WILLIAM H. ELLIS, Piff. in Err., such action, except in case of extraordinary v. emergency, and punishing intentional violaUNITED STATES. (No. 567.) tions of the act with fine or imprisonment.* Master and servant-eight-hour law-what 4. Dredging a channel in Boston harbor v. is not a public work of the United States, within the meaning of the act of August 1, UNITED STATES. (No. 664.) 1892, forbidding a contractor upon any pubEASTERN DREDGING COMPANY, Piff. in lic work of the United States, under penalty of fine or imprisonment, to permit or reErr., quire employees thereon to work more than v. eight hours each day. UNITED STATES. (No. 665.) Master and servant-eight-hour law-who are laborers or mechanics. 5. Masters, mates, engineers, firemen, crane men, deck hands, and scow men em ployed on tugs, dredges, and scows used in UNITED STATES. (No. 666.) dredging a harbor channel are not laborers or mechanics within the meaning of the act BAY STATE DREDGING COMPANY, Plff. of August 1, 1892, forbidding contractors , in Err., upon any public work of the United States V. or of the District of Columbia, under penUNITED STATES. (No. 667.) alty of fine or imprisonment, to permit or require laborers and mechanics employed BAY STATE DREDGING COMPANY, Plff. thereon to work more than eight hours each in Err., day. [Nos. 567, 664, 665, 666, 667, 668, 669.] BAY STATE DREDGING COMPANY, Piff. Argued and submitted April 23, 24, 1907. in Err., Decided May 13, 1907. N ERROR to the District Court of the INUR te Constitutional law-validity of eight-hour chusetts to review a conviction for permitlaw. ting mechanics employed in the construc1. The prohibition, under penalty of tion of a pier at the Boston navy yard to fine or imprisonment, except in case of ex. work more than eight hours a day. Affirmed. traordinary emergency, against requiring or Also permitting laborers or mechanics employed upon any of the public works of the United SIX WRITS of Error to the District Court of the United States for the District versed. Mr. D. T. Watson for plaintiff in error in Messrs. Edward E. Blodgett and G. Philip struction of a pier at the Boston navy yard, | Wardner for plaintiff in error in Nos. 664, does not create an "extraordinary emergency," within the meaning of the excep 665, 666. tion in the act of August 1, 1892, forbidding Messrs. W. Orison Underwood, Henry F. a contractor upon any public work of the Knight, and Johnson, Clapp, & Underwood United States, under penalty of fine or im- for plaintiff in error in Nos. 667, 668, 669. prisonment, to permit or require employees Solicitor General Hoyt, Attorney General thereon to work more than eight hours each Bonaparte, and Mr. Otis J. Carlton for deday. fendant in error. Mr. Justice Holmes delivered the opinion These are an indictment and informations borers employed thereon to work more than eight hours a day, under the mistaken as- under the act of August 1, 1892, chap. 352, sumption that an extraordinary emergency 27 Stat. at L. 340, U. S. Comp. Stat. 1901, exists, intentionally violates the provisions p. 2521, “Relating to the Limitation of the of the act of August 1, 1892, prohibiting Hours of Daily Service of Laborers and *Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, $ 22. Mechanics Employed upon the Public Works, Congress, as incident to its power to auof the United States and of the District of thorize and enforce contracts for public Columbia.” They all bring up the question works, may require that they shall be carof the constitutionality of the act, and they ried out only in a way consistent with its severally present some subordinate matters, views of public policy, and may punish a which will be considered under the respec- departure from that way. It is true that it tive cases. has not the general power of legislation posThe act limits the service and employment sessed by the legislatures of the states, and of all laborers and mechanics employed by it may be true that the object of this law the United States, by the District of Colum- is of a kind not subject to its general conbia, or by any contractor or subcontractor trol. But the power that it has over the upon any of the public works of the United mode in which contracts with the United States or the District, to eight hours in any States shall be performed cannot be limone calendar day, and makes it unlawful ited by a speculation as to motives. If the “to require or permit any such laborer or motive be conceded, however, the fact that mechanic to work more than eight hours in Congress has not general control over the any calendar day except in case of extraor-conditions of labor does not make uncondinary emergency.” By § 2 "any officer stitutional a law otherwise valid, because or agent of the government of the United the purpose of the law is to secure to it cerStates or of the District of