 665, 61 N. E. 108; Re Greene, 166 Coion v. Lisk, 153 N. Y. 188, 60 Am. St. N. Y. 485, 60 N. E. 183; Bush v. Orange Rep. 609, 47 N. E. 302; People v. Hawkins, County, 159 N. Y. 212, 45 L. R. A. 556, 70 157 N. Y. 1, 42 L. R. A. 490, 68 Am. St. Am. St. Rep. 538, 53 N. E. 1121.

Rep. 736, 51 N. E. 257 ; People er rel. TyroSo far as the act in question operates to ler v. Warden of City Prison, 157 N. Y. bestow extra compensation upon the em- 116, 43 L. R. A. 264, 68 Am. St. Rep. 763, ployees of public contractors, and, without 51 N. E. 1006 ; People ex rel. Treat v. Coler, consideration, to increase the amount pay.

166 N. Y. 144, 59 N. E. 776; Godcharles v. able to contractors, it is clearly a giving of Wigeman, 113 Pa. 431, 6 Atl. 354; State v. the money of the state to and in aid of Goodwill, 33 W. Va. 179, 6 L. R. A. 621, private undertakings.

25 Am. St. Rep. 863, 10 S. E. 285; State v. Re Mahon, 171 N. Y. 263, 89 Am. St. Fire Creek Coal & Coke Co. 33 W. Va. 188, Rep. 810, 63 N. E. 1107; Fox v. Mohawk &

6 L. R. A. 359, 25 Am. St. Rep. 891, 10 S. H. River Humane Soc. 165 N. Y. 517, 51 L. E. 288; Ramsey v. People, 142 M. 380, 17 R. A. 681, 80 Am. St. Rep. 767, 59 N. E. L. R. A. 853, 32 N. E. 364; Frorer v. People, 353; Brown v. Maryland, 12 Wheat. 419, Braceville Coal Co. v.

141 Ill. 171, 16 L. R. A. 492, 31 N. E. 395 ;

People, 147 Ill. 66, 22 6 L, ed. 678. Messrs. L. Laflin Kellogg and Wil- 62; Ritchie v. People, 155 Ill. 98, 29 L. R.

L. R. A. 340, 37 Am. St. Rep. 206, 35 N. E. liam Vanamee, also for appellant:

A. 79, 46 Am. St. Rep. 315, 40 N. E. 454: If the legislature has no right to preGillespie v. People, 188 Ill. 176, 52 L. R. A. scribe the rate of wages, neither has it, in 283, 80 Am. St. Rep. 176, 58 N. E. 1007 : the absence of some good reason for the Re Preston, 63 Ohio St. 428, 52 L. R. A. public welfare, the right to prescribe the 523, 81 Am. St. Rep. 642, 59 N. E. 109 ; hours of labor. Both are matters for agree. Low v. Rees Printing Co. 41 Neb. 127, 24 ment between employer and employee. The L. R. A. 702, 43 Am. St. Rep. 670, 59 N. W.

one of the times for meals being from 12:30 costs; and that the case must be remitted to to 1 P. 1.; that one of the employees who the justices to convict. came within the description of "young per- A statute entitled "An Act to Regulate the son'

n" had his dinner in the mill because it was Manufacture of Clothing, Wearing Apparel, and warmer than outside. He had finished his din. Other Articles, etc.," and providing in the ner, and, because he had nothing else to do body that no female shall be employed in any to pass the time away, he got hold of the oil factory or workshop more than eight hours a can and was oiling the spindles. It was no day, will embrace only employment in the manpart of his duty to oil the spindles, and no ufacture of articles of the same kind as those one told him to do so ; nor did any of the expressly enumerated. Ritchie v. People, 155 managers know that he was oiling them. Ile Ill. 98, 29 L. R. A. 79, 46 Am. St. Rep. 315, would not receive any extra pay for oiling

40 N. E. 457. them. What he did was contrary to orders, and

The act of Massachusetts which provides that done of his own accord. The court held that

no minor under eighteen years of age, and no the mere fact that this boy did this to please woman over that age, shall be employed more himself and without orders from anyone did

than ten hours in any one day in any manufac. not make it any the less work, and that, there. turing estabiishment, also provides that any fore, he was working; that the policy of the

person, firm, or corporation employing such act in regard to this question of working at

persons in such establishment shall post a mealtimes was that persons who were regard printed notice in a conspicuous place in every

room where such help is employed, which notice ed by the legislature as comparatively defense

shall state the number of hours' work required less should have their mealtimes reserved in

of such person on each day of the week; and in tact, and for that purpose the legislation was

Com. v. Osborn Mill, 130 Mass. 33, it was derigorous. In response to the suggestion that

cided that a compiaint which alleged that a there were cases of hardship in which the mor

manufacturing corporation employed a woman al offense could not be brought home to anybody, in its manufacturing company without having and therefore the employer was liable although posted a printed notice in a conspicuous place he really was not responsible for what was in the room where she was employed, to wit, the done, the court said that the true answer to clothing room, stating the number of hours' that was,--the absolute and unfettered discre- work required of such persons on each day of tion which was vested in the justices, both of the week, as required by the statute, is insuffi

moderating the fine and in dealing with the cient in not alleging that the woman was em

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