Columbia, ortain advantages, so far as the law goes. any contractor or subcontractor whose duty One other argument is put forward, but it it shall be to employ, direct, or control any hardly needs an answer. A ruling was asked laborer or mechanic employed upon any of in Ellis's case, and is attempted to be susthe public works of the United States or of tained, to the effect that the government the District of Columbia, who shall inten- waived its sovereignty by making a contract, tionally violate any provision of this act, and that even if the act of 1892 were read shall be deemed guilty of a misdemeanor, into the contract, a breach of its requireand for each and every such offense shall up-ments would be only a breach of contract, on conviction, be punished by a fine not to ex- | and could not be made a crime. This is a ceed one thousand dollars or by imprison- mere confusion of ideas. The government, ment for not more than six months, or by purely as contractor, in the absence of speboth such fine and imprisonment, in the discial laws, may stand like a private person; cretion of the court having jurisdiction but, by making a contract, it does not give thereof." The plaintiffs in error were con-up its power to make a law, and it may tractors within the scope of the act, were make a law like the present for the reasons found guilty, and were fined. They all re- that we have stated. We are of opinion that quested rulings that the act was unconstitu- the act is not contrary to the Constitution tional, excepted to the refusal so to rule, of the United States. and on that ground brought their cases to We pass to the subordinate matters not this court. common to all the cases. In Ellis's case the The contention that the act is unconstitu- plaintiff in error agreed to construct and tional is not frivolous, since it may be ar- complete pier No. 2 at the Boston navy yard, gued that there are relevant distinctions be- within six months, according to certain spectween the power of the United States and ifications, and at a certain price. He found that of a state. But the arguments natu- more difficulty than he expected, although rally urged against such a statute apply he expected some trouble, in getting cerequally for the most part to the two juris- tain oak and pine piles called for by the dictions, and are answered, so far as a contract, and, having been delayed by that state is concerned, by Atkin v. Kansas, 191 cause, he permitted his associate in the busiU. S. 207, 48 L. ed. 148, 24 Sup. Ct. Rep.ness to employ men for nine hours, in the 124. In that case a contractor for work hurry to get the work done. The judge inupon a municipal boulevard was sentenced structed the jury that the evidence did not to a fine under a similar law of Kansas, and show an “extraordinary emergency” within the statute was upheld. We see no reason the meaning of the act. The judge was to deny to the United States the power thus right in ruling upon the matter. Even if, established for the states. Like the states, as in other instances, a nice case might be it may sanction the requirements made of left to the jury, what emergencies are withcontractors employed upon its public works in the statute is merely a constituent eleby penalties in case those requirements are ment of a question of law, since the deternot fulfilled. It would be a strong thing to mination of that element determines the say that a legislature that had power to extent of the statutory prohibition and is forbid or to authorize and enforce a contract material only to that end. The ruling was had not also the power to make a breach correct. It needs no argument to show that of it criminal; but, however that may be, the disappointment of a contractor with re was an gard to obtaining some of his materials—aa tug. The offenses were admitted or proved matter which he knew involved some diffi- subject to the questions that already have culty, of which he took the risk-does not been considered, and to the further quescreate such an emergency as is contemplated tions whether the dredging was upon one of in the exception to the law. Again, the con- the public works of the United States, and struction of the pier was desirable for the whether the persons employed were laborers more convenient repair of war ships, but it or mechanics within the meaning of the act, was not essential. Vessels had been docked with one or two lesser points that will not without it since 1835 or 1836, so that there need to be discussed. was no hot haste on that account, if, under Both of the phrases to be construed adany circumstances, that kind of need would mit a broad enough interpretation to cover have been enough. these cases, but the question is whether There is only one other question raised in that interpretation is reasonable, and, in Ellis's case. It is admitted that he was a a penal statute, fair. Certainly they may contractor within the meaning of the act, be read in a narrower sense with at least and that the workmen permitted to work equal ease. The statute says, "laborerg more than eight hours a day were employed and mechanics employed upon “public works,” and it is not denied upon any of the public works.” It does not that these workmen were "mechanics.” The say, and no one supposes it to mean, "any jury were instructed, subject to exception, public work.” The words "upon” and “any that, if the defendant intended to permit the of the," and the plural “works” import that men to work over eight hours on the calendar the objects of labor referred to have some day named, he intended to violate the stat kind of permanent existence and structural ute. The argument against the instruction unity, and are severally capable of being is that the word "intentionally” in the regarded as complete wholes. The fact that statute requires knowledge of the law; or the persons mentioned as employed upon at least that, to be convicted, Ellis must them are laborers and mechanics, words adnot have supposed, even mistakenly, that mitted not to include seamen, points in the there emergency extraordinary direction of structures and away from the enough to justify his conduct. The latter sea. The latter sea. The very great difficulty, if not improposition is only the former a little dis- possibility, of dredging in the ocean if such guised. Both are without foundation. If a a law is to govern it, is a reason for givman intentionally adopts certain conduct in ing the defendants the benefit of a doubt; certain circumstances known to him, and and the fact that until last year the govthat conduct is forbidden by the law under ernment worked dredging crews more than those circumstances, he intentionally breaks eight hours is a practical construction not the law in the only sense in which the law without its weight. A change seems to ever considers intent. The judgment in this have been made simply for the sake of case must be affirmed. consistency between the different departThe three cases against the Eastern Dredg- ments of the government, as is stated in ing Company were informations for employ- an order of the Secretary of War. A difing certain men alleged to be laborers or ferent conclusion is sought to be drawn mechanics more than eight hours a day upon from some appropriation acts, but they what was alleged to be one of the public simply refer to the improvement of harbors works of the United States; viz., dredging in general terms among the public works a portion of the 35-foot channel, so called, for which appropriations are made. The in Boston harbor. The cases against the improvement of a harbor may consist in the Bay State Dredging Company were similar, erection of structures as well as in the widexcept that the place was Chelsea creek in ening of a channel, or the explosion of a Boston harbor. Of the former, No. 664 was rock. It is unnecessary to lay special stress in three counts for employing two deck on the title to the soil in which the chanhands and an assistant crane man and deck nels were dug, but it may be noticed that hand upon a dredge; No. 665 was for em- it was not in the United States. The lanploying the master, crane man, and fireman guage of the acts is "public works of the of the dredge; and No. 666 was for em United States.” As the works are things ploying the captain, mate, engineer, and upon which the labor is expended, the most foreman of a tug that towed a scow, etc., natural meaning of "of the United States" and a man in charge of the scow. Of the is “belonging to the United States." Bay State Dredging Company cases, No. The words “laborers and mechanics” are 667 was for employing the captain, mate, admitted not to apply to seamen as that and fireman of a dredge; No. 668 was for name commonly is used. Therefore it was employing a crane man and deck hand on contended but faintly that the masters of the dredge; and No. 669 was for employing a the tugs could not be employed more than scow man and the captain and engineer of eight hours. But the argument does not stop with masters of tugs, or even with, and scows. The cases are of such general mates, engineers, and firemen of the same. importance that I am unwilling to allow Wilson v. The Ohio, Gilpin, 505, Fed. Cas. the reasons for my disagreement to remain No. 17,825; Holt v. Cummings, 102 Pa. 212, undisclosed. 48 Am. Rep. 199. The scows and the float- The first question is whether the men ing dredges were vessels. Rev. Stat. $$ 3, named in the informations were employed 4612, U. S. Comp. Stat. 1901, pp. 4, 3120. by the defendants "upon any of the public They were within the admiralty jurisdic-works of the United States” within the tion of the United States. The Robert W. meaning of those words as Congress used Parsons (Perry v. Haines) 191 U. S. 17, 48 them. Let it be conceded, as I think it L. ed. 73, 24 Sup. Ct. Rep. 8. A number of should be, that "any of the public works” cases as to dredges in the circuit and dis- is a narrower expression than "any public trict courts are referred to in Bowers Hy work” would be; that public works must draulic Dredging Co. v. Federal Contracting | “have some kind of permanent existence and Co. 148 Fed 290. Therefore all of the hands structural unity, and be severally capable mentioned in the informations were sea- of being regarded as complete wholes,” and men within the definition in an earlier stat- still the works here in question fall within ute of the United States. Rev. Stat. $ 4612. the description. The dredging of channels Saylor v. Taylor, 23 C. C. A. 343, 42 U. in our water ways is not mere digging. It s. App. 206, 77 Fed. 476. See also act of has for its purpose the creation of something March 3, 1875, chap. 156, § 3. 18 Stat. at L. with as visible a form as a cellar to a 485, U. S. Comp. Stat. 1901, p. 3324; Bean v. house, a sunken road, a well, a tidal basin, Stupart, 1 Dougl. K. B. 11; Disbrow v. The or a sea-level canal. Surely all these are Walsh Brothers, 36 Fed. 607. "works," and, if constructed by the governThey all require require something of the ment, “public works.” Artificial water ways training and are liable to be called upon may not be so easily read out of the statfor more or less of the services required ute by any definition, and I cannot resist of ordinary seamen. The reasons which ex- | the belief that the definition accepted in the clude the latter from the statute apply, opinion of the court does not accomplish it. although perhaps in a less degree, to them. Let us consider the history of one of Whatever the nature of their work, it is these artificial approaches from the sea, such incident to their employment on the dredges as the channel in Boston harbor, and see and scows, as in the case of an engineer whether, when it is completed, it ought not or coal shoveler on board ship. Without to be regarded as a complete whole, havfurther elaboration of details we are of ing a permanent existence and structural opinion that the persons employed by the unity. When a work of this kind is protwo defendant companies were not laborers posed, the engineers of the Army, first obor mechanics, and were not employed upon taining the authority from Congress, survey any of the public works of the United States the region, consider the commercial reasons within the meaning of the act. As in other which support the project, and make plans cases where a broad distinction is admitted, for it and estimates of its cost. Upon conit ultimately becomes necessary to draw sideration of the engineers' report, Congress, a line, and the determination of the pre- if it approves the project, makes an apcise place of that line in nice cases always propriation for its construction, designating seems somewhat technical, but still the line it expressly as of the "public works” of must be drawn. the United States. For example, the apJudgment in 567 affirmed. propriation for one of the works in quesJudgments in 664, 665, 666, 667, 668, and tion in these cases is in the following terms: 669 reversed. “The following sums of money are hereby appropriated ... for the conMr. Justice Moody took no part in the struction ... of the public works here. decision of 567. inafter named; .. for improving said harbor in accordance with the report Mr. Justice McKenna is of opinion that report submitted in House Document, numthe work upon the dredging of Chelsea ber one hundred and nineteen, Fifty-sixth creek was within the act. In other particu- Congress, Second Session, by providing chanlars he agrees with the judgment of the nels thirty-five feet deep, .. six huncourt. dred thousand dollars." That is to say, at the very threshold of the inquiry, we find Mr. Justice Moody, dissenting: that the Congress which had forbidden a I am unable to agree with the opinion of longer day's work than eight hours upon the court, so far as it relates to the employ: "the public works of the United States" ment for more than eight hours a day of had, upon undertaking this very work, dethe men engaged in work on the dredges l' liberately called it a “public work.” The cogency of the argument arising from the of navigable channels. Thus Congress, which use of the same words in the eight-hour has created these artificial channels, keeps law as in the appropriation law cannot be them under the constant repair, supervision, met by the suggestion that it is easy to control, and protection of the government. read the words in the eight-hour law in a When the work is done the government, narrower sense than they were used in the through the Navy Department and the Coast appropriation law. The question here is and Geodetic Survey, makes, publishes, and not how the words may be interpreted, but issues charts which show their length, depth, how they ought to be interpreted. There and width in the minutest detail, and the is no necessity to explore the possibilities buoys and lights which enable the mariner of escape from the intention which Congress to use them with safety. He, like Congress, has made sufficiently plain. enters upon the channels, regarding them as In the Digest of Appropriations, made and completed wholes, as having a permanent published under the direction of Congress, existence, and, if he strays beyond their these constructions are constantly denom- limits, he will quickly discover that they inated as "works," and of course they are have a tangible form and structural unity. "public.” After the channel is completed, Doubtless they are subject to alteration by it is buoyed and lighted by the government, the action of the elements, but so is a and frequently defended by land fortifica- building; and, given the constant repair and tions constructed for that purpose. Some- care which all structures need in order to times breakwaters or jetties are constructed prevent their disintegration, they are as for the purpose of preserving it from im- permanent as the Capitol building itself. pairment. The general appropriation act Quotations from acts of Congress might be of September 19, 1890 (26 Stat. at L. 426, multiplied indefinitely showing that, with chap. 907), contains some provisions of per- respect to channels, Congress had appromanent law, which are material here. It priated for them as “works,” and for their begins by appropriating “for the construc- repair and maintenance as "works;” but if :” tion, completion, repair, and preservation the acts already referred to will not show of the public works hereinafter named.” that Congress regarded such water ways as Then follow many specific appropriations public works, no number of others will do for the improvement of rivers and harbors. it. I suppose it would be conceded that Section 3717 of the Revised Statutes (U. S. breakwaters or jetties were public works. Comp. Stat. 1901, p. 2496) was as follows: Is it to be supposed that Congress intended “Whenever the Secretary of War invites that men who work on them should work proposals for any works, or for any material only eight hours a day, while those who or labor for any works, there shall be sepa- work near by on the channel itself should rate proposals and separate contracts for be exempted from this restriction? I coneach work, and also for each class of ma-clude, therefore, that the labor performed terial or labor for each work." Section 2 was upon “the public works of the United of this act (U. S. Comp. Stat. 1901, p. States." 3527) provided that that section of the Re- The eight-hour day is prescribed by the vised Statutes should not be construed to statute only for laborers and mechanics. prohibit “the cumulation of two or more These words of description have never been works of river and harbor improvement in supposed to include, and would not include, the same proposal and contract, where such all those who do work of any kind. Alworks are situated in the same region and though the extent of these words is someof the same kind or character.” Of course, what vague, nevertheless they were used the works here referred to are public works. in a technical sense, to describe classes Section 6 prohibits the deposit of material of employees. The second question is in harbors, navigable rivers or waters of whether the men named in the informathe United States. Section 7, as amended tion were laborers or mechanics. by $ 3 of the act of July 13, 1892 (27 Stat. Seamen, whether employed in the Navy at L. 88-110, chap. 158), makes it unlawful or other marine service of the United States, "to excavate or fill, or in any manner to or by contractors with the United States, alter or modify the course, location, condi- are not laborers or mechanics. They, while tion, or capacity of, any port, roadstead, laboring as seamen, could no more be haven, harbor, harbor of refuge, or inclosure brought within the limits of an eight-hour within the limits of any breakwater or of day than a physician, a lawyer, or a clergythe channel of any navigable water of the man. They have always been regarded with United States, unless approved and author- special favor by all governments, and a ized by the Secretary of War.” The act of series of laws specially applicable to them March 3, 1899 (30 Stat. at L. 1151, chap. control and affect their conditions of labor. 425, U. S. Comp. Stat. 1901, p. 3540), makes The men employed on the seagoing tug, additional safeguard against the obstruction from the master down, were seamen, and |
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